5D01-1913 Burris v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-1913

Case Date: 09/09/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2002

DANIEL BURRIS, Appellant, v. Case No. 5D01-1913 STATE OF FLORIDA, Appellee. / Opinion filed September 13, 2002 Appeal from the Circuit Court for Orange County, Bob Wattles, Judge. James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee. ORFINGER, R. B., J. Daniel Burris appeals his conviction of robbery with a deadly weapon. He contends that the information charging him with robbery with a deadly weapon failed to allege that offense as a matter of law. We agree and reverse. While driving his automobile through the parking lot of a Wal-Mart store, Burris reached out of the automobile's window and attempted to snatch a woman's purse. The victim would not release the purse, and as the automobile moved forward, she was knocked off her feet

and dragged along the pavement. After the strap broke, the victim lost her hold on the purse, and Burris drove away, leaving the victim with numerous cuts, scratches, and bruises. Based on information received from witnesses to the crime, Burris was arrested and charged by information with robbery with a deadly weapon. Specifically, the information alleged that in violation of section 812.13(2)(a), Florida Statutes (2001), by force, violence, assault or putting in fear, Burris took the victim's purse with the intent to temporarily or permanently deprive the victim of her right to it, "and in the course of committing said robbery, Daniel Jacob Burris did use a deadly weapon, to-wit: an automobile." (emphasis added). To the extent relevant for purposes of this appeal, section 812.13, Florida Statutes (2001) provides: (1) "Robbery" means the taking of money or other property which may be the subject of larceny from the person or custody of another, with 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. (2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084. (b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (c) If in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (emphasis added). Burris filed a motion to dismiss claiming that the information was defective because

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it failed to allege that he "carried" a deadly weapon as required by section 812.13(2)(a); rather, the information alleged that he "used" a deadly weapon, specifically an automobile. He further argued that because an automobile could not be "carried" in the course of committing a robbery, he could not be convicted of robbery with a deadly weapon. The trial court denied the motion to dismiss. Reserving the right to appeal the denial of his motion to dismiss, Burris pled no contest to the charge of robbery with a deadly weapon, and this appeal followed. There is no question that Burris used his automobile in the course of committing the robbery. It is also without question that an automobile may qualify as a "deadly weapon," if used, as was the automobile in this case. See Jenkins v. State, 747 So. 2d 997 (Fla. 5th DCA 1999). However, as in the trial court, Burris contends that because he did not "carry" an automobile, but simply "used" one, the charge of robbery with a deadly weapon was legally insufficient and should have been reduced to simple robbery1 or robbery by sudden snatching.2 In denying the motion to dismiss, the trial court properly relied on Jackson v. State, 662 So. 2d 1369 (Fla. 1st DCA 1995), wherein the first district court said: We agree with the trial court that the intended meaning of the word "carry," as used in section 812.13(2)(a), must be sought by use of logic and common sense. The verb "carry" has many meanings. One of the principal meanings ascribed to it is "to wear, hold, or have around one," in the sense of possessing. The Random House Dictionary of the English Language 319 (2d ed. 1987) (unabridged). We are of the opinion that ascribing such a
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