Daniels v. State

570 So. 2d 319, 1990 Fla. App. LEXIS 6940, 1990 WL 204403
District Court of Appeal of Florida·Decided September 14, 1990·No. Nos. 87-02741, 87-02742·Published·Cited by 1 cases

Opinion

EN BANC

CAMPBELL, Judge.

Appellant challenges his conviction and sentence for robbery with a deadly weapon. He also challenges the additional sentence imposed for his violation of probation on a prior marijuana charge. Appellant had pled nolo contendere to a charge of delivery of marijuana in November of 1985, and was sentenced to probation. While on probation, on November 21, 1986, appellant was convicted, in absentia, of robbery with a firearm. Appellant was subsequently charged with violating his probation on the marijuana charge by failing to report to his probation officer. The probation violation was unrelated to appellant’s robbery conviction. After appellant was located, he was sentenced on September 18, 1987, for both the robbery and the subsequent probation violation on the marijuana charge. The court used a single guidelines score-sheet showing a recommended guidelines sentence of seven to nine years. The court sentenced appellant to nine years imprisonment for the robbery conviction and to a consecutive five-year term on the marijuana charge. We affirm both his conviction for robbery with a deadly weapon and his subsequent consecutive sentences for that robbery and for delivery of marijuana.

Appellant challenges his robbery conviction on two grounds. He first alleges that the trial court erred in allowing his case to proceed to trial after appellant voluntarily absented himself after the jury was selected but prior to it being sworn. We find no error in the trial judge allowing appellant’s trial to proceed under the circumstances of this case. It is not disputed that appellant voluntarily absented himself after voir dire. Appellant and a codefend-ant were present at trial on November 18, 1986, when voir dire was conducted and completed. Appellant failed to appear thereafter. Florida Rule of Criminal Procedure 3.180(b) provides that where a defendant is present at the beginning of a [320]*320trial but thereafter voluntarily absents himself from the presence of the court, the trial, through the return of a verdict, shall proceed as though the defendant were present. The Florida Supreme Court in State v. Melendez, 244 So.2d 137, 139 (Fla.1971), stated: “It is settled law that trial begins when the selection of a jury to try the case commences.”

Appellant next challenges his robbery conviction on the basis that the trial judge erred in instructing the jury on the elements of robbery. The trial judge’s instructions charged the jury that an element of robbery was a temporary or permanent intent to deprive the victim of his property. We find no error in that charge as we construe the law of Florida in regard to the elements of robbery as they exist today. In reaching that conclusion, we recede from the previous holding of this court in Hall v. State, 505 So.2d 657, 658 (Fla. 2d DCA), cause dismissed, 509 So.2d 1117 (Fla.1987), in which we stated that an essential element of proof in regard to the crime of robbery is “that the accused had the specific intent to permanently deprive the owner of property.” (Emphasis supplied.)

There are numerous Florida cases in recent years that discuss the criminal intent required in regard to the taking of property of another to commit the crime of robbery in Florida since the legislature amended the larceny or theft statutes by enacting the Florida Anti-Fencing Act by chapter 77-342, § 2, Laws of Florida (1977), codified as sections 812.012-812.037. See State v. Dunmann, 427 So.2d 166 (Fla.1983); Bell v. State, 394 So.2d 979 (Fla.1981); State v. Allen, 362 So.2d 10 (Fla.1978); Hall; Hilty v. State, 386 So.2d 1236 (Fla. 2d DCA 1980), rev. denied, 392 So.2d 1379 (Fla.1981); Vaughn v. State, 460 So.2d 505 (Fla. 3d DCA 1984); Green v. State, 414 So.2d 1171 (Fla. 5th DCA), rev. denied, 422 So.2d 842 (Fla.1982); Baxley v. State, 411 So.2d 194 (Fla. 5th DCA 1981), rev’d, State v. Dunmann, 427 So.2d 166 (Fla.1983); State v. McNeill, 407 So.2d 1021 (Fla. 4th DCA 1981); Faison v. State, 390 So.2d 728 (Fla. 5th DCA 1980). Those cases and others have generally discussed the issue and rightly concluded that theft and robbery in Florida, regardless of recent amendments to our theft statutes, still require a specific criminal intent in regard to the taking of the property of another. Those cases have also rightly concluded that the specific intent necessary is the intent to commit theft or larceny, or the intent “to steal.” The confusion which appears to us to have been communicated to our trial courts with regard to the specific intent necessary to commit robbery has resulted from a failure to clearly define that specific intent subsequent to the statutory changes in the necessary elements of larceny or theft made by the Anti-Fencing Act in 1977.

Without discussing each of the above cited cases individually, it is sufficient for us to observe that those which have considered the issue have rightly concluded that theft in Florida, as proscribed by section 812.014(1), Florida Statutes (1987), now includes the obtaining or using of the property of another with intent to either temporarily or permanently deprive the owner of the property. Unfortunately, several courts have appeared to conclude, as did this court in Hall, that robbery in Florida still requires a specific intent to permanently deprive another of property and have specifically or by inference held that a specific intent to temporarily deprive is not sufficient. That appears to us now to be clearly wrong. But see Green, 414 So.2d at 1173, n. 3 1. “Theft” in Florida has clearly supplanted the former crime known at common law and by previous statutory definitions in this state as “larceny.” The offenses of “larceny” and “stealing” are now encompassed by and completely subsumed within section 812.014(1). Therefore, the old crimes formerly described as larceny, stealing, embezzlement and others, are all now known as “theft” and defined by section 812.014(1) as follows:

[321]*321(1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit therefrom.
(b) Appropriate the property to his own use or to the use of any person not entitled thereto.

The conclusion that “theft” in Florida now encompasses the former crimes such as larceny, stealing' and embezzlement is clearly supported by section 812.012(2), Florida Statutes (1987), where the phrase “obtains or uses,” used in defining theft above, is itself defined as any manner of:

(a) Taking or exercising control over property.
(b) Making any unauthorized use, disposition, or transfer of property.
(c) Obtaining property by fraud, willful misrepresentation of a future act, or false promise.
(d) 1. Conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception; or
2. Other conduct similar in nature.

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Daniels v. State, 570 So. 2d 319, 1990 Fla. App. LEXIS 6940, 1990 WL 204403 (Fla. Ct. App. 1990).

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