The Broward criminal lawyer, Florida edition explains the offense of armed robbery where a toy gun is used.
To be convicted of armed robbery with a firearm, the gun used in the crime has to be real. This was clarified by the case of Hamilton v. State (Florida 2011). In this case Hamilton committed armed robbery with a toy gun and was subsequently convicted of armed robbery for violating Florida Statute 812.13(2)(b). The crime was considered a first-degree felony offense. Appealing to the sentence, Hamilton argued that since the toy gun was not a real firearm, it did not endanger anybody, even though the victim thought the weapon was real.
“Therefore, the first-degree felony charge was not justified.” –Criminal Lawyer William Moore
The appeal court agreed with Hamilton, and stated that since the armed robbery with toy gun was used , it did not meet the definition of a weapon, which is an object that can cause serious bodily harm or death. Even though the victim was not aware of the gun being not real, and was placed in fear, the court looked at the nature of the instrument and its uses, rather than the victim’s subjective fear.
“The court therefore held that Hamilton should be convicted for robbery as a second degree felony offense applicable under Florida statute 812.13(2)(c).” – Criminal Lawyer William Moore
Toy Used as a Weapon
However, the court clearly distinguished this decision from the ruling of Gomez v. State (Florida 1986) where the conviction of armed robbery with weapon was upheld, even though a toy gun was used in the crime. In this case, however, the perpetrator struck the victim with the toy gun many times during the robbery. Therefore, the court held that the instrument even though it was a toy gun could have caused serious bodily harm by the way it was used.
“Hence, even though the gun was not able to fire a projectile, the way the perpetrator used it, made it a weapon. In Hamilton v. State case however, there was no evidence to show that the toy gun was used in any manner to cause bodily harm.” –Florida Criminal Lawyer William Moore
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