Gust v. State

558 So. 2d 450, 1990 WL 23279
CourtDistrict Court of Appeal of Florida
DecidedFebruary 28, 1990
Docket89-1218
StatusPublished
Cited by11 cases

This text of 558 So. 2d 450 (Gust v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gust v. State, 558 So. 2d 450, 1990 WL 23279 (Fla. Ct. App. 1990).

Opinion

558 So.2d 450 (1990)

Stephen Daniel GUST, Appellant,
v.
STATE of Florida, Appellee.

No. 89-1218.

District Court of Appeal of Florida, First District.

February 28, 1990.

*451 Stephen Daniel Gust, pro se.

Robert A. Butterworth, Atty. Gen., James W. Rogers, Asst. Atty. Gen., Tallahassee, for appellee.

ON MOTION FOR REHEARING

WILLIS, BEN C. (Ret.), Associate Juge.

In considering the State's motion for rehearing, it appears that there is some language which may be misleading and confusing. Desiring to clarify that which was intended, the said motion is hereby granted and the opinion now appearing in Gust v. State, 14 F.L.W. 2768 (Fla. 1st DCA December 1, 1989) is hereby withdrawn. Substituted is the opinion herein which expresses the findings and rulings intended as follows:

Appellant appeals an order reaffirming and adhering to a prior order which denied his pro se Rule 3.850 motion for post conviction relief. We reverse and remand.

In 1985 appellant pled nolo contendere to armed robbery for which he received 15 years imprisonment. On June 5, 1986, appellant filed a Rule 3.850 motion alleging that he was ineffectively represented by counsel in that the key-chain knife appellant asserts he used in the robbery was not a weapon under section 790.001(13), Florida Statutes (1985), and thus he should not have been advised to plead nolo contendere to armed robbery.

On June 10, 1986, the trial court denied the motion without a hearing stating that the record revealed that the defendant entered a written plea of no contest, that he acknowledged the plea was in his best interest, and that he bargained for the 15-year sentence.

This order was reversed and remanded because the trial court did not attach the portions of the files and records conclusively showing the defendant was entitled to no relief. Gust v. State, 504 So.2d 61 (Fla. 1st DCA 1987).

The trial court then issued an order which reiterated the findings set out in its June 10, 1986 denial of appellant's motion, adding that appellant acknowledged that he was satisfied with the services and advice of his attorney. To this order the trial court attached the original transcript of the sentencing proceedings together with the plea waiver and consent form. Appellant did not appeal this order.

On August 5, 1987, appellant filed another Rule 3.850 motion which the trial court denied without a hearing, stating that the grounds raised in the motion were the same as those raised in appellant's June 1986 motion, except for another ground which could have or should have been raised on direct appeal. Appellant appealed from the denial of his second motion and in Gust v. State, 535 So.2d 642 (Fla. 1st DCA 1988) (Gust II) this court reversed and remanded, finding that although the grounds stated in the previous motion may have been substantially identical to the grounds stated in the subsequent motion, the trial court's denial of the subsequent motion failed to attach the order and its attachments relating to the previous motion. This opinion was filed December 15, 1988.

On January 23, 1989, the trial court issued an order with attachments of all the foregoing orders and attachments from the Gust cases. This order essentially reiterated the findings made in its previous orders addressing Gust's motions. However, before the January 23, 1989 order was rendered, appellant had filed a motion for rehearing in this court on December 27, 1988 which this court denied January 25, 1989. On February 8, 1989, appellant filed a motion to quash the trial court's January 23, 1989 order as premature, which this court granted March 1, 1989.

*452 On April 7, 1989, the trial court rendered an order following this court's mandate on Gust II. That order reaffirms and adopts the trial court's January 23, 1989 order, however, once again, there are no attachments and no attachments appear in the record, i.e., the April 7, 1989 order appealed from does not have an attachment of the January 23, 1989 order which it adopts and neither the January 23 order nor its attachments appear in the record.

We consider the merits of this appeal, despite the lack of attachments in support of the trial court's April 7, 1989 order, to avoid visiting on appellant delays that he is powerless to avoid. We do so only because the portions of the record that the trial court relied upon are available to this court by virtue of the trial court's attempted compliance with the mandate in Gust II. See Mauldin v. State, 382 So.2d 844 (Fla. 1st DCA 1980) (in which the court declined to reverse for failure to attach a supporting record or file on the basis that it was able to obtain the record from appellant's prior appeal).

Section 790.001(13), Florida Statutes (1985), excludes "a common pocketknife" from its definition of "weapon." However, the validity of an armed robbery charge under section 812.13, Florida Statutes (1985), does not necessarily turn on whether the weapon used meets the definitional criteria of section 790.001(13). See Streetman v. State, 455 So.2d 1080 (Fla. 2d DCA 1984). We believe the definition of "weapon" most pertinent to an armed robbery charge is found in the Florida Standard Jury Instructions for armed robbery: "A `weapon' is legally defined to mean any object that could be used to cause death or inflict serious bodily harm." Florida Standard Jury Instructions in Criminal Cases, p. 156a (2d ed. 1989) (emphasis added). In Streetman the trial court determined that the fake plastic explosive used in the robbery could not be shown to be capable of causing death or great bodily harm, and thus entered judgment of acquittal as to the charge of robbery with a deadly weapon. However, it permitted the State to proceed with the case as to the lesser included offense of robbery with a weapon, declining to instruct the jury on the standard armed robbery jury instruction regarding the definition of "weapon", and instead instructed the jury on the definition of "weapon" as set forth in section 790.001(13). The Second District reversed appellant's judgment and sentence for robbery with a weapon because "[i]t appears clear that each of the devices enumerated in section 709.001(13) [sic] has the actual ability to cause death or inflict bodily harm ... [and] the composition of the bomb and its explosive characteristics was simply insufficient to permit the jury lawfully to conclude that the device possessed any capacity to inflict harm." Id. at 1082. The court continued, however, that

Florida courts have utilized the statutory definition of "weapon" provided in section 790.001(13) to determine whether a particular object constitutes a "weapon" for purposes of section 812.13(2)(b). See, e.g., Depasquale v. State, 438 So.2d 159, 160 (Fla. 2d DCA 1983); Hartman v. State, 403 So.2d 1030, 1031 (Fla. 4th DCA 1981); McCray v. State, 358 So.2d 615, 617 (Fla. 1st DCA 1978). Under this approach, a device used in the course of a robbery qualifies as a "weapon" only if it is either one of the objects specifically delineated in the statute or a "deadly weapon.

Id. at 1082. Further, in Hartman, supra, the court stated that the

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Bluebook (online)
558 So. 2d 450, 1990 WL 23279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gust-v-state-fladistctapp-1990.