Fletcher v. State, No. 84-865

CourtCourt of Appeal of Florida (US)
Writing for the CourtSHARP; ORFINGER; DAUKSCH; DAUKSCH
Citation10 Fla. L. Weekly 1610,472 So.2d 537
Decision Date27 June 1985
Docket NumberNo. 84-865
Parties10 Fla. L. Weekly 1610 Dorian FLETCHER, Appellant, v. STATE of Florida, Appellee.

Page 537

472 So.2d 537
10 Fla. L. Weekly 1610
Dorian FLETCHER, Appellant,
v.
STATE of Florida, Appellee.
No. 84-865.
District Court of Appeal of Florida,
Fifth District.
June 27, 1985.
Rehearing Denied July 11, 1985.

Page 538

James B. Gibson, Public Defender, Larry B. Henderson, Asst. Public Defender, and Kenneth Witts, Certified Legal Intern, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.

SHARP, Judge.

Fletcher appeals from his conviction of attempted robbery with a weapon. He maintains the state presented insufficient evidence that a weapon was used. He also challenges the trial court's application of section 775.0845, Florida Statutes (1983), which enhances the penalty for an offense where the offender, while committing the offense, wears a device that conceals his identity. We affirm.

The evidence given at trial established that late one evening, Fletcher and another man dressed themselves as women and solicited an automobile ride from Charles Otts. He thought they were female prostitutes. Fletcher and his cohort propositioned Otts but he refused. After Otts stopped the car, Fletcher pulled the car keys out of the ignition and stated, "If you want your keys back you're going to have to give us some money."

Otts replied that he did not have any money. Fletcher then placed an object to his throat and told him it was a razor blade. Otts did not see the blade, but he felt it touch his throat and he described it as "cold and hard." Fletcher's companion joined in threatening that if the victim did not give them some money they would cut him up. Otts managed to flee from his car to a telephone, where he called the police. Fletcher and his companion sought to restrain Otts, and they shouted they were looking for a bottle to break to use as an additional weapon. The following day Otts identified Fletcher as one of the individuals who had tried to rob him.

The state charged Fletcher with attempted robbery with a deadly weapon, to-wit: a firearm or a cutting instrument. The jury, however, found him guilty of the lesser included offense of attempted robbery with a weapon. 1 At trial, defense counsel

Page 539

moved for a judgment of acquittal based upon insufficient evidence to prove use of a deadly weapon.

Initially, we think it was not fatal to the prosecution that a weapon was not introduced into evidence inasmuch as the police never found one. See, e.g., G.E.G. v. State, 417 So.2d 975, 977 (Fla.1982) (where a defendant is charged with possession of a controlled substance, that substance, if available must be introduced into evidence). See also T.T. v. State, 459 So.2d 471 (Fla. 1st DCA 1984) (Evidence sufficient to support finding of use of a firearm in robbery where victims testified defendant had an object which appeared to be a gun and defendant stated to victims, "Give me the money or I'll blow your brains out," and "Stop or I'll shoot.").

Further, we think that based upon Otts' testimony regarding the physical characteristics of the object pressed against his throat and Fletcher's admissions as to the nature of the object, that there was sufficient evidence presented from which a jury could find that the object held to Fletcher's throat was a razor blade--clearly a "deadly weapon" under such circumstances. 2 See United States v. Seastrunk, 580 F.2d 800 (5th Cir.1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 863, 59 L.Ed.2d 50 (1980) (Evidence sufficient to establish use of gun where victim testified she was familiar with guns and defendant had opened his shirt and displayed what she thought was a gun butt); T.T. v. State, supra; compare Ryder v. State, 464 So.2d 1324 (Fla. 5th DCA 1985) (Robber's statement, "This is a holdup," without evidence that defendant in fact had a weapon, cannot amount to clear and convincing proof of the possession necessary for departure from the guideline sentence for unarmed robbery).

Next, Fletcher maintains the trial court erred by overruling his objection to the state's special verdict form which reads:

We, the jury, find that while committing this offense, the defendant was wearing devices that concealed his identity.

The state derived this special verdict form from section 775.0845, Florida Statutes (1983), which...

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27 practice notes
  • State v. Bishop, No. 19907
    • United States
    • Supreme Court of Utah
    • February 3, 1988
    ...1413-14 (11th Cir.1985) (construing 31 U.S.C. § 5322(b); reporting violation as part of pattern of illegal activity)); Fletcher v. State, 472 So.2d 537, 539 (Fla.Ct.App.1985) (construing a sentence enhancement statute for wearing a hood, mask, or other device while committing an 213 See McG......
  • Hall v. State, No. 85-2099
    • United States
    • Court of Appeal of Florida (US)
    • March 18, 1987
    ...See Mitchell v. State, 493 So.2d 1058 (Fla. 1st DCA 1986); Franklin v. State, 476 So.2d 1346 (Fla. 1st DCA 1985); Fletcher v. State, 472 So.2d 537 (Fla. 5th DCA 1985); T.T. v. State, 459 So.2d 471 (Fla. 1st DCA 1984). We have considered Streetman v. State, 455 So.2d 1080 (Fla. 2d DCA 1980).......
  • Guzman-Aviles v. State, Case No. 5D17-250.
    • United States
    • Court of Appeal of Florida (US)
    • August 25, 2017
    ...was in possession 226 So.3d 345of a firearm." Akins v. State , 838 So.2d 637, 639 (Fla. 5th DCA 2003) (citing Fletcher v. State , 472 So.2d 537 (Fla. 5th DCA 1985) ; Crump v. State , 629 So.2d 231 (Fla. 5th DCA 1993) ). Further, "[i]t is not fatal to the prosecution if the state does not in......
  • Mitchell v. State, No. 95-02169
    • United States
    • Court of Appeal of Florida (US)
    • July 11, 1997
    ...circumstantial evidence has been used to prove that a weapon or deadly weapon was used during an offense. See, e.g., Fletcher v. State, 472 So.2d 537 (Fla. 5th DCA 1985) (cold, hard object held to throat could be razor blade, as robber claimed); Smith v. State, 645 So.2d 124 (Fla. 1st DCA 1......
  • Request a trial to view additional results
27 cases
  • State v. Bishop, No. 19907
    • United States
    • Supreme Court of Utah
    • February 3, 1988
    ...1413-14 (11th Cir.1985) (construing 31 U.S.C. § 5322(b); reporting violation as part of pattern of illegal activity)); Fletcher v. State, 472 So.2d 537, 539 (Fla.Ct.App.1985) (construing a sentence enhancement statute for wearing a hood, mask, or other device while committing an 213 See McG......
  • Hall v. State, No. 85-2099
    • United States
    • Court of Appeal of Florida (US)
    • March 18, 1987
    ...See Mitchell v. State, 493 So.2d 1058 (Fla. 1st DCA 1986); Franklin v. State, 476 So.2d 1346 (Fla. 1st DCA 1985); Fletcher v. State, 472 So.2d 537 (Fla. 5th DCA 1985); T.T. v. State, 459 So.2d 471 (Fla. 1st DCA 1984). We have considered Streetman v. State, 455 So.2d 1080 (Fla. 2d DCA 1980).......
  • Guzman-Aviles v. State, Case No. 5D17-250.
    • United States
    • Court of Appeal of Florida (US)
    • August 25, 2017
    ...was in possession 226 So.3d 345of a firearm." Akins v. State , 838 So.2d 637, 639 (Fla. 5th DCA 2003) (citing Fletcher v. State , 472 So.2d 537 (Fla. 5th DCA 1985) ; Crump v. State , 629 So.2d 231 (Fla. 5th DCA 1993) ). Further, "[i]t is not fatal to the prosecution if the state does not in......
  • Mitchell v. State, No. 95-02169
    • United States
    • Court of Appeal of Florida (US)
    • July 11, 1997
    ...circumstantial evidence has been used to prove that a weapon or deadly weapon was used during an offense. See, e.g., Fletcher v. State, 472 So.2d 537 (Fla. 5th DCA 1985) (cold, hard object held to throat could be razor blade, as robber claimed); Smith v. State, 645 So.2d 124 (Fla. 1st DCA 1......
  • Request a trial to view additional results

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