Thayer v. State
Docket: No. 91-03932
Court: District Court of Appeal of Florida; December 1, 1992; Florida; State Appellate Court
Lawrence Louis Thayer appeals his conviction for robbery with a firearm, seeking to suppress the victim's identification of him. The court finds the trial judge's decision on the identification was supported by the record and that there was no substantial likelihood of irreparable misidentification. However, the court agrees with Thayer that he cannot be convicted for possessing a firearm during the robbery, as he used a starter pistol that was non-functional and could not readily expel a projectile. Therefore, it does not meet the statutory definition of a firearm. The court remands the case for entry of a judgment of robbery without a firearm, under Florida Statutes section 812.13(2)(c), and for resentencing. Additionally, the trial court erroneously believed that sentencing under the habitual violent felony offender statute was mandatory. In light of the supreme court's decision in Burdick v. State, the trial court may reconsider sentencing options upon resentencing. The case is remanded for these adjustments, with concurrence from the other judges.