Birdsong’s Barry criminal law students might remember that Judge Eaton from Seminole County visited our class the first week of school. Judge Eaton, along with his former law Clerk, Stefanie Ciesco, have written a very timely article that all my criminal law students should read while we discuss theft and robbery. The question the Judge addresses sometimes comes up on bar exams!
When is a Robbery Not a Robbery?
Arguing Compound Offenses and Permissible Lesser Included Offenses
Judge O. H. Eaton, Jr., and Stefanie C. Ciesco
Typically, the only defense to a charge of robbery is mistaken identity. However, there may be another defense if the taking of the property that is the subject of the larceny was completed before the use of force, violence, assault, or putting in fear occurred. This defense may apply in many cases involving a “shoplifting with a push.”
In Stuckey v. State, store employees of Sam’s Club observed the defendant concealing DVDs in the waistband of his pants. He was confronted by the employees after he walked past the cash registers and past the exit doors without paying for the DVDs. The defendant was apprehended outside the premises after he struggled with employees by flailing his arms and kicking. The State Attorney charged the defendant with robbery, a second degree felony, and the case proceeded to trial.
During final arguments, the defendant asserted that “robbery requires the intent to take by force” and the defendant lacked that intent at the time he resisted. He told the jury that the theft was completed by the time he was confronted by store employees and his intent in resisting the merchant was to escape and not to maintain possession of the DVDs.
The defendant requested the trial judge to instruct the jurors that they could convict him of two permissible lesser included offenses, resisting a merchant and petit theft. The trial judge declined and instructed the jurors that they could convict the defendant of only one lesser included offense. During deliberations, the jurors sent a question to the trial judge asking whether they could pick more than one of the lesser included offenses. The trial judge instructed the jury that they could only convict the defendant of one of the lesser offenses, and the defendant objected to that instruction. The defendant was subsequently convicted of robbery and sentenced to thirty years in prison as a violent career criminal and prison releasee reoffender.
On appeal, the defendant argued: (1) he was entitled to have the jury consider his theory of defense – that he was guilty of resisting a merchant and petit theft because the evidence supported the charges and the information “alleged facts sufficient to include the lesser offenses” and (2) denying his request to allow the jury to consider both of the lesser included offenses denied his right to have a jury exercise its pardon power. The appellate court agreed, reversed the conviction, and ordered a new trial.
In order to understand the ruling of the court, it is helpful to consider the origins and elements of the crime of robbery. Robbery at common law was defined as “the felonious taking, without claim of right, of a thing of value from the person or presence of another, against his will, by force or putting him in fear.” The Florida Legislature has expanded the common law definition to include cases involving relatively low level offenders that would not have met the definition of robbery at common law. The present statute provides the following definition of robbery:
“Robbery” means the taking of money or other property which may be subject of larceny from the person or custody of another, with the intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
The statute defines an act to be “in the course of the taking” if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events. While it is clear the legislature intended to expand the common law definition of robbery, it is equally clear that the force, violence, assault, or putting in fear must take place before the taking is completed.
Robbery is a compound offense that requires (1) a taking of property and (2) force, violence, assault, or putting in fear, for the crime to be committed. It is a crime against property and a crime against persons. It is therefore permissible for the defendant to be convicted of multiple lesser included offenses, one against property and one against persons, without violating double jeopardy principles.
A defendant is entitled to have the jury instructed on a theory of defense if the law recognizes it and the facts in evidence support it. Lesser included offenses are divided into two categories: necessarily lesser included offenses and permissive lesser included offenses. The trial court is obligated to instruct the jury on any necessarily included lesser offense even when “the evidence shows that this lesser offense could not have been committed without also committing the charged offense.” “The requirement that a trial judge must give a requested instruction on a necessarily lesser included offense is bottomed upon recognition of the jury’s right to exercise its pardon power.” In contrast, “an instruction on a permissive lesser included offense should be precluded only where there is a total lack of evidence of the lesser offense.” In robbery cases involving retail theft, petit theft is a necessarily lesser included offense and resisting a merchant is a permissive lesser included offense.
The question of whether force or violence takes place “during the course of the taking” is usually a question of fact. One way a defendant can avoid having the jury consider this issue is to abandon the stolen property before the violence takes place. In Simmons v. State, the defendant concealed merchandise on her person and exited the department store without paying for it. She was escorted back into the store by two store employees. She removed the property from its place of concealment and threw it on the floor. The store employees instructed her to accompany them to the store security office. While on the way there, the defendant resisted and struggled with one of the employees. The defendant was subsequently convicted of robbery. The appellate court ruled that the taking was completed without any use of force because the property was abandoned before any force was used.
In Santilli v. State, the defendant did not abandon the stolen merchandise. A security guard observed him stealing a greeting card and saw him get into his car. A police officer ran to the driver’s door, identified himself, and attempted to place the defendant under arrest. The defendant attempted to flee, injuring the officer. At trial the defendant argued that the series of events “has to end sometime” and “when a defendant leaves the scene of the crime without the use of force, and without knowing he is being followed, the taking is over.” In Santilli, the appellate court stated, “We cannot subscribe to the theory that continuous possession of the stolen property can evolve into a robbery as a result of force used to retain that possession irrespective of the time and space separating the taking and the force.” However, under the facts presented, the Court held that a jury question had been presented.
The very nature of shoplifter apprehension often results in force or violence taking place after the property has been stolen. In Shaeffer v. State, the appellate court stated, “Because the best practice in shoplifting apprehension is to wait until the offenders are outside the store — to assure that the criminal intent comes to full fruition — the eventual confrontation giving rise to the use of force is still considered to be in the course of the taking.” Thus, resisting a merchant during an attempt can support a conviction of robbery, even if the force or violence used is minimal.
Under similar circumstances to Stuckey, the defendant in Schaeffer v. State, was also convicted of robbery. The defendant and two accomplices were observed shoplifting items in a Burdines department store by an employee of the store. The employee allowed the defendant and his accomplices to exit the store before pursuing them. Once outside, the employee grabbed one of the accomplices by his jacket but he escaped. When the employee turned her attention on the second accomplice, the defendant sprayed mace in the employee’s face. The defendant then grabbed the purse with the shoplifted items and fled the scene. The court in Schaeffer pointed out that the facts in the case were “more akin to a series of discrete misdemeanor crimes, i.e., shoplifting followed by resisting a merchant or assault or battery, than the one crime of robbery.” However, since the elements of the crime of robbery were “technically and fortuitously met” the conviction was affirmed. Schaeffer failed to request an instruction on multiple lesser included offenses.
According to the court in Stuckey, the legislature’s “statutory embellishment on the common law crime of robbery gives rise to the possibility that force employed after a theft may either give rise to a ‘robbery’ or ‘resisting a merchant,’ depending on the factual determination whether the two acts were a part of a continuous series of acts or events.” However, it is a “factual issue for the jury to determine whether or not there was a continuous series of acts or events to prove the elements of robbery,” jurors must be properly instructed on the law pertaining to the case, including lesser included offenses.
The standard jury instruction for robbery merely tracks the statute and is insufficient in defining the meaning of the words “in the course of the taking” in retail theft cases. When the standard instruction is insufficient, the trial judge is required to give a special instruction that adequately informs the jury of the law. The following instruction is suggested:
“In the course of the taking” means that the act occurred prior to, contemporaneous with, or subsequent to the taking of the property and that the act and the taking of the property constitute a continuous series of acts or events. However, there can be no robbery if the taking was completed prior to the use of force, violence, assault, or putting in fear. Stated differently, the force, violence, assault, or putting in fear must not have been directed to accomplish the taking or to escape from the crime scene. In considering whether the force, violence, assault, or putting in fear was directed to accomplish the taking or escape from the crime scene, you may consider whether the defendant had departed the premises where the taking occurred prior to the force, violence, assault, or putting in fear having taken place. The question of whether the taking was completed so as to preclude a conviction of robbery is a question of fact, to be decided by you, from the evidence.
The court’s decision in Stuckey has the effect of bringing some common sense back into the expanded definition of robbery. It gives the jury the opportunity to reduce some second degree felonies to the misdemeanor level where they belong. Juries can now be allowed to decide whether there was a robbery or a “shoplifting with a push”.
 Stuckey v. State, 972 So. 2d 918 (Fla. 5thDCA 2007), rev. den., 980 So. 2d 491 (Fla. 2008).
 Am. & Eng. Enc. Law (2d Ed.) p. 991; 54 C. J. 1007; Pippin v. State, 102 Fla. 1124, 136 So. 833 (Fla. 1931); Richards v. Mayo, 108 Fla. 308, 146 So. 94 (Fla. 1933).
 Fla. Stat. § 812.13(1)(2008).
 Fla. Stat. § 812.13(3)(b).
 Foster v. State, 596 So. 2d 1099, 1104 n. 6 (Fla. 5thDCA 1992) (Cowart, J., dissenting).
 Cloyd v. State, 943 So. 2d 149 (Fla.3d DCA 2006).
 Fryer v. State, 732 So.2d 30, 33 (Fla. 5th DCA, 1999).
 State v. Wimberly, 498 So.2d 929, 932 (Fla. 1986) (citing State v. Baker, 456 So.2d 419, 422 (Fla. 1984)) So.2d
 Evans v. State, 831 So.2d 808, 810 (Fla.4th DCA, 2002) (citing Amado v. State, 585 So.2d 282, 282-283 (Fla. 1991)).
 Florida Standard Jury Instructions in Criminal Cases – Schedule of Lesser Included Offenses.
 Simmons v. State, 551 So.2d 607, 608 (Fla. 5th DCA, 1989).
 Santilli v. State, 570 So.2d 400, 401 (Fla.5th DCA, 1990).
12 Schaeffer v. State, 779 So.2d 485, 487 (Fla.2d DCA, 2000)(Seals, Asso. J., concurring). (Shaeffer’s conviction was affirmed without opinion. However, in a concurring opinion, Judge James H. Seals took the opportunity to state the underlying facts and point out the case is a “prime example of what can go wrong when sentences are decided outside the courtroom by someone other than a presiding judge.” Shaeffer was sentenced to 30 years in prison as a Recent Releasee Reoffender for this relatively minor shoplifting and battery incident.)
 Prine v. State, 784 So. 2d 1239 (Fla.2d DCA 2001). (The defendant in this case used minimal force to transform the misdemeanor into a felony. The property in question in this case was a socket wrench. The prosecutor in this case “exercised his sole discretion” and elected to treat the defendant as a recent releasee reoffender. The defendant was sentenced to a minimum mandatory fifteen years in prison at a cost of over $250,000.00.)
 Schaeffer at 486.
 Stuckey at 921.
 Lemus v. State,641 So.2d 177, 179 (Fla. 5th DCA, 1994).
 Polite v. State, 973 So. 2d 1107 (Fla. 2007).
The Honorable O. H. Eaton, Jr., is a Circuit Judge in the Eighteenth Judicial Circuit, Seminole County. He is a graduate of the University of Florida, College of Law. Judge Eaton is a past Chair of The Florida Bar Criminal Procedure Rules Committee, a former member of the Criminal Law Section Executive Council, and presently chairs the Supreme Court Criminal Court Steering Committee. Judge Eaton teaches the Handling Capital Cases course at the Florida College of Advanced Judicial Studies and at the National Judicial College, University of Nevada, Reno.
Stefanie C. Ciesco is a recent graduate of Florida A & M Collegeof Law and was an extern with the Circuit Court in Seminole County during 2007- 2008. She obtained her undergraduate degree at the University of Central Florida.