Stephan Stuckey v. State
Annotate this Case
Download PDF
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
JULY TERM 2007
STEPHAN KENT STUCKEY,
Appellant,
v.
Case No. 5D06-3630
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed December 7, 2007
Appeal from the Circuit Court
for Seminole County,
Marlene M. Alva, Judge.
Raymond M. Warren, of Warren &
Warren, P.A., Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee,
and Pamela J. Koller, Assistant Attorney
General, Daytona Beach, for Appellee.
GRIFFIN, J.
Stephan Kent Stuckey [“Defendant”] appeals the judgment and sentence he
received for the offense of robbery. He raises several issues, only one of which has
merit. We agree that the trial court erred in instructing the jury and that reversal is
required.
On January 20, 2004, Defendant and Austin Donald McElroy were observed in a
Sam’s Club store, concealing DVDs in the waistband of their pants. Immediately upon
exiting the store, Defendant and McElroy were confronted by Sam’s Club employees.
Defendant struggled with the employees who apprehended him.
On March 17, 2004, the State charged Defendant with robbery, a second-degree
felony. 1 Defendant was initially tried and convicted of the charged offense in 2004, and
sentenced to thirty years' imprisonment as a violent career criminal and prison releasee
reoffender. On appeal, this Court reversed, concluding that the trial court erred by
refusing to instruct the jury on the lesser offense of resisting a merchant. We remanded
for a new trial. Stuckey v. State, 907 So. 2d 1208 (Fla. 5th DCA 2005).
Defendant was tried again in 2006.
Three witnesses were presented.
Christopher Meade, a Sam’s Club loss prevention officer, testified that he was walking
through the store when he observed Defendant and McElroy with a number of DVDs in
their cart. Meade follo wed Defendant and McElroy to an area of the store that was
without surveillance cameras. He observed Defendant and McElroy take the DVDs
from the cart and stuff them into their pants. Meade radioed the store manager, Mike
Clinard. Meade asked Clinard to gather another store employee and meet him outside.
Meade then watched Defendant and McElroy as they proceeded past the
registers, past the inner exit doors, and ultimately past the outer exit doors. While
1
Specifically, the State charged:
[O]n or about January 20, 2004, [Defendant], did take money
or other property, from the person or custody of another,
Chris Meade or Robert Becker, with the intent to
permanently or temporarily deprive said person of said
property, and in the course of the taking did use force,
violence, assault, or putting in fear, and further, [Defendant]
had previously been convicted two or more times of
theft . . . .
2
Clinard and another store employee, Bobby Becker, went after McElroy, Meade
confronted Defendant. Meade identified himself and placed his hand on Defendant’s
abdomen to let him know that he knew there was merchandise there. At that point,
Defendant swung his arm back as if to hit him, and fled. With the assistance of Becker,
Meade took Defendant to the ground and handcuffed him. During the struggle several
DVD’s fell to the ground.
Becker was the second witness called. He testified that he observed Defendant
and McElroy head for the store’s exit, pass the cash registers, and go through both an
inner and outer set of exit doors. He saw Meade confront Defendant, and consistent
with Meade’s testimony, he confirmed that a struggle ensued between Meade and
Defendant. Becker grabbed Defendant’s kicking legs in an effort to help secure him.
He also noticed DVDs on the ground during the course of the events.
Finally, Clinard testified that he first saw Defendant and McElroy when they were
coming out of the store. He also confirmed that Defendant had struggled with Meade,
and that Becker had intervened to help Meade restrain Defendant. He saw Defendant
flailing his arms, kicking, and trying to escape.
He also saw DVDs fall out of
Defendant’s clothing.
During closing arguments, Defendant asserted that “robbery requires the intent to
take by force” and suggested that Defendant lacked that intent at the time he resisted.
Rather, Defendant asserted that the theft was complete and his intent in resisting the
merchant was to escape, not to maintain possession of the stolen merchandise.
Accordingly, he argued that he committed two separate crimes that day: resisting a
merchant and petit theft, but not robbery.
3
The trial court instructed the jury, over objection, that it could convict Defendant
of robbery or one of the lesser offenses of resisting a merchant, battery, or petit theft.
During deliberations, the trial court received a note from the jury asking whether they
could pick more than one of the lesser offenses. The trial court answered “no” over
Defendant’s objection. Defendant argued:
The position that the Defense is taking is yes. The reason
for that is these are mutually exclusive charges and
hypothetically each of the elements are satisfied and there is
no one charge that is greater than the other on that, and
there is nothing in the instruction that says they can’t.
The jury subsequently rendered a verdict finding Defendant “guilty of Robbery as
charged in the information. F.S. 812.13(1), (2)(c).” Defendant filed a motion for a new
trial based on the trial court’s instruction to the jury that it could find Defendant guilty of
only one of the lesser offenses listed on the verdict form.
The trial court heard
arguments on this motion, and the trial court denied the motion for a new trial.
Defendant was again sentenced to thirty years' imprisonment.
On appeal, Defendant argues that he was entitled to have the jury instructed that
it was allowed to mark more than one choice among the lesser included offenses listed
on the verdict form, consistent with his theory of defense that he had committed the
crimes of petit theft and resisting a merchant, but not robbery. He argues that he “is
entitled to have the jury consider the option of convicting him of both lesser included
offenses,” sufficient record evidence existed to support those charges, “and the
Information filed by the State allege[d]
facts sufficient to include the lesser
offenses . . . .” Finally, Defendant argues that by denying his request that the jury be
4
permitted to consider the two lesser included offenses of petit theft and resisting a
merchant, the trial judge denied his right to have a jury exercise its pardon power.
The State's essential position is that “[a]s a general rule, permitting a jury to find
a defendant guilty of two lesser offenses does not comport with Florida law.” Further, it
argues that case law allowing a jury to convict of both of the component offenses
making up a charged "compound offense" is distinguishable because “the crime of
robbery is not a legislative creation compounding two offenses into one.”
The general rule is that, when a defendant is charged with an offense and tried
for it, the jury may convict him of “any offense that as a matter of law is a necessarily
included offe nse or is a lesser included offense” and “is supported by the evidence.”
Fla. R. Crim. P. Rule 3.510 (2006); see Stuckey, 907 So. 2d at 1212 (“[A] defendant is
entitled to an instruction for any lesser included offense if all the elements are alleged in
the accusatory pleading and the evidence presented supports it.”), review denied, 925
So. 2d 1031 (Fla. 2006). It is a matter of common understanding that the charge of a
single offense will give rise to the possibility of a conviction of a lesser offense whose
elements are included in the greater, charged offense.
When referencing lesser
included offenses, the jury instructions 2 and rules of criminal procedure 3 speak in the
singular.
It appears that the basis for the general rule that a defendant cannot be
convicted of two lesser included offenses under a single charge lies in considerations of
double jeopardy. See Bledsoe, 764 So. 2d 927, 928-29 (Fla. 2d DCA 2000); Rhames v.
2
Fla. Std. Jury Instr. (Crim.) 3.12.
3
See Fla. R. Crim. P. 3.510, 3.620.
5
State, 473 So. 2d 724, 727 (Fla. 1st DCA 1985). In Bell v. State , 437 So. 2d 1057, 1061
(Fla. 1983), the Florida Supreme Court said that a jury can convict a defendant of one
or more of the lesser included offenses; it is only prohibited from convicting of the
greater offense and a lesser offense. That concern is not present in this case, however.
With respect to robbery, 4 petit theft is a necessarily lesser included offense and
resisting a merchant 5 is a permissive lesser offense. See J.C.B. v. State , 512 So. 2d
4
In relevant part, the statutory provision governing robbery provides:
(1) "Robbery" means 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.
(2) . . . .
(c) If in the course of committing the robbery the offender
carried no firearm, deadly weapon, or other weapon, then
the robbery is a felony of the second degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084.
(3) . . . .
(b) An act shall be deemed "in the course of the taking" if it
occurs either prior to, contemporaneous with, or subsequent
to the taking of the property and if it and the act of taking
constitute a continuous series of acts or events.
§ 812.13, Fla. Stat. (2004).
5
In relevant part, the resisting a merchant statute provides:
(6) An individual who, while committing or after committing
theft of property . . . resists the reasonable effort of . . .
merchant, merchant's employee . . . to recover the property .
. . . which the . . . merchant, merchant's employee . . . had
probable cause to believe the individual had concealed or
removed from its place of display or elsewhere . . . commits
6
1073, 1074 (Fla. 1st DCA 1987); Stuckey, 907 So. 2d at 1212. An element of the
resisting a merchant offense is that the proscribed resistance to reasonable efforts of
the merchant to recover the merchandise occurs “while” or “after” the defendant
commits a theft of the merchant’s property. See § 812.015(6), Fla. Stat. (2004); see
also Lane v. State, 867 So. 2d 539, 541 (Fla. 1st DCA 2004).
Both the statute
governing the resisting a merchant offense and the case law make clear that a
defendant can be prosecuted and convicted of both resisting a merchant and the
associated petit theft offense without offending double jeopardy. See § 812.015(6), Fla.
Stat. (2004); Stuckey.
A compound offense exists when “two lesser offenses are merged factually and
in legal contemplation into the one greater offense.” State v. Foster, 596 So. 2d 1099,
1104 n.6 (Fla . 5th DCA 1992) (Cowart, J., dissenting). The body of case law relating to
compound offenses provides that when a defendant is tried for a compound offense, he
is entitled to have the jury consider convicting him of both of the “separate component
offenses” that make up the compound offense.
Gian-Grasso v. State, 899 So. 2d 392,
393 (Fla. 4th DCA 2005). In Gian-Grasso for example, the Fourth District noted that
burglary with battery is a legislative combination of trespass and battery. Id. The court
explained:
a misdemeanor of the first degree, punishable as provided in
s. 775.082 or s. 775.083, unless the individual did not know,
or did not have reason to know, that the person seeking to
recover the property was a . . . merchant, merchant's
employee . . . . For purposes of this section the charge of
theft and the charge of resisting may be tried concurrently.
§ 812.015(6), Fla. Stat. (2004).
7
Where a defendant is charged with burglary, a jury could find
that the defendant had no criminal intent upon entering but
subsequently formed the intent to commit an offense, such
as, in this case, battery. In this situation, the defendant has
committed a trespass and a battery but not a burglary. A
defendant is entitled to have the jury determine when the
intent was formed and consider the alternative of convicting
of both component offenses, rather than burglary or just one
of the component offenses.
Id; see also Bledsoe, 764 So. 2d at 929 (In a prosecution for burglary with battery,
defendant may be convicted of both lesser offense of trespass and lesser offense of
battery if information supports finding of both offenses and jury determined both
occurred.); Gregory v. State , 937 So. 2d 180, 183 (Fla. 4th DCA 2006) (In a prosecution
for burglary with battery, “[t]he defendant was entitled to an instruction and verdict form
that would have permitted the jury to return a verdict of trespass coupled with a
battery”). The case law cited by Defendant relating to compound offenses is not exactly
the same here because robbery is not a compound offense of resisting a merchant and
theft.
Robbery is, however, in a sense, the "mother" of compound offenses. In his
excellent opinion tracing the history and evolution of the robbery offense, Judge Cowart
explained that:
In the development of the early English common law, there
came into existence two mixed or compound larcenies which
had all of the properties of simple larceny but were
accompanied by one, or both, of the aggravations of the
felonious taking of personal property from one's house or
from one's person. Each of these two compound or double
offenses was in effect the combining of two offenses—one
against property and the other against a dwelling or a
person—into one greater offense with more punishment
provided for the one greater than that provided for the
conviction of both of the lesser included offenses.
8
Foster, 596 So. 2d at 1104 (Cowart, J., dissenting) (footnote omitted). Later in his
opinion, he describes robbery as a "double-yoked egg" and reiterates that:
The analytical problem is compounded and confused by the
fact that, peculiarly, the robbery offense, like a double yoked
egg, has two core offenses, theft and violence against the
person, making a comparison with other offenses involving
theft or violence doubly difficult.
Id. at 1109.
Prior to 1987, the issue presented in this case would not have arisen in Florida
because robbery only included a taking in which the violence or putting in fear was used
to effect the taking. See Royal v. State, 490 So. 2d 44 (Fla. 1986). The use of force or
fear had to precede or accompany the taking. Force used afte r getting control of the
stolen property, in an effort to elude capture, is not within the common law definition of
robbery or the definition of robbery contained in Florida statutes at that time.
Immediately after the Royal decision explained this limitation on the robbery
statute then in place, the legislature amended the statute to expressly provide that force
used subsequent to the taking can convert a theft into a robbery so long as the force
and the act of taking are both part of a continuous series of acts or events. See §
813.13(3)(b), Fla. Stat. (1987); see also Rumph v. State, 544 So. 2d 1150 (Fla. 5th DCA
1989). This statutory embellishment on the common law crime of robbery gives rise to
the possibility that force employed after a theft may either give rise to a "robbery" or
"resisting a merchant," depending on the factual determination whether the two acts
were a part of a continuous series of acts or events. Similar to the analysis contained in
the cases above discussing compound crimes, in a case such as this, the defendant
9
should be able to present his theory of defense to the jury and receive an instruction if
the evidence supports it.
It appears undisputed on appeal that the evidence presented at trial would
support Defendant’s conviction for each of these offenses. Accordingly, the trial court
erred in instructing the jury that it could only convict Defendant of one of these offenses.
We accordingly reverse the judgment and remand for another trial.
REVERSED and REMANDED.
ORFINGER and EVANDER, JJ., concur.
10
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.