FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Mark S. Blechman,
S. Purdy, Public Defender, and Robert E. Wildridge, Assistant
Public Defender, Daytona Beach, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Carmen F.
Corrente, Assistant Attorney General, Daytona Beach, for
Browne appeals his conviction and sentence for robbery with a
weapon. He argues that the trial court erred by denying his
motion for judgment of acquittal because he did not use a
weapon during the robbery. We agree and reverse in part.
victim was standing by his car in a parking lot when a car
driven by Browne approached and waved him over. When the
victim came near the driver's window, Browne pointed what
appeared to be a double-barreled shotgun at the victim and
ordered him to hand over his wallet. The victim complied and
Browne drove away, resulting in a police chase and
Browne's arrest. When the police searched the car, they
found the double-barrel of a shotgun that had been detached
from the receiver, stock, and firing mechanism. Browne later
admitted he robbed the victim, but claimed he had not used a
State charged Browne with robbery with a weapon in violation
of section 812.13(2)(b), Florida Statutes (2015). At trial,
Browne moved for judgment of acquittal, arguing that the
State failed to prove the object used in the robbery was a
weapon as defined by section 790.001(13), Florida Statutes
(2015). The State disagreed, arguing that the standard jury
instruction on robbery, which defines a "weapon" as
"any object that could be used to cause death or inflict
serious bodily harm, " was controlling and that, because
the shotgun barrel could have been used as a club, that
element of the crime was satisfied. The trial court denied
the motion and the jury found Browne guilty of robbery with a
specific finding that he carried a weapon during the course
of the robbery. Browne renewed his motion for judgment of
acquittal after trial but before sentencing, and the court
denied it again. This appeal follows.
courts review de novo orders on motions for judgment of
acquittal. Pagan v. State, 830 So.2d 792, 803 (Fla.
2002). A conviction must be supported by competent,
substantial evidence. Id.; see Dale v.
State, 703 So.2d 1045, 1047 (Fla. 1997) (holding that
question of whether BB gun can be deadly weapon is question
of law, but question of whether BB gun was used in way
"likely to produce death or great bodily injury" is
question of fact for jury); Brown v. State, 86 So.3d
569, 572 (Fla. 2d DCA 2012) (holding courts may "reverse
convictions [of aggravated battery] when the State fails to
present competent substantial evidence that the object used
is a deadly weapon").
812.13(2) prohibits three types of robbery: simple robbery,
robbery with a weapon, and robbery with a deadly weapon.
Robbery with a weapon is a first-degree felony under section
812.13(2)(b). However, robbery with a firearm or a
"deadly weapon" is a first-degree felony punishable
by life in prison under section 812.13(2)(a). The robbery
statute does not define "weapon" or "deadly
weapon." See Mitchell v. State, 698 So.2d 555,
559 (Fla. 2d DCA 1997). Consequently, Florida courts apply
the definition of "weapon" found in section
790.001(13) to violations of the robbery statute. Stanley
v. State, 757 So.2d 1275, 1276 (Fla. 4th DCA 2000).
Section 790.001(13) defines a "weapon" as "any
dirk, knife, metallic knuckles, slungshot, billie, tear gas
gun, chemical weapon or device, or other deadly
weapon except a firearm or a common pocketknife, plastic
knife, or blunt-bladed table knife." (Emphasis added).
Florida Standard Jury Instruction Criminal 15.1-the
instruction applicable to robbery-defines a
"weapon" as "any object that could be used to
cause death or inflict serious bodily harm." More
importantly, the jury instruction defines a "deadly
weapon" as an object "used or threatened to be used
in a way likely to produce death or great bodily harm."
as here, a defendant is charged with robbery with a weapon,
the state must prove either that the object was one of the
enumerated weapons in section 790.001(13) or that it was a
"deadly weapon." When the object used is not one of
the enumerated objects in the definition of
"weapon" found in section 790.001(13), we apply an
objective test focusing on the nature and actual use of the
object, not on the subjective belief of the victim or intent
of the defendant, to determine whether it constituted a
"weapon." Hamilton v. State, 71 So.3d 247,
248 (Fla. 4th DCA 2011); Tribbitt v. State, 984
So.2d 624, 625-26 (Fla. 2d DCA 2008); Blanco v.
State, 679 So.2d 792, 793-94 (Fla. 3d DCA 1996). In
other words, the state must prove that, in the way it was
used, the instrument was likely to cause death or great
bodily harm. Blanco, 679 So.2d at 794. Needless to
say, the shotgun barrel used by Browne was not any of the
specifically delineated weapons found in section 790.001(13).
So, the issue is whether the State proved that the barrel was
a deadly weapon based on how it was used. We conclude it did
the language of the statute is clear and unambiguous and
conveys a clear and definite meaning, there is no occasion
for resorting to the rules of statutory interpretation and
construction; the statute must be given its plain and obvious
meaning." Donato v. Am. Tel. & Tel. Co.,
767 So.2d 1146, 1150 (Fla. 2000) (quoting Holly v.
Auld, 450 So.2d 217, 219 (Fla. 1984)). Moreover, courts
cannot construe an unambiguous statute to "extend,
modify, or limit, its express terms or its reasonable and
obvious implications." Id. at 1151 (quoting
Holly, 450 So.2d at 219). This would be "an
abrogation of legislative power." Id. Thus, the
statutory definitions guide us.
deadly weapon has been defined in the case law and standard
jury instruction on robbery in two ways. First, as an
object "used or threatened to be used in a way likely to
produce death or great bodily harm." Fla. Std. Jury
Instruct. (Crim.) 15.1; accord Holley v. State, 877
So.2d 893, 896 (Fla. 1st DCA 2004) (defining "other
deadly weapon" as "object which is used .
. . in such a way that it would be likely to cause death or
great bodily harm"); Stanley, 757 So.2d at 1277
(holding that inoperable gun was not weapon because it
"was not used in a manner which would or could cause
death or serious bodily injury, such as using it as a
club"). Or, as an object likely to cause death or great
bodily harm "when used in the ordinary and usual manner
contemplated by its design and construction."
Holley, 877 So.2d at 896 (quoting Robinson v.
State, 547 So.2d 321, 323 (Fla. 5th DCA 1989)).
the shotgun barrel that Browne used was detached from the
stock and firing mechanism of the shotgun, making it
impossible to use as a gun. He pointed the barrel at the
victim, but did not swing it or otherwise use it as a club or
bludgeon. There was no evidence that the "ordinary and
usual" use of the shotgun barrel itself is to cause
death or great bodily harm. See id. Nor was there
any evidence that Browne actually used the shotgun barrel to
strike the victim, and the way Browne did use it was not
likely to produce death or great bodily harm. See
Hamilton, 71 So.3d at 248 (holding that toy gun was 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 harm victim with it);
Stanley, 757 So.2d at 1275 (holding that gun without