DUDE EMSHWILLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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LEHAN, Judge.
For the following reasons we disagree with all three of appellant’s contentions.
A BB gun is a deadly weapon within the meaning of section 784.045, Florida Statutes (1981). See Depasquale v. State, 438 So. 2d 159 (Fla. 2d DCA 1983).
Under the particular facts shown by the record in this case, there was no error in the trial court’s denial of defendant’s motion for mistrial based upon a witness’s general reference to other charges against defendant, about which the witness knew nothing. See Pait v. State, 112 So. 2d 380, 385-86 (Fla.1959). The testimony was in direct response to defense counsel’s questions on cross-examination.
The question of whether the trial court properly retained jurisdiction for portions of the concurrent sentences was not raised below. See Brown v. State, 428 So. 2d 369 (Fla. 5th DCA 1983).
AFFIRMED.
OTT, C.J., and BOARDMAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Dale v. State, 703 So. 2d 1045 (Fla. 1997)…BB gun is a deadly weapon is a jury question). See also Lynn v. State, 567 So. 2d 1043 (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…
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Duba v. State, 446 So. 2d 1167 (Fla. 5th DCA 1984)…ily harm only by expelling a projectile was, at the relevant 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 assaul…
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Mitchell v. State, 698 So. 2d 555 (Fla. 2d DCA 1997)…perable, but a BB gun is typically loaded when used in “the ordinary manner.” It is not entirely clear whether Depasquale held that all BB guns are deadly as a matter of law or whether deadliness was a factual question. See also Emshwiller v. State, 443 So. 2d 488 (Fla. 2d DCA 1984). In Duba v. State, 446 So. 2d 1167 (Fla. 5th DCA 1984), the Fifth District expressly held that whether an air pistol was a deadly weapon for purposes of aggravated assault was an issue for the jury. In that case the trial court h…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Florida Appellate Rules, 112 So. 2d 380 (Fla. 1959)
- N.U., Inc. v. T & R Seafood, Inc., 428 So. 2d 369 (Fla. 3d DCA 1983)
- Depasquale v. State, 438 So. 2d 159 (Fla. 2d DCA 1983)