ISAAC HAMILTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Isaac Hamilton appeals his first degree felony robbery conviction. The Florida court held that despite evidence of a threat to use a firearm, Hamilton could only be convicted of second degree felony robbery because no actual firearm was carried during the robbery, and the specific statutory provision for robbery prohibits enhancement based on threatened weapons when no weapon was actually possessed.
A defendant cannot be enhanced from second degree to first degree felony robbery under section 775.087 when he carried no firearm, deadly weapon, or other weapon during the robbery, because section 812.13(2)(c) specifically provides that robbery is a second degree felony if the offender carried no weapon.
[1] A statute providing for felony enhancement does not apply when another statute expressly dictates a lesser degree of felony based on the absence of a weapon.
[2] Robbery is a second-degree felony if the offender carried no firearm, deadly weapon, or other weapon during the commission of the offense.
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Join FLexlaw to unlock all legal intelligence“Section 775.087(1) provides for enhancement of the degree of a felony if during the commission of the felony the defendant threatens to use any weapon or firearm. However, that statute begins with the phrase, 'unless otherwise provided by law.' Section 812.13(2)(c) specifically provides that 'if in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree.'”
The court explains the statutory conflict and notes that the specific robbery statute supersedes the general enhancement statute.
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Join FLexlaw to unlock all legal intelligenceHamilton robbed a bank in Pasco County. The information charged him with robbery and alleged he threatened to use a firearm. At trial, no firearm was …
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DANAHY, Chief Judge.
The defendant appeals his conviction for first degree felony robbery. We reject the defendant’s assertions of error in connection with his trial, but we agree with the defendant that under the facts of this case he could be convicted only of a second degree felony.
The defendant was charged with robbing a bank in Pasco County. The information alleged that during the course of the robbery the defendant threatened to use a firearm. No firearm was discovered in connection with the case, and none was tendered as evidence at trial. Neither the bank teller nor her supervisor, the only two people in the bank at the time of the robbery, actually saw a weapon during the course of the robbery. The teller testified that the robber told her to hurry up or he would blow her head off. The supervisor thought the robber had a gun because of the way the robber patted his stomach.
The state concedes that the information against the defendant did not charge armed robbery and that the evidence at trial did not establish an armed robbery. Instead, the state takes the position that it intended to charge the defendant with a simple robbery under section 812.13, Florida Statutes (1985), and use the allegation of threat to use a firearm as grounds for enhancement of the robbery from a second degree felony to a first degree felony under the provisions of section 775.087(l)(b), Florida Statutes (1985). The trial judge agreed with the state’s enhancement argument and entered a judgment finding the defendant guilty of a first degree felony robbery.
Section 775.087(1) provides for enhancement of the degree of a felony if during the commission of the felony the defendant threatens to use any weapon or firearm. However, that statute begins with the phrase, “unless otherwise provided by law.” Section 812.13(2)(c) specifically provides that “if in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree.”
Accordingly, we find that the enhancement statute, section 775.087, does not apply in this case because of the express provision of section 812.13(2)(c). We reverse the defendant’s conviction with directions that a judgment be entered finding him guilty of a second degree felony robbery and that he be resentenced accordingly-
Reversed and remanded.
RYDER and FRANK, JJ., concur.
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Spellman v. State, 529 So. 2d 305 (Fla. 1st DCA 1988)…appeal Spellman argues that his enhanced sentences for armed robbery are illegal because, under the charges and the evidence, he never had a firearm during any of the robberies. The Second District addressed this precise issue in Hamilton v. State, 494 So. 2d 505 (Fla. 2d DCA 1986). In that case the defendant was charged with robbery in an information which also alleged that he had threatened to use a firearm during the course of the robbery. No firearm was ever discovered in connection with the case, nor di…
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O'Brien v. State, 546 So. 2d 32 (Fla. 3d DCA 1989)…s genuine or a toy. The juvenile court, as trier of fact, was unable to resolve the conflict beyond a reasonable doubt, and made a specific finding to that effect. In Spellman v. State, 529 So. 2d 305, 306 (Fla. 1st DCA 1988), and Hamilton v. State, 494 So. 2d 505 (Fla. 2d DCA 1986), no one actually saw the weapon. As appellant has failed to establish that his trial counsel was ineffective, see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Stirrup, 469 So. 2d 845, 8…
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Johnson v. State, 560 So. 2d 1379 (Fla. 5th DCA 1990)…a weapon. The evidence did not establish Johnson actually carried or used a weapon. Nor did the jury find Johnson had or used a weapon. Spellman v. State, 529 So. 2d 305 (Fla. 1st DCA), rev. denied, 536 So. 2d 245 (Fla.1988) and Hamilton v. State, 494 So. 2d 505 (Fla. 2d DCA 1986), hold that section 812.-13(2)(c) “specifically provides that if in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree.” According…
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