Flarity v. State , 11 Fla. L. Weekly 2600 ( 1986 )

499 So.2d 18 (1986)

James L. FLARITY, Appellant,
v.
STATE of Florida, Appellee.

No. 86-481.

District Court of Appeal of Florida, Fifth District.

December 11, 1986.

James B. Gibson, Public Defender, and Nancye R. Crouch, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Kevin Kitpatrick Carson, Asst. Atty. Gen., Daytona Beach, for appellee.

DAUKSCH, Judge.

This is an appeal from a robbery conviction. The issue is whether the state proved a case of robbery or merely petit larceny. Pursuant to the recent supreme court ruling in Royal v. State, 490 So.2d 44 (Fla. 1986), we find that the evidence supports a conviction for petit larceny.

Appellant pumped gasoline into his car at a self-service station and did not have enough money to pay for it. When the appellant told the attendant he wanted to go across the street to cash a check in order to pay for the gasoline, the attendant said he would have to leave his car there to make sure he returned. There were additional circumstances which led the attendant to justifiably believe that appellant did not intend to pay for the gasoline.

As appellant started his car, the attendant reached into the car and attempted to take the keys. The attendant held onto the car as the appellant began to accelerate. He was eventually required to let go when appellant drove away.

The taking of the gasoline occurred when the fuel reached the car. Because the violence occurred after the taking, the crime committed was petit larceny rather than robbery. Royal. The conviction is reversed and this cause remanded for judgment and sentence for petit larceny.

REVERSED and REMANDED.

ORFINGER and COWART, JJ., concur.