
    Kenneth B. ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 94-3177.
    District Court of Appeal of Florida, First District.
    March 27, 1996.
    
      Nancy A. Daniels, Public Defender; Fred Parker Bingham, II, Assistant Public Defender, Tallahassee, for Appellant.
    Robert A. Butterworth, Attorney General; Thomas Crapps, Assistant Attorney General, Tallahassee, for Appellee.
   LAWRENCE, Judge.

Kenneth B. Robinson (Robinson) appeals his judgment and sentence for armed robbery with a deadly weapon. We affirm his conviction and sentence, but reverse and remand for correction of two nominal errors.

Robinson was classified and sentenced as an habitual felony offender based in part on two prior Georgia convictions. He argues the trial court erred in qualifying and sentencing him as an habitual felony offender because one of the Georgia convictions was for “robbery by sudden snatching.” He argues this conviction does not constitute a “qualified offense” under the habitual offender statute, section 775.084, Florida Statutes (1993), because it does not contain elements similar or analogous to robbery or any other felony offense in Florida. The State argues the trial court properly considered the Georgia conviction as a predicate offense for ha-bitualization because the Georgia conviction is analogous to a robbery conviction under Florida law. We affirm.

A defendant may be eligible for enhanced punishment as an habitual felony offender if he has previously been convicted of any combination of two or more felonies in Florida or “other qualified offenses.” § 775.084(l)(a)l, Fla.Stat. (1993).

“Qualified offense” means any offense, substantially similar in elements and penalties to an offense in this state, which is in violation of a law of any other jurisdiction ..., that was punishable under the law of such jurisdiction at the time of its commission by the defendant by death or imprisonment exceeding 1 year.

§ 775.084(l)(c). The parties did not cite any case law, nor could we find any in our own research, specifically addressing the characteristics of a qualifying offense for purposes of habitualization. However, the situation can be analogized to the scoring of prior out-of-state convictions under Florida’s sentencing guidelines. In determining whether there is a Florida statute that is similar or analogous to the out-of-state crime, the court must look to the elements of the prior out-of-state crime, not the stated degree of that crime or the sentence received. Dautel v. State, 658 So.2d 88 (Fla.1995); Forehand v. State, 537 So.2d 103 (Fla.1989).

In Georgia, robbery is defined as follows:

A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another:
(1) By use of force;
(2) By intimidation, by use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another; or
(3) By sudden snatching.

Ga.Code Ann. § 16-8-40(a) (1994) (emphasis added). Robbery by sudden snatching requires force but only that amount of force “necessary to obtain possession of the property from the owner, who is off his guard, and where there is no resistance by the owner or injury to his person.” King v. State, 214 Ga.App. 311, 447 S.E.2d 645, 647 (1994) (citations omitted), cert. denied, No. A94A0809 (Nov. 18, 1994); Dotson v. State, 160 Ga.App. 898, 288 S.E.2d 608 (1982). While the victim need not offer any resistance, the victim must be present and aware the property is being taken. King.

In Florida, robbery is defined as follows:

“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.

§ 812.13(1), Fla.Stat. (1993). The only element that distinguishes robbery from larceny or theft is that the property must have been taken from the person or custody of another by means of force, violence, assault or putting in fear. Royal v. State, 490 So.2d 44, 46 (Fla.1986), receded from on other grounds, Taylor v. State, 608 So.2d 804 (Fla.1992). If the victim is not even aware of the taking at the time, it cannot be a taking by force or putting in fear. Harris v. State, 589 So.2d 1006, 1007 (Fla. 4th DCA 1991).

The question presented by this case is whether the force or violence element under the Florida robbery statute is satisfied where the only force used is that force necessary to obtain possession of the property and there is no resistance or injury (i.e., robbery by sudden snatching). This question is one of first impression for this court. However, other Florida courts have addressed the subject and are divided on the issue.

The Second and Third District Courts of Appeal hold that the snatching of property is not robbery within the meaning of the Florida statute if no more force is used than that necessary to remove the property from a person who does not resist. R.P. v. State, 478 So.2d 1106 (Fla. 3d. DCA 1985) (reaching into front of elderly woman’s dress and snatching her purse was insufficient to support robbery conviction where there was no evidence of force, violence, assault or putting in fear), review denied, 491 So.2d 281 (Fla.1986); see also Goldsmith v. State, 573 So.2d 445 (Fla. 2d DCA 1991) (slight force used in snatching ten dollar bill from person’s hand, without touching the person, was insufficient to constitute the crime of robbery); A.J. v. State, 561 So.2d 1198 (Fla. 3d DCA 1990) (degree of force used to grab camera hanging from victim’s, shoulder while sitting in outdoor cafe was insufficient to constitute robbery); Walker v. State, 546 So.2d 1165, 1167 (Fla. 3d DCA 1989) (slight force used to take possession of gold chain from victim’s neck where the victim was not held or struck and did not resist in any way was insufficient to support a robbery conviction). The Third District concludes that something more in the way of physical force is required than the slight force used to physically remove the property from the person. S.W. v. State, 513 So.2d 1088, 1090 (Fla. 3d DCA 1987).

The Fifth District Court of Appeal adheres to a contrary view, namely, that snatching money from another’s hands, without more, is sufficient force to support a robbery conviction. Andre v. State, 431 So.2d 1042 (Fla. 5th DCA 1983) (defendant snatched money from the victim’s hand while in the process of discussing a drug deal). In reaching this conclusion, the Andre court relied on McCloud v. State, in which the supreme court stated that: “[a]ny degree of force suffices to convert larceny into robbery.” McCloud v. State, 335 So.2d 257, 259 (Fla.1976). In so stating, however, the supreme court expressly distinguished the offense of pickpocketing from robbery: ‘‘Where no force is exerted upon the victim’s person, as in the case of a pickpocket, only a larceny is committed.” Id. While we acknowledge the facts in McCloud are much narrower than the language of the case implies, we believe the principle broadly stated therein is applicable to the instant case.

We agree with the Second and Third District Courts of Appeal to the extent that the act of stealthily picking a person’s pocket, without any accompanying resistance or struggle, does not constitute robbery. Nevertheless, we find that the degree of force used in snatching someone’s purse or other property from their person, even where that person does not resist and is not injured, is sufficient to satisfy the force or violence element of robbery in Florida. Andre v. State; see also Parker v. State, 478 So.2d 823, 825 (Fla. 2d DCA 1985) (on motion for rehearing) (neither physical contact or victim injury is a necessary part of proving force or violence for a robbery conviction). In reaching this conclusion, we are of the view that most “sudden snatching” offenses could reasonably be expected to provoke an adverse emotional response on the part of the victim in the physical presence of the offender. This circumstance is distinguishable from the “pickpocket” offense where the victim suffers no emotional response simply because the victim is unaware of the theft. Accordingly, we uphold the trial court’s finding that the Georgia robbery conviction qualified as a predicate offense for purposes of habitualizing Robinson. In so holding, we certify conflict with decisions from the Second and Third District Courts of Appeal.

We agree with Robinson, however, that the trial court erred in ordering him to pay restitution on a severed count on which he was acquitted. Barkley v. State, 585 So.2d 418 (Fla. 1st DCA 1991). Therefore, we reverse and remand with directions to the trial court to vacate that part of the restitution order requiring him to pay $44.00. On remand, we also direct the trial court to correct the scrivener’s error contained in the judgment, which incorrectly designates the offense of armed robbery with a deadly weapon as a life felony when, in fact, it is a first-degree felony punishable by life imprisonment. § 812.13(2)(a), Fla.Stat. (1993).

We affirm, without discussion, all other issues raised on appeal.

Accordingly, we AFFIRM in part, and REVERSE and REMAND in part.

MICKLE, J., concurs.

ERVIN, J., concurs and dissents with written opinion.

ERVIN, Judge,

concurring and dissenting.

I concur with all portions of the majority’s opinion except that part affirming appellant’s habitual felony offender (HFO) sentence, insofar as it was based on two prior Georgia robbery convictions, because, in my judgment, one of the convictions is not a “qualified offense,” as required by Florida’s HFO statute, section 775.084, Florida Statutes (1993).

A comparison of the elements in the Georgia and Florida statutes demonstrates that “robbery by sudden snatching” in Georgia is not substantially similar to robbery in Florida. The Georgia statute permits a conviction for simply taking property from another’s “immediate presence,” thereby requiring only the victim’s awareness that the property is being taken, while not requiring that the perpetrator use any force beyond the mere effort to take the property. § 16-8-40(a), Ga.Code Ann. (1994); King v. Georgia, 214 Ga.App. 311, 447 S.E.2d 645, 647 (1994). In contrast, Florida’s robbery statute requires taking property from the person or-custody of another with some degree, no matter how nominal, of “force, violence, assault, or putting in fear.” § 812.13(1) Fla.Stat. (1993).

The majority refers to an opinion in which the Florida Supreme Court observed that larceny, now theft, involves only a mere taking, whereas robbery requires a showing of some degree of force “exerted upon the victim’s person.” McCloud v. State, 335 So.2d 257, 259 (Fla.1976). The majority concludes therefrom that Florida ease law demonstrates that snatching constitutes robbery in Florida, because some force is always present. None of ’the cases the majority relies upon, however, involved the snatching of personal property from the presence of the victim. Instead, all upheld convictions of robbery by the use of some amount of force in taking property from the victim’s person. See, e.g., McCloud; Andre v. State, 431 So.2d 1042 (Fla. 5th DCA 1983). Indeed, the majority discusses only the latter situation and ignores the former:

Nevertheless, we find that the degree of force used in snatching someone’s purse or other property from their person, even where that person does not resist and is not injured, is sufficient to satisfy the force or violence element of robbery in Florida.

Ante at 484 (emphasis added). In so deciding, the majority fails to acknowledge that robbery by sudden snatching under the Georgia statute does not require a taking of property from the victim’s person by the use of any force whatsoever.

Because these two statutes differ substantially on this material element, robbery by sudden snatching from the presence of the victim cannot be considered a “qualified offense,” as required by section 775.084(l)(c). See O’Neill v. State, 661 So.2d 1265, 1268 (Fla. 5th DCA 1995) (out-of-state statute need not mirror Florida statute, but must be substantially similar in elements and penalties to be a qualifying offense).

Moreover, although robbery by sudden snatching in Georgia could involve snatching from the victim’s person, which would thereby be comparable to robbery in Florida, pursuant to the cases cited by the majority, it appears that Robinson’s Georgia conviction involved a sudden snatching from the victim’s presence, rather than from her person. This conclusion is supported by the statement in both Robinson’s presentence investigation report, read into the record of the case below, and the Georgia presentment, alleging that Robinson took “U.S. currency, the property of the Suwannee Swifty Store, from the immediate presence of Veronica Alford, by use of sudden snatching.” (Emphasis added.)

Curiously, while sentencing appellant in the case at bar as an HFO, the lower court nonetheless concluded that robbery was not a qualified offense for purposes of habitual violent felony offender (HVFO) sentencing. During the sentencing hearing, defense counsel argued that the Georgia conviction for robbery by sudden snatching could not qualify as robbery under Florida law for the purpose of classifying Robinson as a habitual violent felony offender, because, in counsel’s words, all appellant had committed in Georgia was simply “glorified shoplifting.” For reasons that are not fathomable to me, defense counsel nevertheless conceded, upon questioning by the trial court, that Robinson did qualify as an HFO. The state contended, on the contrary, that robbery by sudden snatching was the equivalent of robbery in Florida, thus qualifying Robinson as an HVFO. The court agreed with defense counsel and declined to find Robinson an HVFO, instead finding him to be an HFO. But neither the court nor counsel ever discussed just what offense exists in Florida which is substantially similar to robbery by sudden snatching, in order for it to qualify as a predicate offense for HFO sentencing.

Obviously, the trial court erred in accepting defense counsel’s concession. If robbery by sudden snatching in Georgia is substantially similar to robbery in Florida, then Robinson qualified for HVFO sentencing, because robbery is one of the enumerated prior violent offenses under section 775.084(l)(b)(l). If, however, robbery by snatching an article from the presence of another in Georgia is not substantially similar to robbery in Florida, then it can only qualify as a predicate offense for HFO sentencing if it is shown to be substantially similar to some other felony. In the written HFO order, the trial court merely characterized robbery by sudden snatching as a qualifying offense, without elaboration. Yet, I cannot conceive of any felony in Florida that would be similar to it.

The fact that defense counsel conceded HFO status does not establish such status when it appears that the necessary predicate offenses are absent. See Watkins v. State, 622 So.2d 1148 (Fla. 1st DCA 1993), disapproved of on other grounds, White v. State, 666 So.2d 895 (Fla.1996); Gahley v. State, 605 So.2d 1309 (Fla. 1st DCA 1992); Trott v. State, 579 So.2d 807 (Fla. 5th DCA 1991). Nevertheless, because of the defense’s concession, the state did not have the opportunity to offer evidence establishing that Robinson’s Georgia offense qualified as a predicate HFO offense. I would therefore reverse and remand the case to the trial court for further proceedings to determine whether Robinson may be sentenced as a habitual felony offender. 
      
      . A consideration of the facts underlying the foreign offense appears to be appropriate. See. Abner v. State, 566 So.2d 594, 595 (Fla. 1st DCA 1990) ("Testimony taken during sentencing supports appellant's contention that his prior Alabama offense is the functional equivalent in Florida of aggravated battery.”) (emphasis added).
     
      
      . The state had sought both HVFO sentencing and HFO sentencing.
     
      
      . Felony theft, for example, requires the property taken to be valued at over $300, but no mention was made by the trial court of the value of the property that Robinson had stolen in Georgia. (The judgment from Georgia reflects that Robinson was fined $300 and ordered to pay $20 restitution, so presumably all he stole was $20.)
     