504 So. 2d 550 | Fla. Dist. Ct. App. | 1987
Lead Opinion
Yet another sentencing guidelines issue is now before us. At the conclusion of an armed robbery, the victim was told to give the defendant five or ten minutes before calling for help; otherwise, the latter would return and blow the former away.
The trial judge found this threat a clear and convincing reason to depart the guidelines because:
In the course of the commission of the offense, the defendant placed the victim in great fear for his life by threatening the victim, with the apparent ability to carry out that threat, with death. The defendant told the victim that if the victim were to disregard the instructions of the defendant that the defendant would come back and “blow him away.” This assault was beyond, and separated by time from the initial assault which constituted one of the elements of the offense for which the defendant is charged.
We disagree with the trial judge and reverse. Section 812.13(3), Florida Statutes (1985), clearly provides that an act shall be deemed to be in the course of committing a robbery if it occurs as a component of flight after the commission thereof. As we see it, the threat here uttered was an act in aid of flight or escape. Escape, inevitably, is 'the ultimate goal of every robber, for without it his evil design cannot be fulfilled. Several cases have held that actual violence in aid of escape are but components of a robbery. Ben v. State, 461 So.2d 286 (Fla. 2d DCA 1985); Royal v. State, 452 So.2d 1098 (Fla. 5th DCA 1984); Stufflebean v. State, 436 So.2d 244 (Fla. 3d DCA 1983); State v. Douglas, 337 So.2d 407 (Fla. 1st DCA 1976). That being so, the mere threat of violence can hardly constitute a separate act.
The trial court also held that the victim was placed in additional fear and trauma by the threat, thus justifying departure. However, as of the time of that pronouncement, the court below did not have the benefit of Grant v. State, 11 F.L.W. 2084 (Fla. 4th DCA Oct. 1, 1986), rehearing granted, 12 F.L.W. 236 (Fla. 4th DCA Jan. 7,1987), in which we recently held that fear and trauma are not clear and convincing reasons for departure “as these elements are inherent components of the crime of robbery,” unless the trauma is greater
Accordingly, we REVERSE AND REMAND FOR ENTRY OF A SENTENCE IN ACCORDANCE WITH THE GUIDELINES.
Rehearing
THE MOTION FOR REHEARING AND/OR MODIFICATION IS GRANTED.
In our original opinion, we held that the threat was made in aid of flight and did not constitute a separate act from the robbery. To support this view, we stressed the wording of section 812.13(3) which provides that an act in the course of committing a robbery occurs if it is committed in flight after the commission thereof. However, our Supreme Court, in Royal v. State, 490 So.2d 44 (Fla.1986), came to a different conclusion and held that force or putting one in fear, after the completion of a robbery, is not a component of it. This holding, which overruled Stufflebean v. State, 436 So.2d 244 (Fla. 3d DCA 1983), and Royal v. State, 452 So.2d 1098 (Fla. 5th DCA 1984), requires us to delete that discourse from our original opinion. However, we now arrive at the same result as we did initially because the threat in the case at bar was made before the flight and was contemporaneous with the taking of the property. Our initial result, therefore, comports with the Supreme Court version of Royal if not for the same reason.
Accordingly, we reaffirm our prior opinion, but delete the discourse on the statute and the cases overruled.
We would be frank to admit that our original opinion was wanting. Obviously, it should have considered the recent Supreme Court version of Royal. This omission was forcefully raised in the petition for rehearing, but Royal was not previously cited by the state or the public defender.
HERSEY, C.J., and WALDEN, J., concur.
