Third District Court of Appeal
State of Florida
Opinion filed July 16, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-1259
Lower Tribunal No. 14-1717
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A.M., a juvenile,
Petitioner,
vs.
The State of Florida, et al.,
Respondents.
A Case of Original Jurisdiction – Habeas Corpus.
Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant
Public Defender, for petitioner.
Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney
General, for respondents.
Before SUAREZ, EMAS and SCALES, JJ.
EMAS, J.
A.M., a juvenile, filed a petition for writ of habeas corpus, seeking release
from custody and asserting that he is being unlawfully held in secure detention
because his offense was improperly designated a violent third-degree felony. The
question presented is whether the charge of robbery by sudden snatching is a
violent third-degree felony or a non-violent third-degree felony for purposes of
determining whether A.M. met the criteria for secure detention. For the reasons
that follow, we hold that, under the facts of the instant case, the offense of robbery
by sudden snatching should properly have been designated a non-violent third-
degree felony.
A.M. was arrested on May 22, 2014, and charged with robbery by sudden
snatching, a third-degree felony. The arrest report included the following factual
narrative in support of the arrest:
[Victim] was walking in the park when the def. ran up behind him and
snatched the cell phone which was in his hand. The def. fled from the
park. [Witness] was with the def. when it happened and provided
information on the def. and identified the def. from photograph. The
def. was located at his residence and was arrested. Def. taken to the
JAC [Juvenile Assessment Center] via [Police] Station 6.
A detention hearing was held the following day. At that detention hearing,
the court is required to utilize the results of the Detention Risk Assessment
Instrument (“Risk Assessment”) in determining the need for continued detention,
or the appropriate conditions for release pending an adjudicatory hearing. See §§
985.255(3)(a), 985.245(1)-(2), Florida Statutes (2014). The Risk Assessment is a
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point-based system which assigns points based upon, for example, the nature of the
juvenile’s current offense and any prior or pending offenses. If the Risk
Assessment results in a score of twelve points or more, a juvenile may continue to
be held in secure detention.
Prior to the commencement of the hearing, the Department of Juvenile
Justice (“the Department”) prepared the Risk Assessment, as provided by section
985.245, and designated the robbery by sudden snatching as a violent third-degree
felony which, together with A.M.’s other pending offenses, resulted in a qualifying
score for secure detention. However, had the robbery by sudden snatching been
designated a non-violent third-degree felony, A.M.’s score would not have
qualified him for secure detention and would have resulted in his release on home
detention.1
In 1999, the Florida Legislature enacted section 812.131, Florida Statutes,
entitled “Robbery by Sudden Snatching.” It provides in pertinent part as follows:
(1) “Robbery by sudden snatching” means 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
1 It is unnecessary to address the other aspects of the Risk Assessment that were
relied upon in ordering secure detention, because the dispositive question here is
whether the instant offense should have been scored as a violent third-degree
felony or a non-violent third-degree felony. The parties agree that if the robbery
by sudden snatching was a violent third-degree felony, A.M. qualifies for secure
detention; if it was a non-violent third-degree felony, A.M. would have been
released on home detention.
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course of the taking, the victim was or became aware of
the taking. In order to satisfy this definition, it is not
necessary to show that:
(a) The offender used any amount of force beyond that
effort necessary to obtain possession of the money or
other property; or
(b) There was any resistance offered by the victim to the
offender or that there was injury to the victim's person.
(2)(a) If, in the course of committing a robbery by sudden
snatching, the offender carried a firearm or other deadly
weapon, the robbery by sudden snatching is a felony of
the second degree, punishable as provided in s. 775.082,
s. 775.083, or s. 775.084.
(b) If, in the course of committing a robbery by sudden
snatching, the offender carried no firearm or other deadly
weapon, the robbery by sudden snatching is a felony of
the third degree, punishable as provided in s. 775.082, s.
775.083, or s. 775.084.
§812.131, Fla. Stat. (2014).
The statute does not require that the offender use or threaten to use any force
or violence in order to commit the crime of robbery by sudden snatching. In fact,
no force whatsoever is required “beyond that effort necessary to obtain possession
of the money or other property.” The only elemental difference between a robbery
by sudden snatching and a theft is that robbery by sudden snatching requires proof
that “in the course of the taking, the victim was or became aware of the taking.” §
812.131(1). This can be further established by comparing the jury instructions for
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grand theft (Fla. Std. J. Instr. (Crim.) 14.1) and robbery by sudden snatching (Fla.
Std. J. Instr. (Crim.) 15.4):
14.1 THEFT
§ 812.014, Fla. Stat.
To prove the crime of Theft, the State must prove the
following two elements beyond a reasonable doubt:
1. (Defendant) knowingly and unlawfully [obtained or
used] [endeavored to obtain or to use] the (property
alleged) of (victim).
2. [He] [She] did so with intent to, either temporarily or
permanently,
a. [deprive (victim) of [his] [her] right to the property or
any benefit from it.]
b. [appropriate the property of (victim) to [his] [her] own
use or to the use of any person not entitled to it.]
15.4 ROBBERY BY SUDDEN SNATCHING
§ 812.131, Fla. Stat.
To prove the crime of Robbery by Sudden Snatching, the
State must prove the following four elements beyond a
reasonable doubt:
1. (Defendant) took the (money or property described in
charge) from the person of (person alleged).
2. The property taken was of some value.
3. The taking was with the intent to permanently or
temporarily deprive (victim) or the owner of [his] [her]
right to the property.
4. In the course of the taking, (victim) was or became aware
of the taking.
It is the last element above that, for our purposes, differentiates theft from
robbery by sudden snatching; a theft, accompanied by the victim’s
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contemporaneous awareness of the taking, makes the theft a robbery by sudden
snatching. The robbery by sudden snatching jury instruction further provides:
It is not necessary for the State to prove that the
defendant used any amount of force beyond that effort
necessary to obtain possession of the money or other
property, that there was any resistance offered by the
victim or that there was any injury to the victim’s person.
Fla. Std. J. Instr. (Crim.) 15.4
Given the plain language of the statute, echoed in the provisions of the
standard jury instructions, we conclude that robbery by sudden snatching is not, by
its statutory elements, a violent third-degree felony and should not have been
designated as such in the instant case when scoring A.M.’s offense under the Risk
Assessment. See Thomas v. State, 983 So. 2d 746 (Fla. 4th DCA 2008) (holding
the use or threat of physical force or violence against an individual is not a
statutory element of the crime of robbery by sudden snatching). See also T.K. v.
State, 125 So. 3d 970 (Fla. 4th DCA 2013)(holding that, given the plain language
of the term “violent,” the crime of aggravated fleeing and eluding was not a violent
second-degree felony for purposes of the Risk Assessment).
We have considered the case relied upon by Respondent, J.W. v. Leitner,
801 So. 2d 295 (Fla. 2d DCA 2001). In J.W., the juvenile was confined in secure
detention following his commitment and pending placement in a high-risk
residential program. Such detention is authorized under section 985.214(10)(c),
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Florida Statutes (2014), and requires a score of twelve or more points on a risk
assessment instrument. The risk assessment established that the juvenile was
initially charged with robbery by sudden snatching, which was scored as nine
points, clearly below the twelve-point minimum. The issue directly addressed in
J.W. was not whether robbery by sudden snatching was properly scored as a
violent third-degree felony, but whether the trial court could rely upon other
information provided by the Department (but not authorized for consideration
under the statute) in determining whether the juvenile met the criteria for secure
detention. The Second District held that “a child awaiting placement in a high-risk
residential program may not be held in secure detention unless they meet detention
criteria” under section 985.215(10)(c).
In a footnote, the J.W. court did state that the offense of robbery by sudden
snatching was correctly scored as a violent third-degree felony. Id. at 297 n. 1.
However, this statement is not necessary to the holding in J.W. We consider it
dicta and, based upon our analysis, respectfully disagree with our sister court’s
conclusion in this regard. See Puryear v. State, 810 So. 2d 901 (Fla. 2002) (noting
statements not necessary to the holding constitute dicta.)
We hold that, in light of the statutory elements of the crime, and the factual
allegations in this case,2 the offense of robbery by sudden snatching should not
2At a detention hearing, the court is required, in part, to determine “the existence
of probable cause to believe the child has committed a delinquent act.” See Fla. R.
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have been scored as a violent third-degree felony. However, in light of petitioner’s
release during the pendency of this cause, we dismiss the petition as moot.3
Juv. P. 8.010(g). We need not and therefore do not decide whether a court could
find a robbery by sudden snatching constitutes a “violent third-degree felony”
where the factual allegations of the particular crime support a finding of probable
cause that the juvenile in fact used or threatened to use force or violence. See
T.K., 125 So. 3d at 972 (considering both the statutory elements of the crime and
the factual allegations of the particular crime in assessing whether it could be
considered a “violent” offense for purposes of the Risk Assessment).
3 Because the petitioner was released from secure detention during the pendency of
this cause, Respondent suggested we need not reach the merits of the petition.
Nevertheless, we exercise our discretion to do so, since this issue has arisen in the
past and is likely to recur. Holly v. Auld, 450 So. 2d 217, 218 n. 1 (Fla. 1984).
Juvenile detention issues, such as the one raised here, are capable of repetition yet
evading review, given their frequent resolution before the appellate court can
complete its review and render a merits decision. C.J. v. Rolle, 608 So. 2d 117
(Fla. 3d DCA 1992); J.L.B. v. Kelly, 93 So. 3d 1137 (Fla. 2d DCA 2012); K.E. v.
Dep’t of Juvenile Justice, 963 So. 2d 864 (Fla. 1st DCA 2007); T.T. v. Esteves,
828 So. 2d 449 (Fla 4th DCA 2002).
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