5D06-3630 Stephan Stuckey v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D06-3630

Case Date: 12/03/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2007

STEPHAN KENT STUCKEY, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed December 7, 2007 Appeal from the Circuit Court for Seminole County, Marlene M. Alva, Judge. Raymond M. Warren, of Warren & Warren, P.A., Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D06-3630

GRIFFIN, J. Stephan Kent Stuckey ["Defendant"] appeals the judgment and sentence he received for the offense of robbery. He raises several issues, only one of which has merit. We agree that the trial court erred in instructing the jury and that reversal is required. On January 20, 2004, Defendant and Austin Donald McElroy were observed in a Sam's Club store, concealing DVDs in the waistband of their pants. Immediately upon

exiting the store, Defendant and McElroy were confronted by Sam's Club employees. Defendant struggled with the employees who apprehended him. On March 17, 2004, the State charged Defendant with robbery, a second-degree felony. 1 Defendant was initially tried and convicted of the charged offense in 2004, and sentenced to thirty years' imprisonment as a violent career criminal and prison releasee reoffender. On appeal, this Court reversed, concluding that the trial court erred by refusing to instruct the jury on the lesser offense of resisting a merchant. We remanded for a new trial. Stuckey v. State , 907 So. 2d 1208 (Fla. 5th DCA 2005). Defendant was tried again in 2006. Three witnesses were presented.

Christopher Meade, a Sam's Club loss prevention officer, testified that he was walking through the store when he observed Defendant and McElroy with a number of DVDs in their cart. Meade follo wed Defendant and McElroy to an area of the store that was without surveillance cameras. He observed Defendant and McElroy take the DVDs from the cart and stuff them into their pants. Meade radioed the store manager, Mike Clinard. Meade asked Clinard to gather another store employee and meet him outside. Meade then watched Defendant and McElroy as they proceeded past the registers, past the inner exit doors, and ultimately past the outer exit doors. While

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Specifically, the State charged: [O]n or about January 20, 2004, [Defendant], did take money or other property, from the person or custody of another, Chris Meade or Robert Becker, with the intent to permanently or temporarily deprive said person of said property, and in the course of the taking did use force, violence, assault, or putting in fear, and further, [Defendant] had previously been convicted two or more times of theft . . . .

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Clinard and another store employee, Bobby Becker, went after McElroy, Meade confronted Defendant. Meade identified himself and placed his hand on Defendant's abdomen to let him know that he knew there was merchandise there. At that point, Defendant swung his arm back as if to hit him, and fled. With the assistance of Becker, Meade took Defendant to the ground and handcuffed him. During the struggle several DVD's fell to the ground. Becker was the second witness called. He testified that he observed Defendant and McElroy head for the store's exit, pass the cash registers, and go through both an inner and outer set of exit doors. He saw Meade confront Defendant, and consistent with Meade's testimony, he confirmed that a struggle ensued between Meade and Defendant. Becker grabbed Defendant's kicking legs in an effort to help secure him. He also noticed DVDs on the ground during the course of the events. Finally, Clinard testified that he first saw Defendant and McElroy when they were coming out of the store. He also confirmed that Defendant had struggled with Meade, and that Becker had intervened to help Meade restrain Defendant. He saw Defendant flailing his arms, kicking, and trying to escape. Defendant's clothing. During closing arguments, Defendant asserted that "robbery requires the intent to take by force" and suggested that Defendant lacked that intent at the time he resisted. Rather, Defendant asserted that the theft was complete and his intent in resisting the merchant was to escape, not to maintain possession of the stolen merchandise. Accordingly, he argued that he committed two separate crimes that day: resisting a merchant and petit theft, but not robbery. He also saw DVDs fall out of

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The trial court instructed the jury, over objection, that it could convict Defendant of robbery or one of the lesser offenses of resisting a merchant, battery, or petit theft. During deliberations, the trial court received a note from the jury asking whether they could pick more than one of the lesser offenses. The trial court answered "no" over Defendant's objection. Defendant argued: The position that the Defense is taking is yes. The reason for that is these are mutually exclusive charges and hypothetically each of the elements are satisfied and there is no one charge that is greater than the other on that, and there is nothing in the instruction that says they can't. The jury subsequently rendered a verdict finding Defendant "guilty of Robbery as charged in the information. F.S. 812.13(1), (2)(c)." Defendant filed a motion for a new trial based on the trial court's instruction to the jury that it could find Defendant guilty of only one of the lesser offenses listed on the verdict form. The trial court heard

arguments on this motion, and the trial court denied the motion for a new trial. Defendant was again sentenced to thirty years' imprisonment. On appeal, Defendant argues that he was entitled to have the jury instructed that it was allowed to mark more than one choice among the lesser included offenses listed on the verdict form, consistent with his theory of defense that he had committed the crimes of petit theft and resisting a merchant, but not robbery. He argues that he "is entitled to have the jury consider the option of convicting him of both lesser included offenses," sufficient record evidence existed to support those charges, "and the Information filed by the State allege[d] facts sufficient to include the lesser

offenses . . . ." Finally, Defendant argues that by denying his request that the jury be

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permitted to consider the two lesser included offenses of petit theft and resisting a merchant, the trial judge denied his right to have a jury exercise its pardon power. The State's essential position is that "[a]s a general rule, permitting a jury to find a defendant guilty of two lesser offenses does not comport with Florida law." Further, it argues that case law allowing a jury to convict of both of the component offenses making up a charged "compound offense" is distinguishable because "the crime of robbery is not a legislative creation compounding two offenses into one." The general rule is that, when a defendant is charged with an offense and tried for it, the jury may convict him of "any offense that as a matter of law is a necessarily included offe nse or is a lesser included offense" and "is supported by the evidence." Fla. R. Crim. P. Rule 3.510 (2006); see Stuckey, 907 So. 2d at 1212 ("[A] defendant is entitled to an instruction for any lesser included offense if all the elements are alleged in the accusatory pleading and the evidence presented supports it."), review denied, 925 So. 2d 1031 (Fla. 2006). It is a matter of common understanding that the charge of a single offense will give rise to the possibility of a conviction of a lesser offense whose elements are included in the greater, charged offense. When referencing lesser

included offenses, the jury instructions 2 and rules of criminal procedure 3 speak in the singular. It appears that the basis for the general rule that a defendant cannot be convicted of two lesser included offenses under a single charge lies in considerations of double jeopardy. See Bledsoe, 764 So. 2d 927, 928-29 (Fla. 2d DCA 2000); Rhames v.

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Fla. Std. Jury Instr. (Crim.) 3.12. See Fla. R. Crim. P. 3.510, 3.620. 5

State , 473 So. 2d 724, 727 (Fla. 1st DCA 1985). In Bell v. State , 437 So. 2d 1057, 1061 (Fla. 1983), the Florida Supreme Court said that a jury can convict a defendant of one or more of the lesser included offenses; it is only prohibited from convicting of the greater offense and a lesser offense. That concern is not present in this case, however. With respect to robbery, 4 petit theft is a necessarily lesser included offense and resisting a merchant 5 is a permissive lesser offense. See J.C.B. v. State , 512 So. 2d

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In relevant part, the statutory provision governing robbery 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) . . . . (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. (3) . . . . (b) An act shall be deemed "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.

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