J.W., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A juvenile appeals his adjudication of delinquency for aggravated assault with a deadly weapon based on pointing a cigarette lighter resembling a gun at victims. The court reversed the aggravated assault convictions, holding that a non-operational cigarette lighter cannot constitute a deadly weapon under Florida law because it is neither designed nor used in a manner likely to cause great bodily harm or death.
A cigarette lighter cannot be considered a deadly weapon under Florida law because it is not an instrument that, when used in its ordinary design, is likely to cause death or great bodily harm, and there was no evidence it was used in a manner likely to cause great bodily harm. Accordingly, the aggravated assault convictions were reversed and remanded for reduction to simple assault.
[1] A cigarette lighter, even if made to resemble a gun, is not a deadly weapon under the aggravated assault statute unless its use or threatened use is likely to cause death…
[2] An instrument is considered a deadly weapon if, in the ordinary manner of its design, it will or is likely to cause death or great bodily harm, or if it is likely to caus…
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Join FLexlaw to unlock all legal intelligence“A deadly weapon is: any instrument which, when used in the ordinary manner contemplated by its design, will or is likely to cause death or great bodily harm; or any instrument likely to cause great bodily harm because of the way it is used during a crime.”
Establishes the statutory definition of deadly weapon that controls the analysis
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJ.W., a juvenile, pointed a cigarette lighter that resembled a gun at two victims' faces. The victims believed at the time that the lighter was an act…
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WHATLEY, Judge.
J.W., a juvenile, appeals his adjudications of delinquency for two counts of aggravated assault with a deadly weapon, battery, disorderly conduct, and petit theft. He argues that the trial court erred in denying his motion for judgment of acquittal as to the charges of aggravated assault with a deadly weapon because there was insufficient evidence of a deadly weapon. J.W. was accused of pointing a cigarette lighter, which looked like a gun, in the victims’ faces. At the time of the offenses, both victims believed that the cigarette lighter was a gun. We conclude that the cigarette lighter could not be considered a deadly weapon pursuant to the aggravated battery statute and reverse. See § 784.021, Fla. Stat. (1999).
“A deadly weapon is: any instrument which, when used in the ordinary manner contemplated by its design, will or is likely to cause death or great bodily harm; or any instrument likely to cause great bodily harm because of the way it is used during a crime.” C.A.C. v. State, 771 So. 2d 1261, 1262 (Fla. 2d DCA 2000). McCray v. State, 358 So. 2d 615 (Fla. 1st DCA 1978), is similar to the case at bar. In McCray, the appellant was convicted of robbery while carrying a weapon, which was a cigarette lighter shaped like a gun. The First District held that the lighter could only be considered a deadly weapon if, by its use or threatened use, great bodily harm or death is likely to occur, as might be the case if it were used to hit someone. Id. at 617. The court concluded that since the lighter was not used in a manner likely to cause great bodily harm, it could not be considered a deadly weapon. Id.
In another similar case, M.M. v. State, 391 So. 2d 366, 368-369 (Fla. 1st DCA 1980), the First District held that the appellant was improperly convicted of aggravated assault where he pointed a starter pistol at the victim, which pistol was inoperable and could only be made operable by an experienced person. The First District concluded that the pistol could not be considered a deadly weapon, because it was not likely to cause great bodily harm or death in the manner in which it was designed, and the pistol was not likely to cause great bodily harm considering the nature in which it was used during the crime. Id. at 368.
In the present case, the lighter was not an instrument that, when used in the ordinary manner contemplated by its design, was likely to cause great bodily harm or death.1 Further, there was no evidence that the lighter was used in a manner likely to cause great bodily harm. The State’s witnesses testified that J.W. pointed the lighter at them. Compare Mitchell v. State, 698 So. 2d 555, 558 (Fla. 2d DCA 1997) (holding that even if BB pistol had been a toy gun, it could be considered a deadly weapon because the appellant used the metal object to strike the victim in the head). Because J.W.’s lighter cannot be considered a deadly weapon, we reverse his adjudications of delinquency for aggravated assault and remand for the trial court to reduce the offenses to misdemean-or assault. J.W.’s other adjudications of delinquency are affirmed.
On remand, the trial court should enter separate orders of disposition for each of J.W.’s offenses. K.D. v. State, 779 So. 2d 468 (Fla. 2d DCA 2000) (holding that when multiple offenses constitute the basis for a delinquency adjudication, the trial court must enter a separate disposition order for each offense). Affirmed in part, reversed in part, and remanded with directions.
NORTHCUTT and SILBERMAN, JJ., Concur. . There was testimony that the lighter was not even operational.
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Citator
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K.C. v. State, 49 So. 3d 841 (Fla. 4th DCA 2010)…ade a comment at the hearing concerning the BB gun’s considerable weight and observed that it might be used to pistol-whip someone. An object can qualify as a deadly weapon based upon the manner in which it is used during a crime. See J.W. v. State, 807 So. 2d 148, 149 (Fla. 2d DCA 2002). Thus, when used as a bludgeon, a BB gun may qualify as a “deadly weapon.” See Mitchell v. State, 698 So. 2d 555 (Fla. 2d DCA) (holding BB gun used as a bludgeon that creates a gash on victim’s head could be found to be a dea…
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D.B.B. v. State, 997 So. 2d 484 (Fla. 2d DCA 2008)…on is an item which, when used in the ordinary manner contemplated by its design, will or is likely to cause death or great bodily harm; or any instrument likely to cause great bodily harm because of the way it is used during a crime. J.W. v. State, 807 So. 2d 148, 149 (Fla. 2d DCA 2002). Whether an item is a deadly weapon is a factual question to be determined under the circumstances, taking into consideration its size, shape, material, and the manner in which it was used or was capable of being used. Simmon…
Authorities Cited
- Eldridge A. McCRAY v. State, 358 So. 2d 615 (Fla. 1st DCA 1978)
- Daniels v. State, 698 So. 2d 555 (Fla. 1st DCA 1997)
- Mitchell v. State, 698 So. 2d 555 (Fla. 2d DCA 1997)
- C.A.C. v. State, 771 So. 2d 1261 (Fla. 2d DCA 2000)
- M. M. v. State, 391 So. 2d 366 (Fla. 1st DCA 1980)
- K.D. v. State, 779 So. 2d 468 (Fla. 2d DCA 2000)