Clark v. State

635 So. 2d 68, 1994 Fla. App. LEXIS 163, 1994 WL 9524

Opinion

WEBSTER, Judge.

In this direct criminal appeal, appellant seeks review of his armed robbery conviction. The sole issue raised is whether the trial court erroneously denied appellant’s motion for judgment of acquittal because the evidence was legally insufficient to establish that appellant was carrying “a firearm or other deadly weapon” at the time of the offense. § 812.13(2)(a), Fla.Stat. (1991). We affirm.

We agree with the state that appellant failed to preserve for review the issue he now seeks to raise. E.g., Showers v. State, 570 So.2d 377 (Fla. 1st DCA 1990); Cornwell v. State, 425 So.2d 1189 (Fla. 1st DCA 1983). Moreover, even if the issue had been preserved for appeal, the result would not be different. Unlike Butler v. State, 602 So.2d 1303 (Fla. 1st DCA 1992), upon which appellant relies, in this case the evidence in support of the proposition that appellant carried “a firearm or other deadly weapon” included direct testimony by the victim (who had received firearms training in the military) that he had actually observed appellant holding what appeared to be a small-caliber handgun. Such evidence is sufficient to distinguish this ease from Butler, and to justify submitting it to the jury.

AFFIRMED.

JOANOS and KAHN, JJ., concur.