KELLY V. WHITTED, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Kelly Whitted pled guilty to aggravated assault with a deadly weapon and carrying a concealed weapon, then sought postconviction relief claiming ineffective assistance of counsel for failing to file a motion to dismiss based on the knife's four-inch blade. The court affirmed the denial of the motion, holding that whether a pocket knife constitutes a deadly weapon is a factual question for the jury, not the subject of a pretrial motion to dismiss.
Counsel was not ineffective because a motion to dismiss would have been unavailing; whether a pocket knife is a deadly weapon is a factual question for the jury to decide based on the circumstances, not a legal question for the court to resolve on a motion to dismiss. The defendant cannot establish prejudice because even if counsel had filed such a motion, the state would have filed a traverse and the court would have denied it.
[1] A common pocket knife can constitute a deadly weapon for purposes of aggravated assault statutes if used in a manner likely to produce death or great bodily injury.
[2] The manner in which an object is displayed and used, rather than the object itself, can determine whether it qualifies as a deadly weapon.
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Join FLexlaw to unlock all legal intelligence“whether a pocket knife is a deadly weapon is a question of fact for the trier of fact”
Establishes that the determination of whether a weapon is deadly depends on factual circumstances, not law, making a pretrial motion to dismiss unavailing
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Join FLexlaw to unlock all legal intelligenceWhitted possessed a four-inch pocket knife and displayed it while assaulting a victim, allegedly swinging it toward the victim while dragging him. He …
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WARNER, J.
The appellant pled guilty and was sentenced on charges of aggravated assault with a deadly weapon and carrying a concealed weapon by a convicted felon. He filed a motion for postconviction relief claiming that his counsel was ineffective for failing to file a motion to dismiss both charges on the basis that the knife he possessed had only a four-inch blade and could not be considered a deadly weapon nor had it been used or displayed in such a way as to classify it as a deadly weapon. The state responded to the motion by attaching the probable cause affidavit showing that the knife was displayed while the appellant dragged the victim. The information also charged that he had swung the knife toward the victim. The trial court summarily denied the motion, and we affirm.
A motion to dismiss would be unavailing, as whether a pocket knife is a deadly weapon is a question of fact for the trier of fact. See, e.g., Garcia v. State, 789 So. 2d 1059, 1061 (Fla. 4th DCA 2001) (whether a kitchen knife was a “deadly weapon” within the meaning of section 790.001(13) was a question of fact depending upon the particular knife involved and the circumstances surrounding the accused’s carrying of it).
See also Nystrom v. State, 777 So. 2d 1013, 1015 (Fla. 2d DCA 2000); Mitchell v. State, 698 So. 2d 555, 560 (Fla. 2d DCA 1997) (observing that under the definition of “dangerous weapon,” “a weapon may be deadly based on the threat of its use in a way likely to cause great bodily harm”); State v. Nixon, 295 So. 2d 121, 122 (Fla. 3d DCA 1974) (court erred in granting defendant’s motion to dismiss information charging assault with a deadly weapon, as the question of whether a pocket knife was a deadly weapon was one for the trier of fact at trial). Here, the probable cause affidavit shows that the appellant displayed the knife while assaulting the victim. Whether such display was a threat of use in a way likely to cause great bodily harm was something a jury would decide, not the court on a motion to dismiss. Counsel was not ineffective for failing to file a motion sure to be denied.
Further, appellant cannot show the necessary prejudice. Had his counsel filed a motion to dismiss, the state could, and most assuredly would, have filed a traverse to the motion, which would have caused the court to deny it. Fla. R.Crim. P. 3.190(d). Thus, the issue was one for the jury, and the appellant does not claim that he would have rejected a plea and gone to trial on these charges.
We affirm as to all issues raised in appellant’s motion.
GROSS and DAMOORGIAN, JJ., concur.
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GEE v. State, 41 So. 3d 1035 (Fla. 2d DCA 2010)…his claim on the ground that the determination of whether Gee’s pocketknife constituted a weapon would be up to the jury and that Gee’s counsel could not be found deficient for failing to file a motion to dismiss the charge, citing Whitted v. State, 992 So. 2d 352 (Fla. 4th DGA 2008), for this proposition. However, Gee’s claim essentially is that he would not have entered a plea had his counsel advised him of this defense, not that his attorney was ineffective for failing to file a motion to dismiss. In contr…
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Dickerson v. State (Fla. 1st DCA 2019)…s felony status was the reason he would not have been carrying a firearm, the trial counsel would have had no basis to move for a mistrial. Trial counsel cannot be held to have been ineffective for not making meritless motions. See Whitted v. State, 992 So. 2d 352 (Fla. 4th DCA 2008). Thus, the trial court did not err in denying this claim. The Appellant argues that his trial counsel was ineffective when she failed to object to the admission of hearsay statements elicited during the testimony of a detective.…
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Jamison v. Sec'y, Dep't of Corr. (Duval County) (M.D. Fla. 2025)…in a light most favorable to the State, this evidence undermined any possibility of prevailing on a JOA motion. And it is obvious that Defense Counsel was not ineffective for failing to craft a meritless motion. See Whitted v. State, 992 So. 2d 352, 353 (Fla. 4th DCA 2008) (“Counsel was not ineffective for failing to file a motion sure to be denied.”). Accordingly, the Court denies Ground Four of [Petitioner's] motion. Id. The First DCA per curiam affirmed without a written opini…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Daniels v. State, 698 So. 2d 555 (Fla. 1st DCA 1997)
- Mitchell v. State, 698 So. 2d 555 (Fla. 2d DCA 1997)
- McGEEHAN v. State, 295 So. 2d 121 (Fla. 2d DCA 1974)
- Nystrom v. State, 777 So. 2d 1013 (Fla. 2d DCA 2000)
- State v. Nixon, 295 So. 2d 121 (Fla. 3d DCA 1974)
- Garcia v. State, 789 So. 2d 1059 (Fla. 4th DCA 2001)