Michael GAINS, Lonnie Williams and Joseph Edward Williams, a/k/a Milton

Kearney, Appellants,
STATE of Florida, Appellee
District Court of Appeal of Florida,
First District.
417 So.2d 719 (1982)

 McCORD, Judge.

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 This appeal rises out of a criminal episode which occurred on October 1, 1980, at the Florida First National Bank on Merrill Road in Jacksonville, Florida. At approximately 11 a. m. on that date, three black males, Michael Gains, Lonnie Williams, and [p. 722] a third juvenile (not tried in this cause) entered into the bank and, while brandishing pistols, took approximately $1,065 of the bank's money from the custody of one bank teller, Betty Jean Cook, and something over $26,000 of the bank's money from a second teller, Bonnie Thompson.  Thompson and Cook were working at different bank teller windows at the time of the robbery.  The testimony of the various witnesses reveals that Lonnie Williams and the juvenile took the money from Cook and that the juvenile and Michael Gains took the bank money from Thompson.  While the robbery was in progress, a mailman, John R. Osterhout, unfortunately entered the bank on personal banking business.  Lonnie Williams put a gun to his head, forced him to the floor, and took his wallet and its contents.

 As the three robbers left the bank, they walked slowly across the parking lot and calmly got into a car.  This car had been parked far away from the bank at the end of the parking lot facing outward.  While in the parking lot, the three men were not seen to be carrying guns, the masks worn during the robbery, or money.  The driver, Joseph Williams, had not been inside the bank and sat casually in the car as the others got in.  The car pulled slowly out of the lot, stopping because of traffic and obeying traffic signals.

 Meanwhile, a customer at one of the bank's drive-in windows noticed the commotion inside the bank.  She followed the car as it left the parking lot and entered into a residential neighborhood, still obeying traffic signals and not speeding.  This witness waved down a police car which immediately gave chase.

 When the police tailing the appellants first observed their car, it was not violating any traffic laws.  As the police pulled closer, the officer noted that the passengers, Gains, Lonnie Williams, and the juvenile, did something unusual:
.... (They) saw me coming down Townsend Boulevard and they turned and starting talking to the driver.
At that point, when they'd made a complete turn onto Townsend Boulevard, the two in the back and Lonnie Williams in the front all laid down inside the vehicle as they approached my patrol car, which at that time I was still northbound coming up on them.
 At this point, the officer turned on his lights and pulled in front of the car.  The driver initially eluded the officer by driving up into a yard, and a chase ensued.  This officer never lost sight of the vehicle during the two- minute chase which was concluded when the car being pursued crashed into another car at the intersection of Lone Star and Samontee.  During the chase Lonnie Williams fired his pistol at the officer approximately 15 times, and on several occasions reached into the back seat as if getting aid or ammunition.

 . . . . In the commission of the crime, both the actor and the one who aids and abets him are principals in the first degree and may be charged and convicted of the crime.  § 777.011, Fla.Stat.  It is not necessary that the aider or abettor be physically present aiding and abetting his partner or partners in the crime.  However, he must be sufficiently near or so situated as to aid or encourage or to render assistance to the actual perpetrator.  Pope v. State, 84 Fla. 428, 94 So. 865 (1923).

 The guilt of an aider or abettor, of course, can be established by circumstantial evidence;  however, that evidence must be both consistent with guilt and inconsistent with any reasonable hypothesis of innocence.  Williams v. State, 206 So.2d 446 (Fla. 4th DCA 1968);  Davis v. State, 90 So.2d 629 (Fla.1956).  Here, it is apparent that Joseph Williams was not an active participant in the armed robbery.  Rather, the prosecution's theory implicitly rests on the assumption that he was the "wheelman" for the crime.  The evidence that, as the driver of the car, he was a knowing participant in the crime is circumstantial and thus more is needed than a suspicion or [p. 723] belief that under the circumstances, he knew what was occurring.  Espinoza v. State, 183 So.2d 560 (Fla. 3d DCA 1966).  The mere fact that he fled from the scene after the crime "does not exclude the reasonable inference that (he) had no knowledge of the crime until it actually occurred, and thus that he did not intend to assist in its commission."  J. H. v. State, 370 So.2d 1219, 1220 (Fla. 3d DCA 1979).  Applying these standards to the facts elicited by the prosecution, we find that Joseph Williams' conviction cannot be sustained on the basis of circumstantial evidence. Considered in a light most favorable to the state's case, the evidence merely places Joseph Williams in the automobile outside the scene of the crime.  There is no evidence that he had seen his companions carrying guns [see Williams v. State, 206 So.2d at 449] or that he had heard them discussing the crime prior to its inception.  There is no evidence that he could see into the bank and thereby have ascertained the apparent intentions of his companions.  There is no showing that he acted as a lookout for the trio.  See Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980).  Further, he drove out of the parking lot at normal speeds while obeying traffic signals.  He did not attempt to elude the police until, as we can fairly infer from the evidence, his companions informed him of something.  Pack, supra.  Moreover, upon being apprehended, he did nothing to resist arrest.  Thus, the evidence in this case just as reasonably supports the inference that, although Joseph Williams may have been in the general vicinity of the crime, he had no knowledge of his companions' intentions and attempted to flee only upon being apprised of their actions while in the bank.

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 The evidence adduced at trial sub judice fails to exclude a reasonable hypothesis of innocence and is thus inadequate to convict Joseph Williams as an aider and abettor to the armed robberies.  He should have been charged, if at all, as an accessory after-the-fact.  See, e.g., Ferguson v. State, 321 So.2d 139 (Fla. 4th DCA 1975).  Since the evidence was not sufficient, his convictions for the armed robberies are reversed.  Moreover, because the retrial of a defendant whose conviction has been reversed for insufficiency of the evidence would violate the double jeopardy clause of the United States Constitution, which is fully applicable to state criminal proceedings, we have no choice but to direct that he be discharged from further custody for this alleged crime.  Chaudoin v. State, 362 So.2d 398, 402 (Fla. 2d DCA 1978). Accord Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

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 The convictions and sentences of Lonnie Williams and Michael Gains are affirmed.  Joseph Williams' conviction is reversed and the case is remanded with directions that he be discharged from custody.