Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2602 _____________________________ KEITH ANTONIO BROWN JR., Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Linda F. McCallum, Judge. June 26, 2020 OSTERHAUS, J. Keith Antonio Brown, Jr. appeals his convictions and sentences for robbery by sudden snatching and possession of less than 20 grams of cannabis. He raises three issues on appeal, and we affirm two of them without comment. Brown’s third argument is that we must reverse the jury’s verdict for robbery by sudden snatching because the State didn’t prove that he took the stolen cell phones from the victim’s person. We agree and reverse the conviction for robbery by sudden snatching with instructions that the trial court enter a judgment for theft. I. The victim in this case posted two iPhones for sale on Letgo, an online auction site/service. Brown contacted the victim and offered to buy both phones for $1,600. The victim accepted the offer and agreed to meet him at a convenience store. At their subsequent meeting, Brown looked over the phones for several minutes and then pulled money from his pocket. Believing the bills were fake, the victim called off the sale, took the phones back, and set them down on the dashboard of his truck. But before the victim could leave, Brown lunged into the vehicle, grabbed the phones from the dashboard, and fled. Later that day, law enforcement found Brown sitting in the front yard of a residence smoking a marijuana blunt. Brown was charged with robbery by sudden snatching and possession of less than 20 grams of cannabis. After the State rested, Brown moved for a judgment of acquittal arguing there was no showing that he took the phones from the victim’s person. Brown’s motion was denied, and the jury found him guilty as charged. Brown moved for a new trial on several grounds, one of them being that the jury’s verdict was contrary to law. The motion was denied, and Brown was sentenced to four years in prison for the robbery charge and 125 days for the possession charge. This timely appeal follows. II. “Florida Rule of Criminal Procedure 3.600(a) provides that ‘[t]he court shall grant a new trial if ... [t]he verdict is contrary to law or the weight of the evidence.’” Tundidor v. State, 221 So. 3d 587, 603 (Fla. 2017). Brown argues that the verdict was contrary to law because the State did not prove one of the elements of robbery by sudden snatching—a taking from the victim’s person. Section 812.131, Florida Statutes, defines “robbery by sudden snatching” as: 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. 2 (Emphasis added). This crime is distinguished from the crime of “robbery” which is defined as “the taking of money or other property which may be the subject of larceny from the person or custody of another.” See § 812.13(1), Fla. Stat. (Emphasis added). We covered similar ground in Wess v. State, in which we noted that “the robbery statute applies when property is stolen from a victim’s immediate vicinity and/or control [whereas] the robbery by sudden snatching statute is more limited, and applies to property taken from a victim’s person, but not when taken from the victim’s reach, proximity, or control.” 67 So. 3d 1133, 1135 (Fla. 1st DCA 2011). And we reversed the sudden snatching conviction in Wess where the defendant stole a purse when “[t]he victim was sitting on a bench at a bus stop[,] her purse . . . on the bench, touching her right hip.” Id. at 1134. Here, the victim’s iPhones were located on the dashboard of his truck when Brown took them. While the phones were in the victim’s proximity, they were not in his grasp or on his person. The State argues that because Brown made physical contact with the victim as he lunged for and took the property from the dashboard, it was the “functional equivalent” of snatching property from the victim’s person. But making physical contact with the victim is not necessary to prove a robbery-by-sudden-snatching charge. See § 812.131(1), Fla. Stat. (stating that it is unnecessary to show that “[t]he offender used any amount of force beyond that effort necessary to obtain possession of the money or other property”); see also Nichols v. State, 927 So. 2d 90, 90–91 (Fla. 1st DCA 2006) (“By enacting the statute, the Legislature sought to make clear that, henceforth, the sudden snatching of property by no more force than is necessary to remove the property from a person who does not resist would amount to a species of robbery in Florida.”). Because Brown did not take the phones from the victim’s person, the conviction for robbery by sudden snatching is contrary to law and must be reversed. “Section 924.34, Florida Statutes, authorizes appellate courts to ‘reverse [a] judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.’” Wess, 67 So. 3d at 1137. Here, the jury was given the option of finding Brown guilty of theft as a lesser-included offense. The evidence does establish Brown’s guilt as to theft, but the jury 3 made no specific finding as to the value of the two phones. As in Wess, we direct the trial court to enter a judgment for petit theft pursuant to § 812.014. III. We reverse the judgment as to robbery by sudden snatching and direct the trial court to enter a judgment of petit theft, and resentence Brown accordingly. We affirm as to Brown’s other two arguments. AFFIRMED in part, REVERSED in part, and REMANDED with instructions. ROBERTS and M.K. THOMAS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Tyler Payne, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee. 4