STAFFORD HAMILTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hamilton was convicted of armed robbery with a weapon based on evidence that he used a toy gun. The court reversed, holding that the state presented insufficient evidence that a toy gun qualifies as a "weapon" under Florida law, which requires proof the object could cause death or serious bodily harm.
Evidence that a toy gun was used is insufficient to support a conviction for armed robbery with a weapon. A "weapon" under Florida law requires an objective showing that the object could be used to cause death or inflict serious bodily harm, not merely that the victim subjectively feared it.
[1] Evidence that a toy gun was used in a robbery is insufficient, by itself, to support a conviction for armed robbery with a "weapon" under Florida law.
[2] A "weapon" under Florida law is defined as any object that could be used to cause death or inflict serious bodily harm.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although section 812.13 fails to define the term "weapon," the definition for that term contained in the Florida Standard Jury Instructions is a correct statement of the law. Standard Jury Instruction 15.1 (2009) defines a "weapon" to mean "any object that could be used to cause death or inflict serious bodily harm."”
Establishes the legal definition of "weapon" for armed robbery convictions
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Join FLexlaw to unlock all legal intelligenceHamilton was charged with robbery with a weapon under Florida Statute §812.13(2)(b). The state's evidence showed that during the robbery, Hamilton use…
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The defendant argues that his conviction for robbery with a “weapon” should be reversed because the state presented evidence that the gun used in the robbery was not a firearm, but a toy gun. We agree with the defendant that such evidence, by itself, is insufficient to support a conviction for armed robbery with a “weapon.” Therefore, we reverse and remand for entry of judgment and resen-tencing on the lesser included offense of robbery.
The state charged the defendant with robbery with a weapon pursuant to section 812.13(2)(b), Florida Statutes (2009). That statute provides, “If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree.... ” In Dale v. State, 703 So.2d 1045, 1046 (Fla.1997), our supreme court stated that although section 812.13 *248fails to define the term “weapon,” the definition for that term contained in the Florida Standard Jury Instructions is a correct statement of the law. Standard Jury Instruction 15.1 (2009) defines a “weapon” to mean “any object that could be used to cause death or inflict serious bodily harm.”
In this case, the state did not introduce any evidence to show that the toy gun could be used to cause death or inflict serious bodily harm. While we appreciate that the victim did not know the gun was a toy and understandably was in fear, “Florida courts apply an objective test and look to the nature and actual use of the instrument and not to the subjective fear of the victim or intent of the perpetrator.” Williams v. State, 651 So.2d 1242, 1243 (Fla. 2d DCA 1995).
The state’s reliance on Gomez v. State, 496 So.2d 982 (Fla. 3d DCA 1986), is misplaced. There, the third district upheld a conviction for armed robbeiy with a weapon “because the toy gun ... was used to strike the robbery complainant several times.” Id. at 983. Here, however, the state’s evidence did not show that the defendant used the toy gun in any such manner.
Based on the foregoing, we are compelled to reverse, even though the defendant raised this argument for the first time on appeal. See F.B. v. State, 852 So.2d 226, 230-31 (Fla.2003) (“[A]n argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime ... meets the requirement of fundamental error — i.e., an error that reaches to the foundation of the case and is equal to a denial of due process.”).
We remand for the entry of judgment and resentencing on the lesser included offense of robbery pursuant to section 812.13(2)(c), Florida Statutes (2009) (“If in the course of committing the robbery the offender carried no ... weapon, then the robbery is a felony of the second degree .... ”). See Stanley v. State, 757 So.2d 1275, 1277-78 (Fla. 4th DCA 2000) (remanding for the entry of judgment and resentencing for the lesser included offense of robbery pursuant to section 812.13(2)(c) where the state failed to offer proof which would be necessary to convict the defendant of robbeiy with a “weapon”).
Reversed and remanded.
WARNER and DAMOORGIAN, JJ., concur.
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Monroe v. State, 148 So. 3d 850 (Fla. 1st DCA 2014)…dant’s conviction for driving on a suspended or revoked license where he never had a license at all, and remanding for an adjudication of guilt as to the lesser crime of driving without a valid driver’s license, which was proven); Hamilton v. State, 71 So. 3d 247 (Fla. 4th DCA 2011) (reversing a conviction for robbery with a weapon due to fundamental error in the State’s reliance on a toy gun as its proof of the defendant’s use of a weapon); Rodriguez v. State, 964 So. 2d 833 (Fla. 2d DCA 2007) (holding reve…
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Casais v. State, 204 So. 3d 969 (Fla. 5th DCA 2016)…State did not prove that the gift cards were credit cards. Therefore, Appellant could not be found guilty of uttering a forged credit card, and the trial court should have granted Appellant’s motions for judgment of acquittal. See Hamilton v. State, 71 So. 3d 247, 247-48 (Fla. 4th DCA 2011) (determining that fundamental error occurred because the trial court convicted the defendant for robbery with a weapon when “the state presented evidence that the gun used in the robbery was not a firearm, but a toy gun”)…
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C.W. v. State, 205 So. 3d 843 (Fla. 2d DCA 2016)…State presented no evidence that the BB gun'was loaded or operable or that C.W. implied or otherwise represented that the BB gun was operable, loaded, or capable of inflicting death or great bodily injury through his actions. See Hamilton v. State, 71 So. 3d 247, 248 (Fla. 4th DCA 2011) (reversing conviction for robbery with a weapon when “the [SJtate did not introduce any evidence to show that the toy gun could be used to cause death or inflict serious bodily harm”); Parrish v. State, 66 So. 3d 1030, 1033…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- F.B. v. State, 852 So. 2d 226 (Fla. 2003)
- Dale v. State, 703 So. 2d 1045 (Fla. 1997)
- Alfraedo Williams v. State, 651 So. 2d 1242 (Fla. 2d DCA 1995)
- Serod Stanley v. State, 757 So. 2d 1275 (Fla. 4th DCA 2000)
- Gomez v. State, 496 So. 2d 982 (Fla. 3d DCA 1986)