WALTER ALLEN RYDER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Walter Ryder was convicted of unarmed robbery after telling a bank teller "this is a holdup" without brandishing a weapon. The trial court imposed a departure sentence of 30 months imprisonment based on the implication that Ryder possessed a weapon. The appellate court reversed, holding that mere implication of weapon possession does not meet the "clear and convincing" standard required for sentencing departure.
The court held that mere implication of weapon possession does not meet the "clear and convincing" standard required for sentencing departure. Robbers commonly merely imply weapon possession to bolster threats, and such implication cannot amount to proof of actual possession. The sentencing guidelines require clear and convincing proof of weapon possession, which was absent here.
[1] A statement by a robber that "this is a holdup" alone, without evidence of brandishing or possession of a weapon, does not constitute clear and convincing proof of weapon…
[2] The crime of unarmed robbery requires a taking by force, violence, assault, or putting in fear, which inherently involves at least an implied threat of violence or the cr…
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Join FLexlaw to unlock all legal intelligence“The sentencing guidelines rules and statutes require clear and convincing proof of possession of a weapon — mere implication does not meet that standard.”
Establishes the evidentiary standard for sentencing departure based on weapon possession
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Join FLexlaw to unlock all legal intelligenceRyder committed a bank robbery, telling the teller "I'm a desperate man — Get me the money — This is a holdup." He pleaded guilty to simple robbery un…
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COWART, Judge.
This is another case involving a departure from a guideline sentence.
Appellant robbed a bank telling the teller “I’m a desperate man — Get me the money — This is a holdup.” Appellant pled guilty to robbery (§ 812.13(1), Fla.Stat.), not armed robbery (§ 812.13(2)(a) or (b), Fla.Stat.). The recommended guideline sentence was any non-state prison sanetion.” The trial court stated, “Fm convinced that you said something [to the teller], even if you said ‘this is a holdup’ or whatever. It implies that you have a weapon — I’m going to aggravate on the basis of that_” The trial court imposed a departure sentence of thirty months imprisonment.
When a robber says “this is a holdup” without brandishing a weapon, there is some implication that the robber has a weapon or other means of applying violence. That implication is the very purpose of making that statement. The crime of robbery itself requires a taking by “force, violence, assault or putting in fear.” One cannot commit a simple (unarmed) robbery without at least making an assault [a threat to do violence coupled with an apparent ability to do so (§ 784.011(1), Fla. Stat.)], or inducing fear in some manner. All robberies involve the possibility of harm to someone, the victim, the robber or third persons. That is the very reason robbery is an offense against the public. Appellant did not actually use force or violence but only implied its possibility. As robberies go, this was a less dangerous and hence less atrocious type of unarmed robbery. There is absolutely no evidence that appellant “carried” a weapon or firearm at the time of the robbery (see § 812.13(2)(a) and (b), Fla.Stat.). Appellant’s assertion at sentencing that he did not carry a weapon was unchallenged. Robbers commonly merely imply the possession of a weapon in order to bolster their threat. That implication cannot amount to proof of the possession. The sentencing guidelines rules and statutes require clear and convincing proof of possession of a weapon — mere implication does not meet that standard. Accordingly, the implication alone is not a sufficient “clear and convincing” reason for departure from the guideline sentence for an unarmed robbery.
We reverse because we must follow the law that is binding on us, but our action does not imply that we believe sentencing judges should not have the discretion to sentence an unarmed robber to prison. Those with more authority, not we, have made that decision. See § 921.001, Fla. Stat. and Fla.R.Crim.P. 3.701 and the sentencing guidelines adopted by the Florida Supreme Court in Form 3.988.
The sentence is vacated and this case remanded for resentencing.
DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.
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Dorian Fletcher v. State, 472 So. 2d 537 (Fla. 5th DCA 1985)…863, 59 L.Ed.2d 50 (1980) (Evidence sufficient to establish use of gun where victim testified she was familiar with guns and defendant had opened his shirt and displayed what she thought was a gun butt); T.T. v. State, supra; compare Ryder v. State, 464 So. 2d 1324 (Fla. 5th DCA 1985) (Robber’s statement, “This is a holdup,” without evidence that defendant in fact had a weapon, cannot amount to clear and convincing proof of the possession necessary for departure from the guideline sentence for unarmed robbery)…
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Butler v. State, 602 So. 2d 1303 (Fla. 1st DCA 1992)…n during the offense.” State v. Baker, 452 So. 2d 927, 929 (Fla.1984). “Robbers commonly merely imply the possession of a weapon in order to bolster their threat. [However, t]hat implication cannot amount to proof of the possession.” Ryder v. State, 464 So. 2d 1324, 1325 (Fla. 5th DCA 1985). Thus, in Bates v. State, 561 So. 2d 1341 (Fla. 2d DCA 1990), the defendant was charged with robbery while carrying “a firearm or other deadly weapon,” in violation of Section 812.13(2)(a), Florida Statutes. At trial, the…
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Mullen v. State, 483 So. 2d 754 (Fla. 5th DCA 1986)…criminal activity to support his family as opposed to engaging in the same conduct as a hobby, for entertainment, or for personal gain. We do find that this reason for departure is improper because it is not supported by the record. Ryder v. State, 464 So. 2d 1324 (Fla. 5th DCA 1985). This reason is not duplicative of the first reason for departure since it was based on evidence actually presented at trial, whereas here there was insufficient proof to establish that Mullen was a long term seller of drugs, he…
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