K.S., a child v. State of Florida , 2016 Fla. App. LEXIS 2287 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
K.S., a Child,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Nos. 4D14-2955 and 4D14-2956
[February 17, 2016]
Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Carlos S. Rebollo, Judge; L.T. Case Nos.
13001494DL00A, 13001495DL00A, 13001496DL00A, 13001497DL00A,
13001498DL00A, and 13001499DL00A.
Carey Haughwout, Public Defender, and Amy Lora Rabinowitz,
Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L.
Comras, Assistant Attorney General, West Palm Beach, for appellee.
FORST, J.
This case involves a child, the Appellant, who stole a phone from his
friend’s lap, permanently depriving him of it, while the two were sitting and
talking. Appellant raises two issues on appeal. Although we affirm on
both, we write to address only his first argument and hold that taking
money or other property (such as a phone) that is resting on a victim’s lap
is considered taking “from the victim’s person” in violation of section
812.131(1), Florida Statutes (2014).
Appellant attempts to rely on our decision in Brown v. State, 848 So.
2d 361 (Fla. 4th DCA 2003), to support his position that the “victim’s
person” language in the robbery by sudden snatching statute refers only
to objects within “the embrace of the person.” Id. at 364. But in doing so,
he ignores what we said shortly after distinguishing the “embrace of the
person” from the “person’s figurative biosphere”: “[t]he statute . . .
addresses the horror of a victim who is conscious of the startling seizure
of something from her hand or person.” Id. (emphasis added). We used
the “embrace of the person” language to emphasize why the crime in that
case, the theft of a purse located on a bench near the victim, did not fall
under the statute. But the language that followed made clear that one’s
“embrace” is not the only part of one’s “person” contemplated by the
statute.
Similar cases to Brown from the other District Courts of Appeal support
this reading. See Wess v. State, 67 So. 3d 1133, 1136 (Fla. 1st DCA 2011)
(referring to the item being “neither in [the victim’s] grasp nor on her
person” (emphasis added)); Walker v. State, 933 So. 2d 1236, 1238 (Fla.
3d DCA 2006) (reversing because the victim did not immediately notice her
property was missing rather than because the item was in her purse
hanging from her shoulder and not in her embrace).
Walker serves as an example of the absurdity of Appellant’s argument.
Under Appellant’s theory, the theft of a purse hanging from a person’s
shoulder would not constitute robbery by sudden snatching, but the
taking of a clutch would. Taking an umbrella off an arm might only be
petit theft, but if the umbrella is open and being used it is robbery by
sudden snatching. Would-be-thieves would be wise to wait until a hat is
resting on its owner’s head before taking it, rather than to grab it while the
owner is still placing it there. Such distinctions were clearly not the intent
of the legislature or of this Court.
The distinction between an object being “on” a person and being
grasped by them is minimal compared to the distinctions we and other
courts have drawn between an object being on a “victim’s person” and
merely being within his or her “figurative biosphere” by being located next
to them or in a shopping cart. Brown, 848 So. 2d at 364; see Nichols v.
State, 927 So. 2d 90, 90 (Fla. 1st DCA 2006). We therefore hold that the
snatching of an object resting on or being carried by a victim (as opposed
to merely touching or leaning against the victim), whether or not the
victim’s fingers are bent around it, is taking “from the victim’s person” as
that term is used in section 812.131(1), Florida Statutes.
Affirmed.
LEVINE and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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