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Gordon v. State

Florida Court of Appeals, Third District

May 10, 2017

Steve Gordon, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County, Dennis J. Murphy, Judge. Lower Tribunal No. 14-26356

          Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.

          Pamela Jo Bondi, Attorney General, and Jacob Addicott and Jonathan Tanoos, Assistant Attorneys General, for appellee.

          Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.

          EMAS, J.

         Appellant Steve Gordon appeals his judgment and sentence following a jury trial and conviction for strongarm robbery. Gordon contends that the trial court erred in denying his request for a "compound offense" jury instruction, and a verdict form which would have permitted the jury to select more than one lesser-included offense on the verdict form-specifically, either theft and assault, or theft and battery. Appellant also requests that this court remand for entry of a written order as to the lower court's oral pronouncement finding Gordon competent to stand trial. As to the first claim, we affirm, holding that there was no evidence at trial to support a compound offense instruction or a verdict form permitting the jury to find Gordon guilty of more than one lesser-included offense. As to the second claim, we remand for the trial court to enter a written order, consistent with its oral pronouncement, finding Gordon competent to stand trial.

         FACTS

         On December 26, 2014, the State charged Gordon by information with one count of robbery pursuant to section 812.13(2)(c), Florida Statutes (2014). The information alleged, in relevant part, that Gordon

did unlawfully, by force, violence, assault, or putting in fear, take certain property, to wit: U.S. coin or currency, said property being the subject of larceny, and of the value of less than one hundred dollars ($100.00), the property of [victim], as owner or custodian, from the person or custody of [victim], with the intent to temporarily or permanently deprive the above-named [victim] of the said property, in violation of s. 812.13(2)(c), Fla. Stat .....

         The relevant acts comprising the crime are not in dispute, as a surveillance camera captured video of the entire encounter between Gordon and the victim. Gordon also provided a post-Miranda[1] statement to police confessing to the crime. However, the defense contended at trial that Gordon's actions constituted two lesser-included offenses (i.e., theft and assault or theft and battery), rather than the robbery as charged.

         At trial, the female victim testified that Gordon approached her at a gas station while she was getting gas. Gordon asked if he could "borrow" two dollars for gas. During her testimony, the State played the surveillance video to the jury and, as the video played, the victim described the encounter:

[I] said sure. I had all my money in my back pocket. I'm pulling it out and as I'm pulling it out, he's walking up to me. I give him the $2. He sees that I have more so he's like, oh, can I get a 10 instead. I said, no, you can't, and then he snatched my money out of my hand and tried to make a run for it. That's when I grabbed him by his shirt. He starts pulling away and then he says, oh, I'm just kidding, and smiles at me. And I'm like, that's not funny. And then he starts to pull away again. At some point he, like, pushes me off and slaps my glasses off of my face. His shirt starts tearing down the middle so I started yelling for help, because I didn't know how long I could hold on to him.

         The victim testified that each time she tried to take back the money Gordon had "snatched" from her, Gordon pulled away and "that's when he tried to push me off and ended up smacking my face and my glasses off." The State also introduced photographs which showed a cut to the victim's eyelid, an injury she sustained during her encounter with Gordon.

         During the encounter, the victim yelled for help, and a Good Samaritan approached and ordered Gordon "to get down on the ground." Gordon started to comply and dropped the money. Almost immediately, however, Gordon jumped up and ran to his car. The Good Samaritan followed Gordon to the car, where the two tussled, and Gordon struck the Good Samaritan on the right side of his body. Gordon drove away and the Good Samaritan followed in his own vehicle while contacting police. Gordon was soon apprehended, waived his Miranda rights and gave a statement to police. The officer described Gordon's post-Miranda statement:

[Gordon] said he was sitting his vehicle next to the gas pump when he saw the victim arrive. When she got out of her vehicle, he got out of his, and he approached her, asking her for $2. The victim removed money from her right rear pocket, at which time he said, can I get ten, and she said no. At that point, he said that they began tussling. He went to grab the money out of her hand and they began tussling for the money. Once the victim began to scream, he says that he told her, I'm just playing.

         Gordon did not testify at the trial, call any witnesses, or introduce any exhibits.

         During the charge conference, defense counsel requested that the jury be instructed that robbery was a compound offense and proposed a verdict form that would allow the jury to find Gordon guilty of two lesser-included offenses-either theft and battery, or theft and assault.

         The defendant's proposed jury ...


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