JOSEPH DEPASQUALE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Depasquale appeals his first degree armed robbery conviction, arguing that a BB gun does not qualify as a "weapon" under Florida law. The court affirms the conviction, holding that a BB gun constitutes a deadly weapon capable of inflicting great bodily harm.
A BB gun constitutes a deadly weapon under Florida law because it is capable of inflicting great bodily harm when used in the ordinary manner contemplated by its design. Therefore, Depasquale's use of a BB gun during the robbery constituted armed robbery in the first degree.
[1] Whether an object not ordinarily considered a weapon was used in a manner likely to cause death or great bodily harm is a question of fact for jury determination.
[2] A weapon is a deadly weapon if it is used or threatened to be used in a way likely to produce death or great bodily harm.
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Join FLexlaw to unlock all legal intelligence“any instrument that, when used in the ordinary manner contemplated by its design and construction, will or is likely to cause death or great bodily harm”
The court's adopted definition of 'deadly weapon' used to interpret the statutory language and determine whether a BB gun qualifies as a weapon.
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Join FLexlaw to unlock all legal intelligenceDepasquale robbed a Lum's Restaurant while possessing a BB gun. The state introduced evidence that he used the BB gun during the commission of the rob…
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RYDER, Judge.
Joseph Depasquale seeks review of his judgment and sentence for the first degree felony of armed robbery. Depasquale contends he was improperly convicted of first degree armed robbery, alleging the state failed to establish that he used a weapon during the commission of the crime. We affirm.
The statute under which appellant was charged, section 812.13(2)(b), Florida Statutes (1981), provides that the use of a weapon during the commission of a robbery constitutes armed robbery in the first degree punishable by imprisonment not to exceed thirty years. At trial, the state introduced evidence that appellant used a BB gun in the course of robbing a Lum’s Restaurant. Appellant argues that the fact that he possessed a BB gun during the robbery failed to satisfy the state’s burden of proving that he used a “weapon.”
A weapon is defined under section 790.-001(13), Florida Statutes (1981), as any “dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or any other deadly weapon except a firearm or a common pocket knife.” See also section 790.001(6), Florida Statutes (1981). Appellant maintains that because section 790.001(13) fails to include a BB gun among the enumerated items listed as weapons, a BB gun is not a weapon within the context of section 812.13(2)(b), Florida Statutes (1981).
We reject Depasquale’s interpretation of section 790.001(13). As noted above, the text of section 790.001(13) concludes in part with the language “... or any other deadly weapon.. .. ” Generally, the term deadly weapon is interpreted as “any instrument that, when used in the ordinary manner contemplated by its design and construction, will or is likely to cause death or great bodily harm.” 56 Am.Jur. Weapons and Firearms § 2 at 991 (emphasis added); Smith v. Nussman, 156 So. 2d 680 (Fla. 3d DCA 1963); see also Standard Jury Instruction on Robbery; McCray v. State, 358 So. 2d 615 (Fla. 1st DCA 1978).
A BB gun is an air or gas operated gun designed to expel lead or other metallic shot. Accordingly, a BB gun possesses the capability of inflicting great bodily harm; a capability that is heightened if a BB gun is used in the manner as the one used by appellant. We find, therefore, that a BB gun constitutes a weapon as contemplated by section 790.001(13), Florida Statutes (1981), and that appellant’s use of the BB gun during the commission of the robbery constituted armed robbery in the first degree. Therefore, both the judgment and sentence entered herein are AFFIRMED.
OTT, C.J., and CAMPBELL, J., concur.
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Dale v. State, 703 So. 2d 1045 (Fla. 1997)…3 (Fla. 5th DCA 1990) (a pellet pistol can be a deadly weapon); In re W.M., 491 So. 2d 1263 (Fla. 4th DCA 1986) (a BB gun is a deadly weapon); Emshwiller v. State, 443 So. 2d 488 (Fla. 2d DCA 1984) (a BB gun is a deadly weapon); Depasquale v. State, 438 So. 2d 159 (Fla. 2d DCA 1983) (a BB gun can be a deadly weapon). . Cf. Bentley v. State, 501 So. 2d 600, 602 (Fla.1987) ("Whether the gun in [the defendant's] possession was loaded or whether [the defendant] had available ammunition is irrelevant.”).…
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Duba v. State, 446 So. 2d 1167 (Fla. 5th DCA 1984)…vant time, capable in fact of doing so. See Harpham v. State, 435 So. 2d 375 (Fla. 5th DCA 1983), as limited by Ridley v. State, 441 So. 2d 188 (Fla. 5th DCA 1983). But see Emshwiller v. State, 443 So. 2d 488 (Fla. 2d DCA 1984); Depasquale v. State, 438 So. 2d 159 (Fla. 2d DCA 1983). The conviction of attempted kidnapping is affirmed and the conviction for aggravated assault is reversed and the cause is remanded for a new trial1 on the aggravated assault charge. AFFIRMED in part; REVERSED in part. DAUKSCH…
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Mitchell v. State, 698 So. 2d 555 (Fla. 2d DCA 1997)…self-defense and cause great bodily harm to an innocent bystander. IX. BB GUNS AS WEAPONS Case law considering the status of BB guns tends to make the deadliness or dangerousness of a BB gun a factual question for the jury. In Depasquale v. State, 438 So. 2d 159 (Fla. 2d DCA 1983), this court held that a BB gun was a deadly weapon when used in a robbery. We relied on a common definition of deadly weapon: “any instrument that, when used in the ordinary manner contemplated by its design and construction, will…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Eldridge A. McCRAY v. State, 358 So. 2d 615 (Fla. 1st DCA 1978)
- Smith v. Nussman, 156 So. 2d 680 (Fla. 3d DCA 1963)