ROBERT CLAYTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Clayton appealed his robbery conviction and prison releasee reoffender designation, arguing the weapon used was not a firearm and his classification was improper due to an unconstitutional statute. The Fifth District Court of Appeal affirmed the conviction and designation while certifying a conflict with another district regarding the retroactive application of a curative statute.
The court affirmed the conviction, holding that the evidence established the weapon was a firearm because it was designed to expel a projectile by explosive action, satisfying the statutory definition regardless of whether it was loaded or operable. The court also affirmed the prison releasee reoffender designation based on Hersey v. State, which held that Chapter 02-210 retroactively cured the constitutional infirmity of Chapter 99-188.
[1] A weapon is a "firearm" if it is designed to, or could be readily converted to, expel a projectile by the action of an explosive, and the fact that the weapon was not loa…
[2] The definition of a "firearm" includes the frame of a firearm and does not require that the firearm be loaded or operable during the criminal episode.
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“To establish that a weapon is a "firearm," the State need only prove that Clayton's weapon was designed to, or could be readily converted to expel a projectile.”
Establishes the statutory standard for proving a weapon qualifies as a firearm under Florida law
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Join FLexlaw to unlock all legal intelligenceClayton was convicted of robbery with a firearm. The weapon used was a Bulldog type revolver manufactured in Belgium between 1878 and 1914, designed t…
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ORFINGER, J.
Robert Clayton appeals his conviction of robbery with a firearm and his designation as a prison releasee reoffender. Clayton contends that the weapon used during the robbery was not a firearm. He further contends that his classification as a prison releasee reoffender was improper because Chapter 99-188, Laws of Florida, was determined to be unconstitutional. We affirm.
At trial, the State’s firearms expert testified that the weapon Clayton used during the robbery was a Bulldog type revolver, manufactured in Belgium between 1878 and 1914. The weapon was designed to fire a .44 caliber Bulldog bullet, which is no longer commercially available, but which can be made by someone skilled in hand loading ammunition. The State’s expert also testified that the weap on Clayton used was designed to expel a projectile by the action of an explosive, and that with the proper ammunition, would fire.
Section 790.001(6), Florida Statutes (2000), defines a firearm to mean:
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; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or 'any machine gun. The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.
Clayton argues that because the firearms expert could not determine the precise make, model or serial number of the weapon and that ammunition could be made only by someone with skills and equipment he did not possess, the evidence was insufficient to prove he possessed a firearm. Clayton’s argument fails to consider that the definition of a firearm includes the frame of a firearm and does not require that the firearm be loaded or operable during the criminal episode. Mitchell v. State, 698 So. 2d 555, 558 (Fla. 2d DCA 1997). To establish that a weapon is a “firearm,” the State need only prove that Clayton’s weapon was designed to, or could be readily converted to expel a projectile. Bentley v. State, 501 So. 2d 600, 602 (Fla.1987). The fact that Clayton’s weapon was not loaded or that he lacked ammunition was irrelevant. Id. Accordingly, the evidence supports the jury’s conclusion that the weapon used by Clayton during the robbery was a firearm.
We also reject Clayton’s argument that he was improperly classified as a prison releasee reoffender. Clayton correctly observes that section 775.082(9)(d), Florida Statutes (2001), was found to be unconstitutional because Chapter 99-188, which enacted changes to section 775.082(9)(d), violated the single subject rule. See Taylor v. State, 818 So. 2d 544 (Fla. 2d DCA 2002). However, as Clayton properly concedes, in Hersey v. State, 831 So. 2d 679 (Fla. 5th DCA 2002), this court held that the enactment of Chapter 02-210, Laws of Florida, cured Chapter 99-188’s constitutional infirmity and applied retroactively. Accordingly, relying on Hersey, we reject Clayton’s argument, but in doing so recognize that our opinion conflicts with Green v. State, 839 So. 2d 748 (Fla. 2d DCA 2003) (holding that the curative effect of Chapter 02-210 could not be applied retroactively, for to do so would violate the ex post facto clauses of the United States and Florida Constitutions). We certify conflict with Green and the following question of great public importance:
DOES CHAPTER 02-210, LAWS OF FLORIDA, RETROACTIVELY CURE THE SINGLE SUBJECT CONSTITUTIONAL INFIRMITY OF CHAPTER 99-188, LAWS OF FLORIDA?
AFFIRMED, QUESTION CERTIFIED.
THOMPSON, C.J. and SHARP, W., J., concur.
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Flournoy v. State, 847 So. 2d 597 (Fla. 5th DCA 2003)…PER CURIAM. We affirm the trial court’s summary denial of Michael Flournoy’s motion pursuant to Florida Rule of Criminal Procedure 3.800(a). See Clayton v. State, 842 So. 2d 971 (Fla. 5th DCA 2003). Consistent with Clayton, we also certify conflict with Green v. State, 839 So. 2d 748 (Fla. 2d DCA 2003). AFFIRMED. SHARP, W„ PETERSON and PLEUS, JJ., concur.…
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Williams v. State, 870 So. 2d 213 (Fla. 2d DCA 2004)…la. 2d DCA 2003), held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions. But see Clayton v. State, 842 So. 2d 971 (Fla. 5th DCA 2003). Williams alleged that he committed the offense of trafficking in methamphetamine in July 2000, which is within the Taylor window.3 Pursuant to Green, if Williams committed the offense within the Taylor window, the trial court i…
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Hall v. State, 846 So. 2d 1200 (Fla. 2d DCA 2003)…rder granting relief and the new sentence, arguing that chapter 2002-212, Laws of Florida, provided for retroactive application of the statute. We rejected this argument in Green v. State, 839 So. 2d 748 (Fla. 2d DCA 2003). But see Clayton v. State, 842 So. 2d 971 (Fla. 5th DCA 2003). Accordingly, we affirm the State’s appeal. Affirmed. SALCINES and COVINGTON, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Taylor v. State, 818 So. 2d 544 (Fla. 2d DCA 2002)
- Green v. State, 839 So. 2d 748 (Fla. 2d DCA 2003)
- Hersey v. State, 831 So. 2d 679 (Fla. 5th DCA 2002)
- Bentley v. State, 501 So. 2d 600 (Fla. 1987)
- Daniels v. State, 698 So. 2d 555 (Fla. 1st DCA 1997)
- Mitchell v. State, 698 So. 2d 555 (Fla. 2d DCA 1997)