DARRYL WILTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Wilton was convicted of throwing a deadly missile into an occupied vehicle after throwing a grapefruit that shattered a tanker truck's windshield. The court upheld the conviction, finding that a grapefruit thrown with sufficient force to break a windshield could constitute a deadly missile under Florida law, but reversed the assessment of attorney's fees imposed without notice and hearing.
Throwing a grapefruit with sufficient force to break the windshield of a moving occupied truck constitutes throwing a deadly missile into an occupied vehicle because a jury could properly conclude that such an act 'would produce death or great bodily harm.' However, the trial court erred in assessing attorney's fees and costs without notice and hearing.
[1] A grapefruit thrown with sufficient force to shatter the windshield of a moving truck can constitute a missile under the statute prohibiting throwing deadly missiles into…
[2] The statute prohibiting throwing deadly missiles into occupied vehicles requires proof that the missile, if thrown with sufficient force, would produce death or great bod…
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Join FLexlaw to unlock all legal intelligence“a jury could properly conclude that throwing a grapefruit with sufficient force to break the windshield of a moving truck was an act which 'would produce death or great bodily harm.'”
Establishes that the grapefruit, when thrown with force sufficient to break a windshield, qualifies as a deadly missile under the statute
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Join FLexlaw to unlock all legal intelligenceAppellant threw a grapefruit at a passing tanker truck, shattering its windshield and superficially cutting the driver. The grapefruit was thrown with…
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GRIMES, Acting Chief Judge.
The significant point on this appeal is whether the throwing of a grapefruit at a passing tanker truck, thereby shattering its windshield and superficially cutting the driver, constitutes the crime of throwing a deadly missile into an occupied vehicle.
The statute under which appellant was charged reads as follows:
790.19 Shooting into or throwing deadly missiles into dwellings, public or private buildings, occupied or not occupied; vessels, aircraft, buses, railroad cars, streetcars, or other vehicles. —Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied, or public or private bus or any train, locomotive, railway ear, caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is being used or occupied by any person, or any boat, vessel, ship, or barge lying in or plying the waters of this state, or aircraft flying through the airspace of this state shall be guilty of a felony of the second degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.
In J.W.B. v. State, 419 So. 2d 407 (Fla. 2d DCA 1982), this court held that the mere throwing of an orange at a school bus without proof of either striking the bus or any person was insufficient to constitute a crime. Yet, we pointed out that under the proper circumstances, an orange could be a missile under section 790.19. Here, a jury could properly conclude that throwing a grapefruit with sufficient force to break the windshield of a moving truck was an act which “would produce death or great bodily harm.” Therefore, the court properly denied appellant’s motion to dismiss.
Appellant is correct, however, that the court erred in assessing attorney’s fees and costs against him without notice and hearing. Drumm v. State, 432 So. 2d 765 (Fla. 2d DCA 1983).
We affirm the conviction but strike the assessment of attorney’s fees and costs without prejudice to the state in seeking a new award pursuant to section 27.56(7), Florida Statutes (1983).
OTT and LEHAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Carter v. State, 469 So. 2d 775 (Fla. 1st DCA 1984)…. For the purpose of the crime charged in this case, it was the nature and capability of the missile as disclosed by its explosive or fire-producing effect, rather than its exact ingredients which were material, (emphasis added) In Wilton v. State, 455 So. 2d 1142 (Fla. 2d DCA 1984), the object, a grapefruit, was innocuous enough but was thrown under circumstances which rendered it capable of causing death or great bodily harm, and the court held: The significant point on this appeal is whether the throwing…
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A.H. v. State, 577 So. 2d 699 (Fla. 3d DCA 1991)…ant was standing. Compare EJ. v. State, 554 So. 2d 578, 580 (Fla. 3d DCA 1989) (Cope, J., concurring in part and dissenting in part); Carter v. State, 469 So. 2d 775, 777 (Fla. 1st DCA 1984), rev. denied, 480 So. 2d 1293 (Fla.1985); Wilton v. State, 455 So. 2d 1142 (Fla. 2d DCA 1984). Affirmed.…
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H.H. v. State, 773 So. 2d 122 (Fla. 4th DCA 2000)…9 So. 2d 407 (Fla. 2d DCA 1982)(holding that it was error for the trial judge to find that the throwing of an orange at a school bus, without proof of either striking the bus or any person, was a crime under section 790.19); compare Wilton v. State, 455 So. 2d 1142 (Fla. 2d DCA 1984)(holding that the throwing of a grapefruit at a passing tanker truck, thereby shattering its windshield and superficially cutting the driver, constituted the crime of throwing a deadly missile into an occupied vehicle). Accordingl…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Drumm v. State, 432 So. 2d 765 (Fla. 2d DCA 1983)
- J.W.B. v. State, 419 So. 2d 407 (Fla. 2d DCA 1982)