JULIAN BLANCO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Julian Blanco was convicted of armed robbery for pressing an orange soda bottle against a cashier's back during a supermarket robbery. The court reversed the conviction, holding that the State failed to present sufficient evidence that the bottle qualified as a weapon under Florida law, and remanded for conviction of simple robbery instead.
The conviction for armed robbery was reversed because the State failed to introduce evidence that the orange soda bottle was of a nature or used in a manner likely to cause death or great bodily harm. The case was remanded with directions to adjudge Blanco guilty of simple robbery under section 812.13(2)(e) and for re-sentencing.
[1] A conviction for armed robbery requires proof that the object used was a weapon as defined by statute or was used in a manner likely to cause death or great bodily harm.
[2] An object used in a robbery qualifies as a weapon only if it is specifically delineated in the statute or is a deadly weapon.
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Join FLexlaw to unlock all legal intelligence“The question is whether the [instrument] was of a nature or used in a manner that it could have resulted in death or great bodily harm.”
Establishes the objective test for determining whether an object qualifies as a weapon in armed robbery cases
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Join FLexlaw to unlock all legal intelligenceBlanco robbed a supermarket cashier by pressing an orange soda bottle against the cashier's back to simulate a firearm. At trial, the State presented …
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pgjj CURIAM.
Julian Blanco appeals a judgment of conviction and sentence for robbery with a weapon in violation of section 812.13(2)(b), Florida Statutes. We reverse the conviction and sentence and remand with directions to adjudge the defendant guilty of simple robbery under section 812.13(2)(e), and for re-sentencing.
The State charged Blanco with robbing a supermarket cashier with a weapon, namely, a bottle. The evidence adduced at trial showed that the defendant apparently pressed an orange soda bottle against the cashier’s back to simulate a firearm. At the close of the State’s case, Blanco’s counsel moved for a judgment of acquittal stating in part: “We would also argue to the Court in the light most favorable to the State at this time, they failed to prove the element of the charge of armed robbery. Specifically, ... the use of a weapon.” The trial court denied the motion, and denied Blanco’s renewed motion at the close of all the evidence. Blanco was ultimately convicted and sentenced to five years imprisonment as a habitual felony offender. We agree with Blanco’s argument that the State failed to present sufficient evidence to carry its burden of proving that Blanco carried or used a “weapon” during the robbery.
Florida courts have generally utilized the statutory definition of “weapon” provided in section 790.001(13) to determine whether a particular object constitutes a “weapon” for purposes of section 812.13(2)(b)_ Using this approach, courts determine that a device used in the course of a robbery qualifies as a weapon only if it is either one of the objects specifically delineated in the statute or a deadly weapon....
Where the instrument is not a firearm as statutorily defined [or a specifically delineated weapon], Florida courts apply an objective test and look to the nature and actual use of the instrument and not to the subjective fear of the victim or intent of the perpetrator.... The question is whether the [instrument] was of a nature or used in a manner that it could have resulted in death or great bodily harm.... The state must prove that the instrument used as a weapon was likely to cause great bodily harm because of the way it was used during the crime.
Williams v. State, 651 So. 2d 1242, 1242-43 (Pla. 2d DCA 1995) (citations omitted).
In the instant case, the State failed to introduce any evidence that the orange soda bottle was of a nature or used in a manner likely to cause death or great bodily harm. See, e.g., Williams, 651 So. 2d at 1243 (coffee); Butler v. State, 602 So. 2d 1303 (Fla. 1st DCA 1992) (long hard unidentified object carried under clothing); Bates v. State, 561 So. 2d 1341 (Fla. 2d DCA 1990) (nut driver covered by a rag). Consequently, Blanco’s motion for judgment of acquittal, on this point, should have been granted. Blanco’s other point on appeal is without merit and we do not address it.
Thus, we reverse the armed robbery conviction and vacate Blanco’s sentence. We remand with directions to adjudge Blanco guilty of unarmed robbery under section 812.13(2)(c) and to resentence him accordingly-
Reversed and remanded with directions.
1. That subsection provides: “ 'Weapon' means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife.”
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Holley v. State, 877 So. 2d 893 (Fla. 1st DCA 2004)…ath or great bodily harm during robbery, where defendant made no threatening motion with drill toward victims, never orally threatened to shoot or harm victims, and never threatened to use drill as bludgeon or other type of weapon); Blanco v. State, 679 So. 2d 792 (Fla. 3d DCA 1996); Bates v. State, 561 So. 2d 1341 (Fla. 2d DCA 1990) (reversing conviction for armed robbery with deadly weapon and remanding for entry of judgment of second-degree robbery and for re-sentencing, because nut driver held by defendan…
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Tribbitt v. State, 984 So. 2d 624 (Fla. 2d DCA 2008)…erated in the statute, the courts use an objective test and look at whether the object was used in such a manner that it could have caused great bodily harm or death. See Williams v. State, 651 So. 2d 1242, 1243 (Fla. 2d DCA 1995); Blanco v. State, 679 So. 2d 792, 793-94 (Fla. 3d DCA 1996). The subjective intent of the perpetrator, or the [*626] subjective fear of the victim, is not determinative of whether the object would qualify as a weapon. Hutchinson, 816 So. 2d at 1187-88. Ms. Simo testified that dur…
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Suit v. State, 901 So. 2d 986 (Fla. 4th DCA 2005)…deadly for the purpose of sentence enhancement. In Jones v. State, 885 So. 2d 466, 468 (Fla. 4th DCA 2004), this court held that evidence was insufficient to establish deadliness of a stun gun used in a sexual battery case, while in Blanco v. State, 679 So. 2d 792 (Fla. 3d DCA 1996), the Third District held that the state failed to provide sufficient evidence of deadliness of a soda bottle held against a victim’s neck in a threatening manner as though it were a firearm. Here, however, there is evidence that…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Butler v. State, 602 So. 2d 1303 (Fla. 1st DCA 1992)
- Alfraedo Williams v. State, 651 So. 2d 1242 (Fla. 2d DCA 1995)
- Bates v. State, 561 So. 2d 1341 (Fla. 2d DCA 1990)