Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ROBERT CORONA, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-1162 January 27, 2023 Appeal from the Circuit Court for Manatee County; Gilbert A. Smith Jr., Judge. Howard L. Dimmig, II, Public Defender, and Jean-Jacques A. Darius, Special Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee. SILBERMAN, Judge. Robert Corona appeals his judgment and sentence for robbery, felony domestic battery after a prior conviction, and two counts of violations of pretrial release. We affirm without comment his convictions for felony domestic battery and violations of pretrial release. However, because the trial court erred by denying his request to instruct the jury on robbery by sudden snatching, a category two lesser-included offense to robbery, we reverse and remand for a new trial on that charge. On appeal, "[w]e review the giving or withholding by a trial court of a requested jury instruction under an abuse of discretion standard." Brown v. State, 11 So. 3d 428, 432 (Fla. 2d DCA 2009). However, jury instructions on category two permissive lesser-included offenses "must be given when the pleadings and the evidence demonstrate that the lesser offense is included in the offense charged." Khianthalat v. State, 935 So. 2d 583, 584 (Fla. 2d DCA 2006). "A permissive lesser included offense exists when 'the two offenses appear to be separate [on the face of the statutes], but the facts alleged in the accusatory pleadings are such that the lesser [included] offense cannot help but be perpetrated once the greater offense has been.' " Williams v. State, 957 So. 2d 595, 598 (Fla. 2007) (alterations in original) (quoting Sanders v. State, 944 So. 2d 203, 206 (Fla. 2006)). When determining whether one offense is a permissive lesser included offense of another, "the pertinent inquiry is whether the greater crime may be charged in a manner encompassing the lesser." Id. Robbery is statutorily defined as 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. § 812.13(1), Fla. Stat. (2020). Robbery by sudden snatching is the "taking of money or other property from the victim's person, with intent to permanently or temporarily deprive the victim or the owner of the money or other property, when, in the course of the taking, the victim was or became aware of the taking." § 812.131(1), Fla. Stat. (2020). 2 However, robbery by sudden snatching does not require a showing that "[t]he offender used any amount of force beyond that effort necessary to obtain possession of the money or other property." § 812.131(1)(a). " 'Robbery by sudden snatching' is a permissive or category two lesser- included offense of 'strong arm robbery,' and it is officially listed as such." Clark v. State, 43 So. 3d 814, 816 (Fla. 1st DCA 2010); see also Fla. Std. Jury Instr. (Crim.) 15.1. Corona was charged by an amended information with robbery. The amended information alleged that Corona "unlawfully, by force, violence, assault or putting in fear, [took] away from the person or custody of [the victim] certain property, to-wit: CELL PHONE, with intent to permanently or temporarily deprive [her] of said property." Corona argues, among other things, that his requested jury instruction for robbery by sudden snatching should have been given because the elements of that crime are included in the charge of robbery and because the evidence introduced, including portions of a recorded call where Corona told the victim "all I did was push you away," would have supported a jury's finding that he took the victim's phone by sudden snatching rather than by strong arm robbery. A First District case, Clark, is analogous to this one. See 43 So. 3d at 815. There, like here, the defendant argued on appeal that he was entitled to a requested permissive lesser-included offense jury instruction of robbery by sudden snatching. Id. The First District agreed and reversed his conviction and remanded for a new trial. Id. The court recognized that the information against the defendant charged that he "committed the offense of robbery by taking the victim's purse from her person or custody by, among other things, 'putting [her] in fear,' [thus] the information alleged all the statutory elements not only of the offense 3 of 'strong arm robbery' but also of the offense of 'robbery by sudden snatching.' " Id. at 816 (first alteration in original). The court concluded that "allegation[s] that a robbery was accomplished by putting the victim in fear necessarily alleges that the victim 'in the course of the taking, . . . was or became aware of the taking.' " Id. at 816-17 (second alteration in original) (quoting § 812.131(1), Fla. Stat. (2008)). Like in Clark, the allegations in the amended information against Corona asserted that the taking of the victim's phone was accomplished by force, violence, assault, or putting the victim in fear. We agree with the analysis in Clark that the allegation that the victim was put in fear "necessarily alleges that the victim 'in the course of the taking, . . . was or became aware of the taking.' " See id. (quoting § 812.131(1)). Robbery by sudden snatching is explicitly listed as a category two lesser-included offense to robbery, and the pleadings and the evidence here demonstrate that robbery by sudden snatching is included in the robbery charge. See id. at 816; see also Khianthalat, 935 So. 2d at 584. In summary, we conclude that, based on the nature of the charges and the evidence presented, the trial court erred by denying Corona's request that the jury be instructed on robbery by sudden snatching. Thus, we reverse Corona's robbery conviction and remand for retrial only on that charge. Affirmed in part, reversed in part, and remanded. NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur. Opinion subject to revision prior to official publication. 4