TERRY L. MASHBURN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1999-11-12
No. 98-1386
COBB and GRIFFIN, JJ., concur.
745 So. 2d 453 Florida District Court of Appeal, Fifth District (1999) Caution
Cited by 7 cases

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Holding

The court held that a defendant cannot be sentenced for robbery with a firearm when the jury specifically found no firearm possession and did not specify the type of weapon used.


Headnotes

[1] A jury's finding of guilt on "armed robbery" is insufficient to support sentencing for robbery with a firearm when the jury also makes a special finding that the defendan…

[2] The question of whether an object constitutes a deadly weapon is a question of fact for the jury to determine from the evidence.

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Facts & Procedural History

The defendant was convicted of armed robbery. The jury found he committed armed robbery but did not possess a firearm, and that he wore a mask. The tr…

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Opinion of the Court
GOSHORN, J.

GOSHORN, J.

Terry Mashburn raises three issues in this appeal from the judgment and sentence on the charge of robbery with a firearm. Although two of Mashburn’s contentions are without merit, we find that one issue warrants discussion and resentencing.

Mashburn was charged by information with robbery with a firearm1 while wearing a mask. The evidence at trial showed that Mashburn was one of three men who robbed a Winn-Dixie supermarket where Mashburn formerly worked on the stock crew. Both eyewitnesses testified that one of the other robbers had a gun; however, only one testified that Mashburn had a gun. One of the eyewitnesses testified that the third robber had a knife. The jury returned a verdict finding Mashburn guilty of “armed robbery,” with the special findings that Mashburn did not possess a firearm and that Mashburn wore a mask during the robbery. Mashburn was sentenced for robbery with a firearm.

Mashburn contends that the court erred in sentencing him for robbery with a firearm because the jury returned a verdict of guilt on “armed robbery” but also made the special finding that he did not carry a firearm. Mashburn submits that he should have been sentenced only for simple “robbery” because in Florida there is no such offense as “armed robbery” and because the jury made no specific finding regarding the use of a weapon. Mashburn argues that at most the jury verdict supports “robbery with a weapon.”

In State v. Tripp, 642 So. 2d 728 (Fla. 1994), the supreme court held that a felony could not be reclassified under subsection 775.087(1), Florida Statutes, where the jury merely found Tripp guilty of “charges made against him in the Information.” There, even though the information alleged that a weapon was used in the first-degree murder attempt, the court found the jury’s finding insufficient as to weapon usage “because there was no special verdict form reflecting a separate finding to this effect.” 642 So. 2d at 730. The court noted that “ ‘[t]he question of whether an accused actually possessed a firearm while committing a felony is a factual matter properly decided by the jury,’ ” and that “[t]he special verdict form — not allegations in an information — indicates when a jury finds a weapon has been used.” Id. (quoting State v. Overfelt, 457 So. 2d 1385, 1387 (Fla.1984)); see also Palmer v. State, 692 So. 2d 974 (Fla. 5th DCA 1997) (error to sentence defendant based on possession of semi-automatic weapon where jury merely found that defendant had used a “firearm”).

In the instant case, the jury returned a verdict finding Mashburn of guilty of “armed robbery” along with a special finding that he did not possess a firearm. Although these findings are consistent under the principal theory on which the jury was instructed, the jury did not specify (because it was not asked to) what type of weapon it found was used in the robbery. Whether the weapon is a “firearm or other deadly weapon” or simply a “weapon” determines the level of the offense for scoring purposes.2 “Whether or not an object is a deadly weapon is a question of fact to be determined by the jury from the evidence.” White v. State, 723 So. 2d 357, 357 (Fla. 5th DCA 1998); see also Duba v. State, 446 So. 2d 1167 (Fla. 5th DCA 1984).

Although defense counsel objected at the sentencing hearing to Mashburn being sentenced for robbery with a firearm, at trial the defense acquiesced in the use of the verdict form which gave the option of “armed robbery” without specification as to what type of weapon, if any, was used during the robbery. However, it has been held that the burden is on the State to ensure that a special finding is made and that a defendant does not waive the issue by not requesting a special form. See Estevez v. State, 713 So. 2d 1039, 1040 (Fla. 3d DCA) (“We are unable to accept the state’s position that defendant waived this issue for review arguing that the defendant had the burden of ensuring the jury made this finding. This burden is part and parcel of the state’s burden of producing sufficient evidence to convict the defendant.”) (citation omitted), review granted, 719 So. 2d 893 (Fla.1998). But cf. Morris v. State, 658 So. 2d 155, 156 (Fla. 1st DCA 1995) (finding any error in verdict form unpreserved as well as invited where defendant “affirmatively express[ed] his approval” of form).

Mashburn is correct that he should not have been adjudicated and sentenced for robbery with a firearm. On remand, he is to be resentenced for the offense of robbery with a weapon.

REVERSED and REMANDED for re-sentencing.

COBB and GRIFFIN, JJ., concur. . § 812.13(2)(a), Fla. Stat. (1997).

. It is clear from the record that the jury found that a weapon was used in the robbery by at least one of the three robbers. However, it was not asked, and therefore did not specify, what type of weapon was used.


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Citator

Cited By

  • Richardson v. State, 7 So. 3d 549 (Fla. 5th DCA 2009)
    …. State, 658 So. 2d 155 (Fla. 1st DCA 1995). The Fourth District’s decision in Wilson v. State, 566 So. 2d 36 (Fla. 4th DCA 1990), is distinguished in that it did not address an unpreserved, invited error. This Court’s decision in Mashburn v. State, 745 So. 2d 453 (Fla. 5th DCA 1999), likewise did not address an invited error. It addressed the State’s failure to include on the verdict form a special finding required to enhance the defendant’s penalty. Unlike this case, the State had the burden to procure the…
  • Neal v. State, 50 So. 3d 96 (Fla. 4th DCA 2010)
    …d a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084”). . See Mashburn v. State, 745 So. 2d 453 (Fla. 5th DCA 1999) (defendant should be adjudicated guilty of and sentenced for offense of robbery with a weapon, rather than robbery with a firearm, where jury returned verdict finding defendant guilty with special finding that he did not possess…
  • Ornez v. State, 806 So. 2d 516 (Fla. 5th DCA 2001)
    …PER CURIAM. AFFIRMED. See Mashburn v. State, 745 So. 2d 453 (Fla. 5th DCA 1999). COBB, HARRIS and PETERSON, JJ., concur.…

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