TERRY A. GAINES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was convicted of two counts of kidnapping and robbery with a weapon. The court affirmed the kidnapping convictions but reversed the armed robbery conviction due to insufficient evidence that the covered drill constituted a weapon likely to cause death or great bodily harm.
The State failed to prove that the covered drill was used as a weapon in the requisite manner. The conviction for robbery with a weapon is reversed, and the case is remanded for entry of judgment for unarmed robbery and resentencing.
[1] A conviction for robbery with a weapon requires proof that the object used was a weapon in a manner likely to cause death or great bodily harm.
[2] Evidence of threatening motion toward victims or verbal threats is necessary to establish an object was used as a weapon in a robbery.
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Join FLexlaw to unlock all legal intelligence“the State failed to prove that the drill, which was covered with a bandana, was used as a weapon in a manner likely to cause death or great bodily harm”
establishes the deficiency in the State's proof regarding the robbery with a weapon charge
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Join FLexlaw to unlock all legal intelligenceAppellant committed robberies involving a drill covered with a bandana. The record contains no evidence that Appellant made threatening motions with t…
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PER CURIAM.
Appellant challenges his convictions and sentences for two counts of kidnapping and one count of robbery with a weapon. We affirm Appellant’s convictions for kidnapping without discussion.
However, regarding Appellant’s conviction for robbery with a weapon, the State failed to prove that the drill, which was covered with a bandana, was used as a weapon in a manner likely to cause death or great bodily harm. The record contains no evidence that Appellant made any threatening motion toward the victims with the drill and never verbally threatened to shoot or harm them. Appellant also never threatened to use the drill as a bludgeon or other type of weapon. See Prosser v. State, 742 So. 2d 400 (Fla. 1st DCA 1999) (reversing conviction for armed robbery where there was no evidence that defendant used shrouded object in threatening manner or used object as a bludgeon); Butler v. State, 602 So. 2d at 1306 (reversing conviction for armed robbery where defendant never used object as a bludgeon or threatened to use the object as a gun); see also Bates v. State, 561 So. 2d 1341 (Fla. 2d DCA 1990) (reversing conviction for robbery with a deadly weapon where defendant carried a “nut driver” underneath a rag and did not use or threaten to use the object in a violent way).
Because the evidence was legally insufficient to establish that Appellant carried a “weapon” during the robbery, we reverse his conviction for robbery with a weapon and remand for entry of a judgment of unarmed robbery pursuant to section 812.13(2)(c), Florida Statutes (2001), and to resentence Appellant in accordance with that judgment.
AFFIRMED in part; REVERSED in part; REMANDED with directions.
BOOTH, VAN NORTWICK and LEWIS, JJ., concur.
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Holley v. State, 877 So. 2d 893 (Fla. 1st DCA 2004)…ate presented no evidence that the object was used, or threatened to be [*897] used, as a weapon, the trial court reversibly erred in denying the motion for JO A insofar as it related to any offense greater than unarmed robbery. See Gaines v. State, 869 So. 2d 603 (Fla. 1st DCA 2004) (reversing and remanding for entry of judgment of unarmed robbery and for re-sentencing, because evidence that defendant carried drill covered with bandana during robbery was insufficient to establish that defendant carried weapo…
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Browne v. State, 239 So. 3d 171 (Fla. 5th DCA 2018)…e it was not likely to produce death or great bodily harm. See Hamilton, 71 So. 3d at 248 (holding that toy gun was not "weapon" under standard jury instruction 15.1 because there was no evidence defendant used it to strike victim); Gaines v. State, 869 So. 2d 603, 604 (Fla. 1st DCA 2004) (holding that drill covered in bandana was not "weapon" because [*175] there was no evidence defendant threatened to shoot or harm victim with it); Stanley, 757 So. 2d at 1275 (holding that gun without firing pin was not "we…
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Browne v. State (Fla. 5th DCA 2018)…was not likely to produce death or great bodily harm. See Hamilton, 71 So. 3d at 248 (holding that toy gun was not “weapon” under standard jury instruction 15.1 because there was no evidence defendant used it to strike victim); Gaines v. State, 869 So. 2d 603, 604 (Fla. 1st DCA 2004) (holding that drill covered in bandana was not “weapon” because there was no evidence defendant threatened to shoot or harm victim with it); Stanley, 757 So. 2d at 1275 (holding that gun correct statement of the law.” Wh…
Authorities Cited
- Bates v. State, 561 So. 2d 1341 (Fla. 2d DCA 1990)
- Prosser v. State, 742 So. 2d 400 (Fla. 1st DCA 1999)