Brooks v. State, 91-87

• Decision Date: 09 March 1992
• Docket Number: No. 91-87,91-87
• Citation: 605 So.2d 874
• Parties: 17 Fla. L. Weekly D2458, 17 Fla. L. Weekly D670 Clarence BROOKS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 874

605 So.2d 874

17 Fla. L. Weekly D2458, 17 Fla. L. Weekly D670

Clarence BROOKS, Appellant, v.STATE of Florida, Appellee.

No. 91-87.

District Court of Appeal of Florida First District.

March 9, 1992.

On Motion for Rehearing April 15, 1992.

On Motion for Second Rehearing Oct. 22, 1992.

Nancy A. Daniels, Public Defender, Glen P. Gifford, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Laura Rush, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

Appellant appeals his convictions and sentences arising out of a crime spree.We agree with appellant that his conviction for robbery with a weapon should be reversed and a judgment entered for the lesser offense of simple robbery, because the starter pistol used in the offense did not constitute a weapon under the facts of this case.We affirm as to all other issues.

Turning to the arguments presented, we first note that appellant's challenge to the constitutionality of the habitual felony offender statute has been raised and rejected by this and other courts of this state, and does not form a basis for reversal.See e.g.Perkins v. State, 583 So.2d 1103(Fla. 1st DCA1991).Next, in Daniels v. State, 577 So.2d 725(Fla. 1st DCA1991), this court ruled that consecutive mandatory minimum sentences under the habitual violent felony offender statute are permissible.Finally, although it is inconsequential in light of our reversal of appellant's robbery with a weapon conviction, we note that at sentencing the trial court erroneously advised appellant that he would be eligible for parole in 30 years; however, section 775.084(4)(e), Florida Statutes(1989), provides that Chapter 947 shall not be applied to persons sentenced as habitual felons.

As to the offense charging robbery with a weapon, only a brief recital of the facts is necessary.Appellant drove a silver van into a self-service gas station.After pumping gas, he went to the pay window, displayed a small black pistol, and demanded money from the clerk, Robert Woodworth.With police in pursuit, he drove the van to a nearby neighborhood and fled on foot.He was apprehended and subsequently identified by Woodworth.Officers recovered a black starter pistol from the yard of a home between the points where the van was abandoned and appellant was apprehended.

In opposition to appellant's motion for judgment of acquittal on the count charging robbery with a weapon, the state argued below, as here, that although the starter pistol did not meet the statutory definition of a firearm, it was a weapon for purposes of section 812.13(2)(b) because it could have been used as a bludgeon.On appeal, appellant agrees that an object may be construed as a deadly weapon, which is encompassed within the definition of a weapon, section 790.001(13), Florida Statutes(1989)¹ because of its use or threatened use during an alleged crime.McCray v. State, 358 So.2d 615(Fla. 1st DCA1978).However, appellant contends that the starter pistol in this case could not be considered a deadly weapon because the undisputed evidence shows that its threatened use was as a firearm, and it was not used or threatened to be used as a bludgeon.We agree with appellant's contention.

As the state acknowledges, the McCray case focuses on the definition of weapon found in section 790.001(13).The state contends, however, that the Florida Standard Jury Instruction on Robbery, which also defines weapon, is relevant in this case.The Florida Standard Jury Instruction defines weapon as something that "could be used to cause death or inflict serious bodily harm."The state argues, accordingly, that the starter pistol in this case could have been used to cause death or inflict serious bodily harm.Aside from the fact that we find no evidentiary basis in the record to support this conclusion, we also find that the state's argument concerning the effect of the jury instruction is without merit.

It is true that 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).Streetman v. State, 455 So.2d 1080, 1082(Fla. 2d DCA1984).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.Id.As this court recognized in McCray, 358 So.2d at 617, a weapon is deadly if, by its use or threatened use, death or great bodily injury is likely to be produced.Whether a particular object is a deadly weapon oftentimes depends upon the nature and actual use of the instrument.Id.The state urges here that the standard jury instruction provides a different standard to measure weapon status from that of the definition of weapon contained in section 790.001(13).We disagree.As the Streetman court pointed out, both the standard jury instruction and the statutory definition focus on the capability of the instrument to injure.Streetman, 455 So.2d at 1082.

In this case, the state did not prove that the starter pistol had a capability to injure.The starter pistol was not used in a manner which would or could cause death or inflict serious bodily harm.Bates v. State, 561 So.2d 1341(Fla. 2d DCA1990);Robinson v. State, 547 So.2d 321(Fla. 5th DCA1989);Ridley v. State, 441 So.2d 188(Fla. 5th DCA1983);Paul v. State, 421 So.2d 696(Fla. 2d DCA1982);andMRR v. State, 411 So.2d 983(Fla. 3d DCA1982);compareGomez v. State, 496 So.2d 982(Fla. 3d DCA1986)(toy gun was a "weapon" for purposes of armed robbery with a weapon conviction under section 812.13(2)(b) where the toy gun was used to strike the robbery complainant several times);Fletcher v. State, 472 So.2d 537(Fla. 5th DCA1985)(razor blade a deadly weapon when it was held to the victim's throat in an attempted armed robbery).We therefore reverse the conviction for robbery with a weapon, and direct entry of a judgment of conviction for the lesser offense of simple robbery pursuant to section 812.13(2)(c), Florida Statutes(1989).

Finally, as we did in Daniels v. State, we certify the following question to the Florida Supreme Court:

GIVEN THE LEGISLATIVE INTENT UNDERLYING CHAPTER 88-131, LAWS OF FLORIDA, AND THE COURT'S DECISIONS IN STATE V. ENMUND, 476 SO.2D 165(FLA.1985), AND STATE V. BOATWRIGHT, 559 SO.2D 210(FLA.1990), DOES A TRIAL JUDGE HAVE THE DISCRETION, UNDER SECTIONS 775.021(4)AND775.084, FLORIDA STATUTES (1989), TO IMPOSE CONSECUTIVE MINIMUM MANDATORY TERMS OF INCARCERATION, FOR FELONIES COMMITTED BY AN HABITUAL VIOLENT FELONY OFFENDER?

AFFIRMED in part REVERSED in part and REMANDED for further proceedings consistent with this opinion.

ZEHMER and ALLEN, JJ., concur.

OPINION ON MOTION FOR REHEARING

PER CURIAM.

Appellant has filed a motion for rehearing, contending, and correctly so, that our opinion overlooks the supreme court's recent decision in Daniels v. State, 595 So.2d 952(Fla.1992), which was released just prior to the release of our opinion in this case.The supreme court's Daniels decision holds that a court may not impose consecutive mandatory minimum terms of incarceration for felonies committed by a habitual violent felony offender arising from the same criminal episode.

In the case before usappellant received consecutive minimum mandatories for attempted robbery of Barbara Rahilly, ¹ grand theft of an automobile belonging to Rahilly, grand theft of an automobile belonging to Louise Manning, and robbery with a weapon of Robert Woodworth, which we reduced to simple robbery for the reasons stated in our original opinion.We agree with appellant that because the attempted robbery of Rahilly and the grand theft of her automobile arose out of a criminal episode which took place in one continuous temporal sequence and at the same location, the minimum mandatories imposed for these two offenses should have been designated to run concurrently rather than consecutively.However, the offenses against the other two victims were separate temporally and geographically from each other, and from the offenses against Rahilly and her property.We therefore adhere to our original holding that consecutive minimum mandatories for these offenses was permissible.

In its Daniels decision, the Florida Supreme Court analogized mandatory minimum sentences imposed under the habitual violent felony offender statute, section 775.084, Florida Statutes(Supp.1988), to sentences imposed under section 775.087, Florida Statutes,...