T.H., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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T.H., a minor, was adjudicated delinquent for possessing a BB gun and paint ball gun on school property. The appellate court affirmed the adjudication but reversed the disposition order, finding the trial court failed to order a mandatory predisposition report before committing the child to residential placement.
The BB gun qualifies as a weapon under section 790.115(2)(b), Florida Statutes, because it has the capacity to inflict great bodily harm. The trial court erred by failing to order a mandatory predisposition report prior to ordering residential commitment, and oral testimony from DJJ representatives cannot substitute for the required written report.
[1] A BB gun qualifies as a deadly weapon under Florida law if it has the capacity to inflict great bodily harm.
[2] Possession of a weapon, including a BB gun, on school grounds is prohibited by statute.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a BB gun has the capacity to inflict great bodily harm and, therefore, qualifies as a deadly weapon”
Establishes the legal standard for whether a BB gun constitutes a weapon under Florida law
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Join FLexlaw to unlock all legal intelligenceT.H. was found in possession of a BB gun and a paint ball gun in his book-bag on school property. Officer Ortiz testified that a BB gun shot can damag…
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STEVENSON, J.
T.H., a minor, appeals his adjudication and disposition for possession of a weapon on school property. We affirm the adjudication of delinquency, but reverse the disposition.
T.H. argues that neither the BB gun nor the paint ball gun found in his book-bag meet the statutory definition of a “firearm” or “weapon.” Both this court and the Second District have previously held that a BB gun has the capacity to inflict great bodily harm and, therefore, qualifies as a deadly weapon. See In re W.M., 491 So. 2d 1263 (Fla. 4th DCA 1986); Depasquale v. State, 438 So. 2d 159 (Fla. 2d DCA 1983). Further, here, Officer Ortiz testified that a shot from a BB gun can damage an eye and, if shot at close range, can penetrate the skin. The trial court did not err in finding that the BB gun was a weapon within the meaning of section 790.115(2)(b), Florida Statutes (2002), which prohibits the possession of such objects on school grounds.
T.H. also argues that the trial court erred in failing to order a predisposition report prior to committing him to a level six residential facility. We agree that this was error. Section 985.229, Florida Statutes (2002), requires that the court order and consider a predisposition report if residential commitment is anticipated or rec ommended. See M.B. v. State, 720 So. 2d 321 (Fla. 4th DCA 1998). The State invites this court to affirm the level six commitment, arguing that although there was no predisposition report, the Department of Juvenile Justice (DJJ) performed a multi-disciplinary staffing and representatives from the DJJ and the Department of Children and Families orally advised the court about the outcome of the staffing. In view of the mandatory language of the statute, such testimony, although properly considered, cannot serve as a substitute for the predisposition report in this case. See F.W. v. State, 777 So. 2d 1100 (Fla. 2d DCA 2001). Here, the public defender represented to the court that she had no notice of the staffing, and there was nothing in the record to show that her office had been provided notice.
Accordingly, the adjudication of delinquency is affirmed. The disposition order is reversed and this case remanded with directions that the trial court either (1) obtain an on-the-record waiver of a predisposition report or (2) order and consider a predisposition report prior to final disposition.
AFFIRMED in part, REVERSED in part, and REMANDED.
POLEN and SHAHOOD, JJ., concur.
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K.C. v. State, 49 So. 3d 841 (Fla. 4th DCA 2010)…to evidence, affording the jury the opportunity to examine it for themselves, and the State presented testimony from police witnesses that the BB gun was in working order and which demonstrated, in detail, its operation. Id.; see also T.H. v. State, 859 So. 2d 549, 549 (Fla. 4th DCA 2003) (evidence sufficient to establish BB gun was a “deadly weapon,” where police officer testified BB gun can damage the eye and, if fired at close range, penetrate the skin). Where a BB gun is not loaded, and no additional evi…
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O.L. v. State, 929 So. 2d 1133 (Fla. 4th DCA 2006)…on hearing. Section 985.229(1), Florida Statutes (2004), requires that the court order and consider a predisposition report if residential commitment is “anticipated or recommended by an officer of the court or by the department.” See T.H. v. State, 859 So. 2d 549 (Fla. 4th DCA 2003). We also note that the disposition order does not delineate the disposition for each offense and fails to account for credit for time served in a juvenile detention center. See J.W. v. State, 879 So. 2d 680, 682 (Fla. 4th DCA 200…
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J.T. v. State, 47 So. 3d 934 (Fla. 4th DCA 2010)…hurt a fly.” In contrast, in this case the BB gun was admitted into evidence. The investigating officer described the gun and explained to the court how it worked. He testified that a shot from the gun could put someone’s eye out. In T.H. v. State, 859 So. 2d 549 (Fla. 4th DCA 2003), we held that evidence that the gun could damage an eye was sufficient to prove that the BB gun was a weapon for purposes of section 790.115(2). Moreover, J.T. himself admitted to the officer that he had fired the gun. Therefore,…
Authorities Cited
- Depasquale v. State, 438 So. 2d 159 (Fla. 2d DCA 1983)
- In the Interest of W.M., 491 So. 2d 1263 (Fla. 4th DCA 1986)
- F.W. v. State, 777 So. 2d 1100 (Fla. 2d DCA 2001)
- M.B. v. State, 720 So. 2d 321 (Fla. 4th DCA 1998)
- Laroche v. Briggs, 720 So. 2d 321 (Fla. 4th DCA 1998)