
    Connie Faye LINCOLN, Appellant, v. STATE of Florida, Appellee.
    No. 82-873.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.
    As Clarified On Rehearing Jan. 26, 1984.
    
      James B. Gibson, Public Defender, and Curley R. Doltie, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

The appellant Lincoln’s husband robbed a drug store and she drove him from the scene. Law enforcement officers pursued the car four miles before she stopped. She was charged with and convicted of armed robbery. She denied knowing in advance that her husband intended to rob the drug store, and claimed the flight in the car was induced by fear of her husband. At the scene of the arrest she was crying and told arresting officers, “He made me do it.” The question is the sufficiency of the evidence to sustain the robbery conviction, as opposed to a conviction as an accessory after the fact, with which she was not charged and which is not a lesser included offense of the charge. See Newkirk v. State, 222 So.2d 435 (Fla. 3d DCA 1969); Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968).

A number of Florida cases have held that merely driving the perpetrator to and from the scene of the offense, absent any other incriminating involvement, is insufficient circumstantial evidence of the requisite intent to participate in the offense itself. Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972); Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968).

The question, then, is whether or not the added element of flight and police pursuit of the vehicle supplies the evidentiary basis for a finding of criminal intent. In an analogous factual situation in A.Y.G. v. State, 414 So.2d 1158 (Fla. 3d DCA 1982), this question was answered in the negative. Therein it was held:

Evidence that the defendant was present at the scene of the crime and drove the “getaway” car at the request of the perpetrator of the burglary does not exclude the reasonable inference that the defendant had no knowledge of the crime until after it occurred; thus, she did not have the requisite intent.

414 So.2d at 1159. See also Gains v. State, 417 So.2d 719 (Fla. 1st DCA 1982), review denied, 426 So.2d 26 (Fla.1983).

As in Gains, there was no direct evidence in the instant case that Connie Lincoln had seen her husband carry a gun into the drug store; had heard him discuss his intention to commit the robbery; had been able to see the robbery in progress; or had acted as a look-out during the course of the robbery.

Despite the contrary authority from the First and Third Districts, the more logical and persuasive view is that driving a getaway car in an elusive manner in an attempt to avoid the police creates a prima facie case from which the finder of fact at trial may properly infer complicity in intent to commit the crime. On that basis we affirm, but certify direct conflict with the decisions in A.Y.G. and Gains pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv).

AFFIRMED.

ORFINGER, C.J., concurs.

DAUKSCH, J., concurs specially with opinion.

DAUKSCH, Judge,

concurring specially:

I concur with the result because I think the evidence is legally sufficient to convict. See Tibbs v. State, 397 So.2d 1120 (Fla.1981). Appellant’s husband had asked appellant before the robbery to drive him to “some different places, that he had to make some money. And I asked him, I said are you talking about robbery? And he says, well, either that or a drugstore where I can get some drugs so I won’t have to spend any money, you know, to go buy some. And I told him I didn’t want any part of it, you know, I didn’t wanna be stealing nothing and I didn’t wanna be any part of that at all. And that’s when he said, you’re my wife, you’re my legal wife. He said, yes, you are taking me to go in, you are going with me. So, I, that’s when we left, just started driving up and down the street.” Later, “He told me, he said, park the car here. He didn’t tell me he was going to rob it.” She parked the car in front of the drugstore while her husband went in and robbed the store at gunpoint. When he came out of the store she drove the car some four miles with the police in pursuit. That is enough evidence for the jury to decide whether she is guilty as a principal to armed robbery. Her husband told her he was going to commit a robbery, told her to drive the car.- She did. I do not think it is proper for this court to certify a conflict because I think the evidence is stronger here than in A.Y.G. v. State, 414 So.2d 1158 (Fla. 3d DCA 1982) and Gains v. State, 417 So.2d 719 (Fla. 1st DCA 1982). The principle in those cases is soundly based upon their factual settings.  