LAWRENCE LOUIS THAYER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Lawrence Louis Thayer appealed his conviction for robbery with a firearm, challenging both the victim's photopack identification and his conviction on the firearm element. The court upheld the identification but reversed the firearm conviction, finding that the starter pistol Thayer used did not meet the statutory definition of a firearm, and remanded for entry of a judgment for simple robbery and resentencing.
A starter pistol that cannot expel a projectile and cannot be readily converted to expel one does not meet the statutory definition of a firearm, so Thayer cannot be convicted of robbery with a firearm. Additionally, the trial court is not required to impose a habitual violent felony offender sentence and may reconsider this option upon resentencing.
[1] A trial court does not abuse its discretion in denying a motion to suppress a photopack identification if the findings are supported by the record and there is no substan…
[2] An unmodified starter gun that is not designed to expel a projectile and cannot be readily converted to do so does not qualify as a firearm under Florida law.
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“A "[f]irearm means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive." § 790.001(6), Fla.Stat. (1989).”
The statutory definition of firearm that the court applied to determine whether the starter pistol qualified.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThayer committed a robbery while wielding a starter pistol. The starter pistol had a plug in it and a non-functioning trigger mechanism, meaning it co…
The full statement of facts, procedural history, and disposition for this case are member content.
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PARKER, Judge.
Lawrence Louis Thayer appeals his conviction for robbery with a firearm and the sentence imposed thereon. We remand for entry of a judgment of robbery without a firearm and for resentencing.
Thayer seeks to suppress the victim’s photopack identification of him. We conclude that the trial judge’s findings are supported by the record and that he did not abuse his discretion in concluding that there was not a substantial likelihood of irreparable misidentification. See Grant v. State, 390 So. 2d 341 (Fla.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 303 (1981).
We, however, agree with Thayer in his argument that he could not be convicted of possessing a firearm during the robbery. A “[fjirearm means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive.” § 790.001(6), Fla.Stat. (1989). Thayer wielded a starter pistol during the robbery. There was a plug in the pistol and the trigger action did not work. Most courts have held that an unmodified starter gun does not meet the requirements of a firearm. See, e.g., Charley v. State, 590 So. 2d 5 (Fla. 1st DCA 1991); Ridley v. State, 441 So. 2d 188 (Fla. 5th DCA 1983); Morales v. State, 431 So. 2d 648 (Fla. 3d DCA 1983). But see Nash v. State, 374 So. 2d 1090 (Fla. 4th DCA 1979). A starter gun generally is not designed to expel a projectile. The gun in this case would not expel a projectile. Further, the starter gun in this case could not be converted readily to expel a projectile in that the plug in the pistol would have to be drilled and the trigger mechanism was not working. Thus, this case must be remanded for entry of a judgment under section 812.13(2)(c), Florida Statutes (1989).1 See Ridley.
Lastly, the trial court stated at the sentencing hearing that sentencing pursuant to the habitual violent felony offender statute was mandatory. The trial court did not have the benefit of the supreme court’s decision in Burdick v. State, 594 So. 2d 267 (Fla.1992). The Burdick court held that the trial court is not required to sentence a habitual offender to a habitual offender sentence. The trial court may reconsider upon resentencing whether it should impose a habitual violent felony offender sentence.
Remanded for entry of a judgment of robbery pursuant to section 812.13(2)(c), Florida Statutes (1989) and for resentencing.
THREADGILL, A.C.J., and BLUE, J., concur. . That subsection provides:
(c) 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, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
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Citator
Cited By
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Deangelo Andre Evans v. State, 758 So. 2d 1282 (Fla. 3d DCA 2000)…gned to, or may readily be converted to expel a projectile by the action of an [*1283] explosive; the frame or receiver of any such weapon; any device; or any machine gun.... ” A starter pistol is not designed to expel a projectile. Thayer v. State, 609 So. 2d 150, 151 (Fla. 2d DCA 1992), review denied, 618 So. 2d 211 (Fla.1993); Charley v. State, 590 So. 2d 5 (Fla. 1st DCA 1991). As such, the State has the burden of proving that “the starter gun could either expel a projectile, or be readily converted to do…
Authorities Cited
- Burdick v. State, 594 So. 2d 267 (Fla. 1992)
- Grant v. State, 390 So. 2d 341 (Fla. 1980)
- Delgado v. Israel, 451 U.S. 913 (U.S. 1981)
- Girardi v. Virginia, 451 U.S. 913 (U.S. 1981)
- Nash v. State, 374 So. 2d 1090 (Fla. 4th DCA 1979)
- Ridley v. State, 441 So. 2d 188 (Fla. 5th DCA 1983)
- Morales v. State, 431 So. 2d 648 (Fla. 3d DCA 1983)
- Denovel Atoine Wilson v. State, 590 So. 2d 5 (Fla. 1st DCA 1991)
- Charley v. State, 590 So. 2d 5 (Fla. 1st DCA 1991)