Gaines v. State, 1D02-3992.
| Decision Date | 27 February 2004 |
| Docket Number | No. 1D02-3992.,1D02-3992. |
| Citation | 869 So.2d 603 |
| Parties | Terry A. GAINES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
Charles J. Crist, Jr., Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, Attorneys for Appellee.
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) (); Butler v. State, 602 So.2d at 1306 (); see also Bates v. State, 561 So.2d 1341 (Fla. 2d DCA 1990) ().
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.
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Holley v. State
...reversibly erred in denying the motion for JOA 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 c......
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Browne v. State
...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......
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