E.S., A JUVENILE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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E.S., a juvenile, was adjudicated delinquent for carrying a concealed BB gun in violation of Florida law. The appellate court reversed the conviction, holding that the evidence was insufficient to establish that the BB gun was a "deadly weapon" as required by the statute.
The court held that the evidence was insufficient to establish that the BB gun was a deadly weapon because there was no testimony regarding the gun's operation, no cartridge was found in it, and it could not discharge pellets. The trial court erred in denying the motion for judgment of acquittal and in finding E.S. delinquent.
[1] A weapon is considered "deadly" if it is likely to produce death or great bodily injury.
[2] Whether a weapon is "deadly" is a factual question for the trier of fact, provided sufficient evidence supports such a determination.
Previewing 2 of 4 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 "deadly weapon" has generally been defined to be one likely to produce death or great bodily injury. Whether or not the weapon involved is to be classed as "deadly" is a factual question to be resolved by the jury under appropriate instructions.”
Establishes the legal standard for what constitutes a deadly weapon and the proper role of the jury in determining this factual question.
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Join FLexlaw to unlock all legal intelligenceE.S. was found carrying a BB gun that resembled a .45 or semi-automatic .45 handgun. The arresting officer testified the gun was "capable of inflictin…
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PER CURIAM.
The appellant, E.S., a juvenile, appeals from his final judgment of conviction and sentence for carrying a concealed weapon, a BB gun, in violation of section 790.01(1), Florida Statutes (2003). We reverse.
E.S. was charged by a petition for delinquency with carrying a concealed weapon. The arresting officer testified that the BB gun he had found on E.S. looked “like a .45 or a semi-auto .45,” and that the gun was “capable of inflicting injury” when operated properly. The officer also testified that he did not find any CO2 cartridges or anything that would fire out of the gun. The BB gun itself was also placed into evidence, which the trial court examined.
The defense moved for a judgment of acquittal arguing that the state had not established that the BB gun was a “deadly weapon,” within the meaning of the statute.1 The trial court denied the motion, finding that the “deadliness” of the gun was an issue to be resolved by the trier of fact, and that based on the “totality of the circumstances” he found the BB gun in question to be a deadly weapon. E.S. was adjudicated guilty and sentenced to one year probation.
On this appeal, E.S. claims that the evidence was insufficient to establish that the BB gun was a deadly weapon and therefore the trial court erred in denying the motion for judgment of acquittal. We agree.
A “deadly weapon” has generally been defined to be one likely to produce death or great bodily injury. Whether or not the weapon involved is to be classed as “deadly” is a factual question to be resolved by the jury under appropriate instructions.
Dale v. State, 703 So. 2d 1045, 1047 (Fla.1997) (citing Goswick v. State, 143 So. 2d 817, 820 (Fla.1962), receded from on other grounds, State v. Smith, 240 So. 2d 807 (Fla.1970)).
At trial, although the BB gun was introduced into evidence, there was no testimony regarding its operation. The evidence showed that the gun had no cartridge in it and could not discharge pellets. The only evidence regarding the gun’s ability to injure was the police officer’s testimony that the gun was “capable of inflicting injury ... [if] properly operated.” Thus, the evidence taken as a whole, failed to support a factual determination that the BB gun in question was “likely to produce death or great bodily injury.” Dale v. State, 703 So. 2d at 1045.
Since the evidence fell short of showing that the BB gun was a “deadly weapon,” the trial court erred in finding E.S. delinquent, and its adjudication and conviction must be vacated.
Reversed, remanded with directions to vacate sentence and conviction.
. Section 790.01 provides in pertinent part:
[A] person who carries a concealed weapon or electric weapon or device on or about his or her person commits a misdemeanor of the first degree....
§ 790.01(1), Fla. Stat. (2003). In turn, section 790.001 provides that
“Weapon'' means any dirk, metallic knuckles, slungshot [sic], billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocket knife.
§ 790.001(13), Fla. Stat. (2003).
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Santiago v. State, 900 So. 2d 710 (Fla. 3d DCA 2005)…ever, if the weapon is not introduced at trial where it may be inspected and tested by the jury or if the evidence introduced is that the gun was inoperable, then a finding that the weapon is a deadly weapon will not be sustained. See E.S. v. State, 886 So. 2d 311 (Fla. 3d DCA 2004) (BB gun was not a deadly weapon since it was incapable of being fired); Jones v. State, 869 So. 2d 1240, 1242 (Fla. 4th DCA 2004) (BB gun used in a robbery did not constitute a deadly weapon where the gun was not produced at trial…
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K.C. v. State, 49 So. 3d 841 (Fla. 4th DCA 2010)…ccidentally destroyed prior to trial, the State presented no evidence concerning the injury that could be inflicted by such a weapon, and the defendant testified the gun was a cheap model that “couldn’t hurt a fly.” Id. at 1241-42. In E.S. v. State, 886 So. 2d 311, 312 (Fla. 3d DCA 2004), the Third District reversed a convic [*843] tion for carrying a concealed weapon, finding that the evidence was insufficient to establish that the BB gun was a “deadly weapon” where the gun was introduced into evidence, but…
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J.M.P. v. State, 43 So. 3d 189 (Fla. 4th DCA 2010)…o operate the gun or what type of injury the gun might inflict. We hold that, pursuant to our supreme court’s analysis in Dale, the evidence in the instant case is insufficient to demonstrate that J.M.P. possessed a deadly weapon. See E.S. v. State, 886 So. 2d 311, 312 (Fla. 3d DCA 2004) (reversing conviction for carrying concealed weapon, a BB gun, because the only evidence of gun’s ability to injure was officer’s testimony that it was “ ‘capable of inflicting injury ... [if] properly operated,’ ” and that t…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dale v. State, 703 So. 2d 1045 (Fla. 1997)
- State v. Smith, 240 So. 2d 807 (Fla. 1970)
- Goswick v. State, 143 So. 2d 817 (Fla. 1962)