on a pro se basis and this court had asked me to address two questions with regards to this case the st question was whether the eight k b s courts rejection of mister vegas as ineffective assistance of counsel claim rested on its deficient performance pronk its prejudiced from or both and it is our position after reviewing the record that it rested on the deficient performance prong secondly this court asked us to brief whether the state he s corpus our court reasonably concluded that consul w it was very interesting to me when i read the transcript of that trial that while everyone seemed away or the fact that mister big allegedly committed this robbery with a handling of the case before and after the jury trial that the state the defense were and the court was well aware that the deadly weapon in this case was a b gun when this case came before the jury in two thousand and seven it was already well established that a b b gun could be a deadly weapon i have in in front of me the state courts he b s explanation in which the state court discusses the fact that it is a b b gun replica of a semiautomatic pistol when committing a home invasion robbery three days later therefore the prosecutor gave the defendant the benefit of the doubt and assume that he had used the same  kind is that it was not me however if the jury believes that there was evidence that it was me then it was not committed this robbery was not committed with a deadly weapon oh let me ask you this so the question before us and i agree with with judge brasher it is this case was was interesting lee tried is the best way that i can i can i could say it from the state side especially but it was tried the way it was and so we have what we have and the question for us is was it unreasonable for the district court to finds that they know that that it was that it would have been completely ineffective that no reasonable counsel would would have made would have not made the argument or would have made the argument about this being a god and so for me i look to doll a for dale which is the one thousand nine hundred and seven case from the florida weapon and then to find it is a factual question to be answered by the jury in each case so if that's the state of the law how can it be unreal how could it be unreasonable for the state court in looking at this law to say that it was so unreasonable for a trial counsel to read that and say it's up it's a jury question there is evidence that he had something that looked like a gun he pointed to people who showed it to everyone and people responded to it as if it was a gun that  well the evidence as to whether it is a deadly b b gun is a deadly weapon or not needs to be supported by competent substantial evidence in this case as the trial transcript indicates there are two things that were utilized there is competent substantial evidence one is that the big says that she believes that the perpetrator had a gun and secondly there was an officer who was not in the restaurant but he was outside twenty five to thirty feet who said that he was that he had seen the defendant the evidence showed that she took it out he pointed it at her he pointed at other patrons patrons got on the floor he pointed the gun at the class register and the reddit guy had to register for the gallagher register gave money over to your client and that was observed by not just the waitress but by the officers so it's not just what they saw but the what happened with other people who saw the same same same gun looking device the only two  that is that is correct and in in the dale case that your very had an opportunity to view the weapon st hand in this case that's the first of all the issue in jail the question and it was simply is this jury question or is this question is a matter of law and the court decided to jury question it then went on to say of key importance in that particular case was that the jury was able but it didn't say that issue was disp opportunity to view the b b gun in addition to that the investigator showed the jury how the gun was operated and so there was the jury had some st hand opportunity to determine competent in substantial evidence as to whether they believe that this was a deadly weapon or not in our case the jury never heard any new that it was a b b gun  he used some kind of device and then he wasn't arrested until several days later let's say he just destroyed the device and it was never found could he still be prosecuted under the statute as long as it was eyewitness testimony that use a gun like that it would have to be competent in substantial evidence that whatever a weapon he used good able to inflict great bodily harm and we don't know that in this case because that was never part of the evidence but i guess my point i not necessary and crime if i'm wrong but i thought the florida law was that it's not necessary to actually introduce a physical weapon you can have eyewitness testimony like we have here that says you know i was threatened with this weapon it was a gun and i gave him all my money and i was really scared at that that that would be sufficient without actually having the you're correct your honor you do not have to have the weapon itself there just has to be competent it is the fact that when there was no proof offered by the government that it was a b b gun or a replica of a semiautomatic weapon was it incumbent upon m trial counsel d to make a motion saying the government's failed to prove it was a deadly weapon and the council failed to do that and so we're faced with the analysis of  whether that was deficient performance and whether it prejudice mister baker under at already right that somehow they tried the case is really not what we're here about that that is absolutely the correct analysis your honor in the prejudicial factor is he was sentenced to life which he could have been and if it had not been a deadly weapon he would have received a maximum of thirty years he's a young person so it made a difference thank you court my name is bonnie parrish i represent the believe the secretary florida department of corrections as this court has pointed out there was no evidence presented in this case that this was a b b gun nine whatsoever the victim testified that he pointed a gun at her demanded money she thought it was a real gun the deputy who was watching from the parking lot he believed it was a real gun there is nothing in this case what he was arrested three days later with a b b gun that doesn't mean that's the same gun that he used during this robbery there is nothing to show that he was charged with three what a firearm was what a deadly weapon was there there was no evidence to show that a b b gun was used in this case had to be attorney argued  jail way that the state didn't prove it was a deadly weapon motion would have been denied there was no evidence to support making such an argument the defendant testify he testified he was someplace else he didn't have a car the restaurant the restaurant was too far away to walk to he did not testify that he used a b b gun that could not hurt a fly no evidence was presented at trial that the weapon used in this claim by the district court judge was proper this parish i think you're playing a very dangerous game right now and i'll explain to you why i think that's the case this was charged very clearly as robbery with a deadly weapon rather than robbery with a firearm correct it was yes it was the information charged with a deadly weapon right that you know that that that is divisible both as a matter of florida and federal law on if you charge robbery with a firearm different than robbery with a deadly weapon other words that's a defined choice because they are mutually exclusive things under florida law correct  law i apologize i down i don't have that right now trust me when i test what i tell you that it's lots of dangerous things explicitly defined as other than a fire ok so a deadly weapon cannot be a firearm under florida law it's a deadly form of a weapon one that can cause death in this but it is not and it's why that they are chart why the statute as a category for deadly weapons and has a category for firearms right correct right ok so this was charges a deadly weapon the jury was instructed because i went back to the instructions that only a that it had to be a deadly weapon not as a fire and that's different from other and hansen's that were the jury was instructed on or they were instructed as an alternative for fire but let's go back to the jury instructions mean my recollection of the jury instructions is they were they were instructed on what a firearm was absolutely were they were given the definition of a firearm but with regard to this issue in other words the enhancement here is as you know what so so so here the jury was instructed if you find that the defendant carried a deadly weapon described in charge in the court in the charge in the course of committing the robbery and that deadly weapon described in charge was a deadly weapon you should find the defendant guilty of robbery with a deadly weapon as to that advancement the jury was not instructed with regard to a fire i'm trying to find them right now to look at it that is not my recollection not did i not but i'm disputing what you're saying is in the record to look at documentary fourteen dash four at page seventeen on c s yes but let's let's go in further the verdict for think it is if you are telling us that the only evidence was that this was a firearm and he was not charged as as having robbery with a firearm and a deadly weapon in florida  just assume i'm right for the moment a deadly weapon in florida cannot be a firearm then you have a problem don't you well i disagree with that your honor the issue in this case is did was raise his whether the trial counsel was ineffective for failing to move for judgment of acquittal on the basis that he failed to prove that it was a deadly weapon so if that's right i agree with you completely so let's go back to what the real issue here which is that the state as the as the post conviction court said the state attorney because he was found with a b b gun three days later just wasn't sure and so it is a matter of caution charged him with a deadly weapon as opposed to with a fire because they didn't have a firearm and they didn't know it was a fire and so they presented this is the jury as a deadly weapon case not a firearm case because as you know it's a st degree p p l one way or the other so so they presented their case they said gave the evidence there and the only question that we have and i'll go back i think judge martin said it exactly right at the end of the state's presentation at the end of mister vegas presentation which is the only question for us is whether under a deep deference trial counsel was ineffective for failing to move to a jail way on whether this was this this whatever he had whatever device yet was a deadly weapon or not and so i want your if frame that way if you can make your argument for me that would be very ok juror it was a question of fact for the jury it would not have been could not be resolved on a jail way which your best days in a b b gun sort of case what your best case back at pointing a gun at someone showing it to the person it has a situation where it's actually very sad situation an ex husband or a separated husband goes to the new home of this strange wife was now with another man he's angry he goes in you points a b b gun it actually is a b b gun there pointed at them threatens them and they believe that this this is a real gun and they're going to be killed and gets money and robs them and i think it's over that person is charged with just like here robbery with a deadly weapon and the court the and it's holding when the defendant's words or actions imply that a device is dangerous or deadly and the device is normally dangerous or deadly when used in an ordinary usual manner which would be the gun could be or would be but at the time of the offense it's not dangerous or deadly due to a condition that cannot be observed by the victim we conclude that a jury may find the device to be dangerous or deadly weapon in other words even if a death a b b gun which ordinary cleaved could be dangerous is not dangerous at that moment as long as the defendant's words or actions imply the devices dangerous or get the jury may find the device to be a dangerous or using that case if that's the the gun out pointed at the date down demanded money other people laid on the ground everybody was in fear when he came in with this weapon whether this weapon was a b b gun whatever it was he put everybody in fear that he was going to use that weapon and i look at this case as more of a prejudice prong what would have happened i mean i think your argument goes to what would have happened  made on this ground after the state's presentation and i think i think the motion would have been tonight because there was there was no other evidence than what the big dummy and the deputy testify to no other either either one both know makes no difference my question just went to the fact yet you continue to say well this was all the evidence they had but i think it's and i don't understand that argument because the burden is on the state to prove that it was a deadly weapon so an insufficien evidence doesn't seem to be an argument in your favor why i don't think the evidence was insufficient in this case but the the evidence was sufficient for it to become a jury question for the jury to decide whether he used a deadly of a semiautomatic pistol and then in the very next breath but there was sufficient evidence to to find a deadly weapon and i don't how is that consists well dad came out from the sentencing hearing the prosecutor made a statement about it being a b b gun and basically that they weren't pursuing the one thousand and twenty dollars life because they had there was no weapon dabs where that comes from is out of the at the sentencing sentencing hearing and the prosecutor that's what they put in their response the judge just i think copied and put it in there but that that's what it is it has nothing to do with the trial nothing  or even found guilty when that was when that was statement was made and we just talked about i thought this was really interesting the specific claims made in this case because it seems like one claim you could make if you t just whether they were to make this particular motion and i think that's correct it's very specific i will say you know i i can't tell you why they chose the defense that they chose but if you look at history eight fifty he continues to put in there that his defense was he didn't do it at sentencing he continued to insist that he didn't commit this robbery so you know that is my my guess is that's the reason why that's the defense they pursued rather than pursue mean that the state couldn't prove this was a deadly weapon there are no further questions i asked you a firm thank you a weapon had not been presented however in reading his pleadings it does appear that he brings up the fact that it was a that the b b gun argument should have been proof by the government who had the per year to get to prove that it was a deadly weapon that's that's correct your honor in that that evidence has to be it has to be competent it has to be substantial and there may be evidence in the trial record that there that there was a weapon because we have the the victim talking about a weapon and we have the police officer saying he thought he saw a what or that he saw a weapon even though he was a distance so well a but there was no evidence there isn't here to be a weapon that was the and operable if that is sufficient evidence if we find that that was the state of our law at the time that this trial then was there sufficient evidence given the testimony o with regard to the waitress your honor i don't recall any testimony where it came out that the weapon could inflict great bodily harm i know she was frightened but beyond that i mean it could have been any type of weapon it could have been operable she was she was frightened the officer was a little sketchier in terms of saying that as judge martin said that he thought he saw a weapon up those two things do not appear to be substantial competent evidence that it was a deadly weapon that could inflict great bodily look at the evidence that the state presented and we need to look at florida law and we need to decide whether there was a substantial likelihood granted a motion for judgment of acquittal is that the ri taint sufficient evidence to establish that it was a b b gun so that when the d j o way was presented it would have been successful