CURTIS DALE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Curtis Dale was convicted of armed robbery with a deadly weapon for using a BB gun during a robbery. The appellate court affirmed the conviction while certifying to the Florida Supreme Court a question about whether a jury can properly find an unloaded BB gun to be a deadly weapon.
The court affirmed the conviction, holding that whether a BB gun constitutes a deadly weapon is a jury question that depends on the manner in which it is used. The trial court properly submitted this issue to the jury under the correct legal standard.
[1] Whether an air or gas operated gun constitutes a deadly weapon depends on the manner in which it is used, and its classification as such is a question for the jury.
[2] A jury may permissibly find a BB gun to be a deadly weapon in an armed robbery prosecution if the evidence shows it was used or threatened to be used in a way likely to p…
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Join FLexlaw to unlock all legal intelligence“whether ... an air or gas operated gun is a deadly weapon depends on the manner in which it is used, and whether it will be classified as a deadly weapon is a question for the jury”
Establishes the legal standard that jury determination of whether a BB gun is a deadly weapon depends on manner of use
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuring a robbery of a Flowers Bakery, employee Ina Bruton testified that Dale demanded money while saying "I got a gun" and pulled back his shirt to d…
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PER CURIAM.
Curtis Dale appeals his conviction for armed robbery with a deadly weapon in violation of section 812.13(2)(a), Florida Statutes (1993), arguing that under the facts of the instant ease the evidence was legally insufficient to establish that Dale’s use of a BB gun met the statutory definition of a deadly weapon. Because the issue of whether the BB gun used here was a deadly weapon was properly treated as a jury question, we affirm and certify a question of great public importance.
Below, Flowers Bakery employee Ina Bru-ton, the victim, testified that Dale demanded money from her saying “I got a gun,” while at the same time, he pulled his shirt back so she could see a part of something that was black, which she assumed was a gun. Later, Dale’s clothes, a BB gun, and a Flowers bag were recovered at the same site. Although the gun was found without BBs or a CO2 cartridge, the state introduced testimony that the BB gun was operational and could be spring-loaded with BBs.1 The trial court charged the jury that the state was required to prove Dale used a “deadly weapon,” which was defined as a weapon used or threatened to be used in a way likely to produce death or great bodily harm. The jury returned a verdict finding Dale guilty as charged.
In Gooch v. State, 652 So. 2d 1189, 1191 (Fla. 1st DCA), rev. denied, 659 So. 2d 1086 (Fla.1995), this court ruled that “whether ... an air or gas operated gun is a deadly weapon depends on the manner in which it is used, and whether it will be classified as a deadly weapon is a question for the jury.” The trial court here correctly presented this issue to the jury. Gooch, supra; Lynn v. State, 567 So. 2d 1043 (Fla. 5th DCA 1990).
We are aware, however, of some confusion in the ease law. Compare, Depasquale v. State, 438 So. 2d 159 (Fla. 2d DCA 1983) and Bass v. State, 232 So. 2d 25 (Fla. 1st DCA 1970) with Duba v. State, 446 So. 2d 1167 (Fla. 5th DCA 1984) and M.R.R. v. State, 411 So. 2d 983 (Fla. 3d DCA 1982). Accordingly, we affirm, but certify the following question to our supreme court as a matter of great public importance.
CAN A JURY PERMISSIBLY FIND A BB GUN TO BE A DEADLY WEAPON AND A DEFENDANT GUILTY OF ARMED ROBBERY WHEN THE EVIDENCE SHOWS THAT THE BB GUN WAS FOUND UNLOADED, WITHOUT A C02 CARTRIDGE, AND NO EVIDENCE WAS PRESENTED THAT THE BB GUN WAS LOADED AT THE TIME OF THE OFFENSE, WHERE THE DEFENDANT STATED SIMPLY “I HAVE A GUN” DURING THE COMMISSION OF THE ROBBERY?
AFFIRMED, question certified.
JOANOS, BENTON and VAN NORTWICK, JJ., concur. . This evidence distinguishes the instant case from Brooks v. State, 605 So. 2d 874 (Fla. 1st DCA 1992), quashed on other grounds, 630 So. 2d 527 (Fla.1993), wherein the state did not prove that the starter pistol had a capability to injure. In Brooks, the appellant's conviction for armed robbery was reduced to simple robbery since the starter pistol was not otherwise used in a manner which would or could cause death or serious bodily harm (e.g., it was not used as a bludgeon).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dale v. State, 703 So. 2d 1045 (Fla. 1997)…SHAW, Justice. We have for review Dale v. State, 669 So. 2d 1112 (Fla. 1st DCA 1996), wherein the district court certified: Can a jury permissibly find a BB gun to be a deadly weapon and a defendant guilty of armed robbery when the evidence shows that the BB gun was found unloaded, without a C02 cartridge, and n…1 / 2
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Mitchell v. State, 698 So. 2d 555 (Fla. 2d DCA 1997)…efendant was apprehended shortly after a robbery, and an unloaded air-powered pump BB gun was found in his car. The court recognized that the deadliness of the weapon was a factual question to be decided by the jury. Most recently, in Dale v. State, 669 So. 2d 1112 (Fla. 1st DCA 1996), the First District reaffirmed Gooch and certified a question to the supreme court, which has granted review. Dale v. State, 678 So. 2d 337 (Fla.1996). In Dale, there was evidence that the BB gun was operational. The case law on…
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Tillman v. State, 695 So. 2d 767 (Fla. 1st DCA 1997)…AM. Byron Tillman appeals from a conviction for robbery with a weapon (a BB gun). As to the appellant’s issue of whether as a matter of law the evidence was sufficient to convict him for carrying a weapon, we affirm in reliance upon Dale v. State, 669 So. 2d 1112 (Fla. 1st DCA), rev. granted, 678 So. 2d 337 (Fla.1996). AFFIRMED. ALLEN, WEBSTER and MICKLE, JJ., concur.…
Authorities Cited
- Brooks v. State, 630 So. 2d 527 (Fla. 1993)
- Bass v. State, 232 So. 2d 25 (Fla. 1st DCA 1970)
- Duba v. State, 446 So. 2d 1167 (Fla. 5th DCA 1984)
- Depasquale v. State, 438 So. 2d 159 (Fla. 2d DCA 1983)
- 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)
- Brooks v. State, 605 So. 2d 874 (Fla. 1st DCA 1992)
- Lynn v. State, 567 So. 2d 1043 (Fla. 5th DCA 1990)
- Gooch v. State, 652 So. 2d 1189 (Fla. 1st DCA 1995)