ELDRIDGE A. MCCRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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McCray was convicted of robbery while armed with a weapon based on evidence that he carried a cigarette lighter shaped like a gun. The court reversed, holding that a cigarette lighter does not constitute a 'weapon' under Florida law unless it is capable of inflicting death or great bodily harm, and remanded for resentencing on simple robbery.
A cigarette lighter does not qualify as a 'weapon' under Section 812.13(2)(b) unless the evidence establishes that by its use or threatened use, death or great bodily harm is likely to be produced. The evidence here, showing only that the lighter was pointed at the victim as if it were a gun, was insufficient to support conviction for robbery armed with a weapon.
[1] A cigarette lighter shaped like a gun does not constitute a "weapon" for the purposes of aggravated robbery penalties unless its use or threatened use is likely to produc…
[2] Robbery is a second-degree felony, but the offense becomes a first-degree felony if a firearm or other deadly weapon is utilized during the commission of the robbery.
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Join FLexlaw to unlock all legal intelligence“We do not believe the cigarette lighter constituted a "weapon" for the purposes of the aggravated penalty provided for in Section 812.13(2)(b), Florida Statutes (1975).”
The court's core holding that the cigarette lighter does not meet the legal definition of weapon.
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Join FLexlaw to unlock all legal intelligenceDuring a robbery, the appellant carried a cigarette lighter shaped like a gun and pointed it at the victim as if it were a gun. He was convicted of ro…
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PER CURIAM.
Information alleged that appellant committed robbery and that in the course of committing the robbery, he carried a firearm, contrary to Section 812.13(2)(a), Florida Statutes (1975). Appellant was convicted of robbery while carrying a weapon, Section 812.13(2)(b), Florida Statutes (1975), and was sentenced to thirty years imprisonment. Appellant contends that the evidence was insufficient to establish that he carried a weapon in the course of committing the robbery.
The evidence adduced by the State established that during the commission of the robbery appellant carried a cigarette lighter which was shaped like a gun. We do not believe the cigarette lighter constituted a “weapon” for the purposes of the aggravated penalty provided for in Section 812.13(2)(b), Florida Statutes (1975).
Robbery is a second degree felony punishable by a maximum term of imprisonment of fifteen years. Sections 812-13(2)(c); 775.082(3)(c), Florida Statutes (1975). The Legislature has provided that if a firearm or other deadly weapon is utilized in the robbery, then the offense is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life. Section 812.13(2)(a), Florida Statutes (1975). Further, if a weapon is utilized during the course of the robbery, the offense is a first degree felony punishable by imprisonment not exceeding thirty years. Sections 812.13(2)(b), 775.082(3)(b), Florida Statutes (1975). Thus, it is apparent that the Legislature intended that punishment be more severe where a criminal uses a firearm or weapon capable of inflicting great bodily harm to assist him in the robbery. The purpose of these provisions in part, is to discourage the use of such firearms or weapons during a robbery.
Section 790.001(13), Florida Statutes (1976 Supp.), defines the term “weapon” as “any dirk, metallic knuckles, slingshot, billie, tear gas gun, chemical weapon or device, or any other deadly weapon except a firearm or common pocket knife.” The cigarette lighter is not a “weapon” as previously defined unless it is classifiable as a “deadly weapon.” Although a cigarette lighter might be so classified if, by its use or threatened use, death or great bodily harm is likely to be produced,1 the evidence herein did not so establish. The cigarette lighter was merely pointed at the victim as if it were a gun.
Accordingly, the judgment and sentence for robbery while armed with a weapon is reversed and the cause is remanded for entry of judgment of robbery under Section 812.13(2)(c) and for imposition of sentence thereunder. MILLS, Acting C. J., and ERVIN and MELVIN, JJ., concur. . For example, if the object were used as a bludgeon, depending on its size and weight, an object, such as a cigarette lighter, might be classified as a deadly weapon.
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Robinson v. State, 547 So. 2d 321 (Fla. 5th DCA 1989)…e is constructive. An object can also be construed a deadly weapon because of its use or threatened use during the alleged crime. R.T. v. State, 448 So. 2d 604 (Fla. 3d DCA 1984); Duba v. State, 446 So. 2d 1167 (Fla. 5th DCA 1984); McCray v. State, 358 So. 2d 615 (Fla. 1st DCA 1978). A razor blade, like a nail file, keys or hat pin, is a common household item which when carried on or about a person, such as in a lady’s pocketbook, is not a concealed weapon unless it is used in a threatening manner so that it…
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Butler v. State, 602 So. 2d 1303 (Fla. 1st DCA 1992)…that it was a gun, the “nut driver” was not a “weapon” at all. Therefore, it reversed the conviction and remanded for the entry of a judgment finding the defendant guilty of unarmed robbery, pursuant to Section 812.13(2)(e). Accord McCray v. State, 358 So. 2d 615 (Fla. 1st DCA 1978) [cigarette lighter shaped like a gun, which was merely pointed at the victim as if it were a gun, is not a “weapon” for purposes of Section 812.13(2)(b) ]. See also Carter v. State, 503 So. 2d 969 (Fla. 4th DCA 1987) (conviction…
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Depasquale v. State, 438 So. 2d 159 (Fla. 2d DCA 1983)…d construction, will or is likely to cause death or great bodily harm.” 56 Am.Jur. Weapons and Firearms § 2 at 991 (emphasis added); Smith v. Nussman, 156 So. 2d 680 (Fla. 3d DCA 1963); see also Standard Jury Instruction on Robbery; McCray v. State, 358 So. 2d 615 (Fla. 1st DCA 1978). A BB gun is an air or gas operated gun designed to expel lead or other metallic shot. Accordingly, a BB gun possesses the capability of inflicting great bodily harm; a capability that is heightened if a BB gun is used in the m…
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