I.O., A JUVENILE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A juvenile was adjudicated delinquent for aggravated assault by use of a shotgun, but the trial court explicitly found insufficient evidence to prove the instrument was actually a deadly weapon. The appellate court reversed, holding that Florida law applies an objective test to determine whether an instrument is a deadly weapon, and subjective belief by the victim cannot substitute for objective proof.
No. Florida law applies an objective test to determine whether an instrument is a deadly weapon for purposes of aggravated assault, focusing on the nature and actual use of the instrument rather than the subjective fear of the victim or intent of the perpetrator. Where evidence does not objectively support that the instrument was a deadly weapon, a conviction or adjudication for aggravated assault cannot stand.
[1] Fear on the part of the victim is not a necessary element of the criminal offense of assault or aggravated assault.
[2] The definition of criminal assault focuses on the perpetrator's intent and ability to commit a violent injury, not the victim's subjective realization of fear.
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Join FLexlaw to unlock all legal intelligence“Where the instrument used is not a firearm, Florida courts apply an objective test and look to the nature and actual use of the instrument and not to the subjective fear of the victim or intent of the perpetrator in determining whether the instrument is a deadly weapon”
Establishes the controlling legal standard: objective test, not subjective belief, determines if an instrument is a deadly weapon
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Join FLexlaw to unlock all legal intelligenceThe juvenile I.O. was charged with aggravated assault using a shotgun. The victim, an Air Force veteran with firearms expertise, testified the weapon …
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FERGUSON, Judge.
Appellant, a juvenile, was adjudicated delinquent for aggravated assault by use of a shotgun. By this appeal he contends that the court erred in applying a subjective test to find that the instrument used was a deadly weapon where objective proof was lacking. We agree and reverse.
The testimony of the victim, who had twenty-six years military service with the United States Air Force, had an “expert” rifle rating, and was at one time a member of a “Scattergun” team, was that the weapon used by I. 0. was not a toy gun, but a real shotgun. I. O. and a companion juvenile testified that the instrument in their possession was not a real shotgun but a lightweight toy replica which had been examined by a police officer in the neighborhood earlier that same day.
After the evidence was presented and counsel had concluded their arguments, the court made oral findings of fact and conclusions of law. The pertinent parts are found at page 38 of the record:
... I cannot find, beyond, and to the exclusion of any reasonable doubt that this was, in fact, a deadly weapon ... I would be tending to find, however, that the victim reasonably believed it to be a deadly weapon ... My understanding of the law is, that it is the same thing as a deadly weapon, if the victim reasonably believed it to be such. But, if I’m in error on the Law on the subject, I would most certainly not find them guilty of an aggravated assault, simply of a simple assault, if I find guilt at all....
The trial court’s clearly stated findings of fact and conclusion of law has simplified this review. Also in all fairness, the state of the law — whether the courts of this state apply the objective test or the subjective test for the purpose of determining a deadly weapon — has been unsettled until recently-
Where the instrument used is not a firearm, Florida courts apply an objective test and look to the nature and actual use of the instrument and not to the subjective fear of the victim or intent of the perpetrator in determining whether the instrument is a deadly weapon for purpose of the aggravated assault statute, Section 784.-021(l)(a), Florida Statutes (1979). M. R. R. v. State, 411 So. 2d 983 (Fla.3d DCA 1982). It is the nature of the weapon which characterizes an assault as aggravated. Goswick v. State, 143 So. 2d 817 (Fla.1962). Where the evidence does not support a finding that the instrument used was a deadly weapon, the trial court should grant a motion for judgment of acquittal as to the aggravated nature of the assault. M. M. v. State, 391 So. 2d 366 (Fla. 1st DCA 1980) (Docket No. 60,135, review denied 12/21/81).
The trial court having found the evidence insufficient to establish beyond a reasonable doubt a deadly weapon was used could not, as a matter of law, enter an adjudication for aggravated assault.
We reverse the adjudication of delinquency for aggravated assault and remand with directions that the court enter an adjudication for simple assault.
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Mitchell v. State, 698 So. 2d 555 (Fla. 2d DCA 1997)…because the state failed to “prove that the starter pistol had a capability to injure.” The pistol was used like a gun but “would or could [not] cause death or inflict serious bodily harm.” Id. at 875. These cases are consistent with I.O. v. State, 412 So. 2d 42 (Fla. 3d DCA 1982), which held that a toy shotgun was not a deadly weapon, even though the victim of an aggravated assault had extensive weapons training and believed the toy gun was real. That case announced an objective test, which examined the na…
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In the Interest of T.T. v. State, 459 So. 2d 471 (Fla. 1st DCA 1984)…he second victim, appellant stopped, turned, pointed the object toward the victim and shouted, “Stop or I’ll shoot.” Appellant argues that the trial court erroneously used a subjective test to determine that a firearm was used, citing I.O. v. State, 412 So. 2d 42 (Fla. 3rd DCA 1982) [Reasonable belief of victim that weapon was a real gun erroneously used to find aggravated assault] and McCray v. State, 358 So. 2d 615 (Fla. 1st DCA 1978) [Cigarette lighter shaped like a gun, with no evidence that death or gre…
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Watson v. State, 437 So. 2d 702 (Fla. 4th DCA 1983)…either because it was a firearm as statutorily defined and therefore a deadly weapon per se, or because it was in fact used as a deadly weapon, the finding that the starter gun was a deadly weapon could not stand. Id. at 985. Accord, I.O. v. State, 412 So. 2d 42 (Fla. 3d DCA 1982). See also M.M. v. State, 391 So. 2d 366 (Fla. 1st DCA 1980), where the court found that a starter gun with a warped barrel was not a “firearm” under the statute because there was no evidence that the pistol could be readily conver…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Goswick v. State, 143 So. 2d 817 (Fla. 1962)
- M. M. v. State, 391 So. 2d 366 (Fla. 1st DCA 1980)
- Goodwill Indus. OF S. Fla., Inc. v. Ne. Fire Ins. Co. of Pa., 411 So. 2d 983 (Fla. 3d DCA 1982)
- M.R.R. v. State, 411 So. 2d 983 (Fla. 3d DCA 1982)