OSCAR GOMEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Oscar Gomez appealed his convictions for second-degree murder and armed robbery. The court reversed the second-degree murder conviction due to insufficient evidence of causation between the homicide and the underlying robbery, but affirmed the armed robbery conviction where a toy gun was used as a weapon.
The court reversed the second-degree murder conviction because the state failed to establish the required causal connection between the homicide and the robbery; it affirmed the armed robbery conviction because the toy gun, as used to strike the complainant, qualifies as a weapon under section 812.13(2)(b) despite not being a deadly weapon.
[1] A conviction for felony murder requires proof of a causal connection between the underlying felony and the homicide.
[2] A toy gun used to strike a robbery victim can qualify as a "weapon" for purposes of an armed robbery conviction, even if it is not a "deadly weapon."
Previewing 2 of 5 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“The state failed to establish, as it was required to do, a causal connection between the homicide herein and the underlying felony: the charged robbery herein. At best, the state merely showed that the robbery and the homicide occurred at the same time; there is no direct or circumstantial evidence showing that the homicide was causally related to the robbery.”
Establishes the requirement for felony-murder that the homicide must be causally connected to the underlying felony, not merely temporal coincidence.
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Join FLexlaw to unlock all legal intelligenceGomez and an accomplice robbed a complainant using a toy gun. During the robbery, Gomez's accomplice was shot and killed. It was unknown who fired the…
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PER CURIAM.
This is an appeal from a judgment of conviction and sentence for second-degree murder, and a judgment of conviction and a withheld sentence for armed robbery. Based on the following briefly stated legal analysis, (1) we reverse the second-degree murder conviction and sentence and remand with directions to discharge the defendant as to this count in the information, and (2) we affirm the armed robbery conviction as a conviction for armed robbery with a weapon [§ 812.13(2)(b), Fla.Stat. (1985)] and remand with directions to impose a sentence thereon.
First, we agree with the initial point on appeal asserted by the defendant Oscar Gomez that the trial court erred in denying his motion for a judgment of acquittal as to the charge of second-degree murder. The defendant was charged with second-degree murder as a felony-murder, that is, a mur der arising from the perpetration or attempted perpetration of a robbery. § 782.-04(l)(a)(2)(d), Fla.Stat. (1985).
The evidence adduced by the state below establishes that the defendant participated, with an accomplice, in a robbery of the complainant herein in which a toy gun was used; that the defendant’s accomplice was shot and killed during the commission of the robbery; and that it was unknown who in fact fired the fatal shot, it being clear that the robbery complainant did not. This being so, it is clear that the state failed to establish, as it was required to do, a causal connection between the homicide herein and the underlying felony: the charged robbery herein. At best, the state merely showed that the robbery and the homicide occurred at the same time; there is no direct or circumstantial evidence showing that the homicide was causally related to the robbery. Indeed, there is utterly no evidence as to who killed the defendant’s accomplice, or why. It therefore follows that a judgment of acquittal on the second-degree murder charge was mandated in this case. See Bryant v. State, 412 So. 2d 347, 350 (Fla.1982); Mahaun v. State, 377 So. 2d 1158, 1160 (Fla.1979); Garcia v. State, 439 So. 2d 328 (Fla. 3d DCA 1983); Mumford v. State, 19 Md.App. 640, 313 A. 2d 563, 566 (1974); W.L. Clark & W.L. Marshall, Law of Crimes § 401, at 209 (7th ed. 1967).
Second, the next point on appeal raised by the defendant Gomez becomes moot in view of our ruling on his first point.
Third, we reject the last point on appeal raised by the defendant Gomez as we believe there was abundant evidence adduced below that a non-deadly “weapon,” to wit: a toy gun, was carried by the defendant’s accomplice in the course of committing the charged robbery, which evidence is sufficient to sustain a conviction for armed robbery with a “weapon” under Section 812.13(2)(b), Florida Statutes (1985).
This is so because the toy gun, as used, qualifies as a “weapon” under the above statute because it was used to strike the robbery complainant several times — although, as the state concedes, the complainant received no serious injuries therefrom and, consequently, the toy gun, as used, was not a “deadly weapon” under Section 812.13(2)(a), Florida Statutes (1985).
See J.M.C. v. State, 331 So. 2d 366 (Fla. 3d DCA 1976); Bass v. State, 172 So. 2d 614 (Fla. 2d DCA 1965); § 790.001(13), Fla.Stat. (1985).
See generally W. LaFave & A. Scott, Handbook on Criminal Law § 94, at 703 (1972).
Affirmed in part; reversed in part and remanded.
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Carroll v. State, 497 So. 2d 253 (Fla. 3d DCA 1985)…But since there was no finding [*267] that the knife was a “deadly” weapon, only a thirty-year sentence under section 812.-13(2)(b), which makes robbery an “ordinary” first degree felony if a “weapon” is carried, is permissible. See Gomez v. State, 496 So. 2d 982 (Fla. 3d DCA 1986). Accordingly, after remand, the trial court shall reduce the sentence imposed as to count Y of the indictment from life to a thirty-year term of imprisonment. We also conclude that the consecutive three-year minimum mandatory ter…
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Mitchell v. State, 698 So. 2d 555 (Fla. 2d DCA 1997)…that Mr. Mitchell used the pistol as a bludgeon and created gashes on his wife’s head. Even if the pistol had been a toy gun, his intentional use of this metal object to attack his wife supported a conviction for aggravated battery. Gomez v. State, 496 So. 2d 982 (Fla.App.1986). Accordingly, we affirm this conviction. V. THE BB GUN IS NOT A FIREARM Part of the difficulty in this and similar cases stems from the statutory definition of a “firearm.” Section 790.001(6), Florida Statutes (1993), defines a “fir…
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Brooks v. State, 605 So. 2d 874 (Fla. 1st DCA 1992)…2d DCA 1990); Robinson v. State, 547 So. 2d 321 (Fla. 5th DCA 1989); Ridley v. State, 441 So. 2d 188 (Fla. 5th DCA 1983); Paul v. State, 421 So. 2d 696 (Fla. 2d DCA 1982); and MRR v. State, 411 So. 2d 983 (Fla. 3d DCA 1982); compare Gomez v. State, 496 So. 2d 982 (Fla. 3d DCA 1986) (toy gun was a “weapon” for purposes of armed robbery with a weapon conviction under section 812.13(2)(b) where the toy gun was used to strike the robbery [*876] complainant several times); Fletcher v. State, 472 So. 2d 537 (Fla.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mahaun v. State, 377 So. 2d 1158 (Fla. 1979)
- Wodford v. State (Fla. 1st DCA 2024)
- Bryant v. State, 412 So. 2d 347 (Fla. 1982)
- THE Florida BAR v. Aronson, 412 So. 2d 347 (Fla. 1982)
- Bass v. State, 172 So. 2d 614 (Fla. 2d DCA 1965)
- J. M. C. and D. P. S. v. State, 331 So. 2d 366 (Fla. 3d DCA 1976)
- Garcia v. State, 439 So. 2d 328 (Fla. 3d DCA 1983)