MICHAEL O'BRIEN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the victim's testimony regarding seeing the handle of a gun was sufficient evidence to support the armed robbery conviction, and thus trial counsel was not ineffective for failing to argue otherwise.
Appellant was convicted of armed robbery. The victim testified that appellant lifted his shirt, revealing the handle of a gun. On cross-examination, t…
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PER CURIAM.
Appellant, defendant below, appeals a final order denying his motion for post-conviction relief under Rule 3.850. We affirm.
Appellant was convicted of armed robbery. Appellant argues that his trial counsel was ineffective in failing to argue that there was insufficient evidence to prove appellant was armed during the robbery.
The robbery victim testified that the appellant had lifted his shirt thereby revealing the handle of a gun protruding from his waistband. On cross-examination the witness indicated that she had only seen guns in movies. Appellant argues that this renders her testimony insufficient to establish that appellant was armed with a firearm. We disagree. The extent of the witness’ knowledge goes to the weight of her testimony, which was properly submitted to the jury. T.T v. State, 459 So. 2d 471, 472 (Fla. 1st DCA 1984) (“Both victims testified that appellant held an object which appeared to be a gun.”); cf. United States v. Seastrunk, 580 F. 2d 800, 802 (5th Cir. 1978) (identification as gun where only gun butt visible; witness had seen guns before).
The cases relied on by appellant are inapposite. In I.O. v. State, 412 So. 2d 42 (Fla. 3d DCA 1982), there was conflicting testimony on whether the weapon was 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, 847-48 (Fla. 3d DCA), review denied, 480 So. 2d 1296 (Fla. 1985), the order under review is affirmed.
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Butler v. State, 602 So. 2d 1303 (Fla. 1st DCA 1992)…utomatic pistol from under his shirt and [*1306] threatened to “blow [one victim’s] head off” and to “blow [the other victim’s] brains out” was legally sufficient to sustain guilty verdicts of armed robbery with a firearm. See also O’Brien v. State, 546 So. 2d 32 (Fla. 3d DCA 1989) (testimony of victim that defendant lifted his shirt to reveal the handle of a gun sufficient); Meyer v. State, 498 So. 2d 554 (Fla. 4th DCA 1986) (testimony of victim that defendant pointed what appeared to be a dark-colored .45-…
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J.T.R. v. State, 901 So. 2d 409 (Fla. 3d DCA 2005)…PER CURIAM. Affirmed. See O’Brien v. State, 546 So. 2d 32 (Fla. 3d DCA 1989) (stating that where the robbery victim testified that the defendant had lifted his shirt thereby revealing the handle of a gun protruding from his waistband, but admitted that she had only seen guns in movies, the extent of the wi…
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Thompson v. State, 748 So. 2d 394 (Fla. 1st DCA 2000)…that the victim in the subject case may not have had military training, as in Clark, would not have precluded the jury from relying on the victim’s testimony here to establish that appellant carried a weapon during the robbery. In O’Brien v. State, 546 So. 2d 32. (Fla. 3d DCA 1989), a case we conclude is indistinguishable from the instant case, the court held the evidence to have been sufficient to go to the jury on the question of whether a gun had been used during a robbery where the victim had testified…
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
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- State v. Delmer Stirrup, 469 So. 2d 845 (Fla. 3d DCA 1985)
- In the Interest of T.T. v. State, 459 So. 2d 471 (Fla. 1st DCA 1984)
- I.O. v. State, 412 So. 2d 42 (Fla. 3d DCA 1982)
- United States v. Amos Seastrunk, 580 F.2d 800 (5th Cir. 1978)
- Hamilton v. State, 494 So. 2d 505 (Fla. 2d DCA 1986)
- Spellman v. State, 529 So. 2d 305 (Fla. 1st DCA 1988)