An interesting case went to the Florida Fourth DCA. The question was, whether a Robbery, used with a Toy Gun could be enhanced to the offense of "Robbery with Weapon". Same question could be asked if a robber went into a bank and had his hand under his shirt and pointed at the teller as if the robber had a gun and demanded money. If in the teller's mind, the teller thought the robber had a gun, would that be Robbery with a Weapon?" Not according to the Fourth DCA, Hamilton v. State. 36,FLWD2242a(Fla.4th DCA). [10/12/2011]Generally speaking, committing a robbery with a toy gun will not support a conviction for, Robbery with a Weapon, which is enhanced to a first degree offense due to the use of a weapon. Even if the victim thought the weapon was real, the weapon or object used according to the Florida Standard Jury Instructions "could be used to cause death or inflict serious bodily harm." Very doubtful that a toy gun could cause death or serious bodily harm. According to the Florida Department of Law Enforcement:
FACTS: Hamilton committed a robbery using a toy gun, and was subsequently convicted for Robbery with a Weapon in violation of Section 812.13(2)(b), Florida Statutes, which enhances the offense to a first degree felony. Hamilton appealed, arguing that since he used a toy gun instead of a real firearm, and therefore did not actually endanger the victim, his conviction for the first degree felony was improper.
RULING: The Fourth District Court of Appeal agreed with the appellant, and held that evidence that a perpetrator used a toy gun in the commission of a robbery, by itself, is insufficient to support a conviction for armed robbery with a "weapon." Accordingly, the court held that Hamilton should be convicted only of Robbery under 812.13(2)(c), Florida Statutes, a second degree felony.
DISCUSSION: The enhanced statute under which Hamilton was originally convicted provides that "(i)f in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree." The Standard Jury Instruction (15.1) defines a "weapon" to be "any object that could be used to cause death or inflict serious bodily harm." In this case, the prosecution was unable to introduce any evidence to show that the toy gun could be used to cause death or inflict serious bodily harm. The court acknowledged that the victim did not know that the gun was not real, and was therefore understandably placed in fear. However, "Florida courts apply an objective test and look to the nature and actual use of the instrument and not to the subjective fear of the victim or intent of the perpetrator." (Citing Williams v. State, 651 So.2d 1242 (Fla. 2d DCA 1995).)
COMMENTS: The Hamilton court was careful to distinguish its decision in this case from the holding in Gomez v. State, 496 So.2d 982 (Fla. 2d DCA 1986,) where a conviction for Robbery with a Weapon was upheld when the perpetrator used a toy gun to strike the victim several times during the robbery. In that case, the toy gun could have inflicted serious bodily harm by the way it was actually used, even though it could not fire a projectile. In this case, however, there was no evidence that the toy gun was used in a similar manner.
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