L.M., A JUVENILE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The Third District Court of Appeal reversed a juvenile's adjudication for carrying a concealed weapon where the alleged weapon was a BB gun lacking a CO2 cartridge and pellets, holding that the state failed to establish the BB gun was a deadly weapon as required by statute.
The court held that the state failed to prove the BB gun was a deadly weapon as required by statute, and thus reversed the adjudication for carrying a concealed weapon. The court followed its prior holding in E.S. v. State and K.C. v. State, which established that absent evidence the BB gun was loaded and testimony describing its operation or capacity for injury, the carrying concealed weapon charge cannot be sustained.
[1] A BB gun, lacking a CO2 air cartridge and pellets, is not a "deadly weapon" as a matter of law if there is no testimony describing its operation or the nature and charact…
[2] Evidence that a BB gun is propelled by an air cartridge and uses pellets is insufficient to establish it as a deadly weapon without further testimony regarding its operat…
Previewing 2 of 2 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“this showing was insufficient as a matter of law to establish, as required, that the instrument was indeed a "deadly weapon."”
Establishes the legal standard that mere possession of a BB gun without proof it is a deadly weapon cannot support a carrying concealed weapon conviction.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceL.M., a juvenile, was adjudicated delinquent on several violations. The weapon at issue was a BB gun that lacked a CO2 air cartridge and was not loade…
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The juvenile appellant was adjudicated delinquent on the basis of several violations of the law only one of which is challenged on this appeal. We uphold his contention that he was improperly found guilty of carrying a concealed weapon under section 790.01(1), Florida Statutes (2009). The so called “weapon” was a BB gun which lacked a C02 air cartridge, was not loaded with pellets, and as to which there was no testimony describing its operation or the nature and characteristics of the injuries, if any, it was capable of inflicting. As we held in the virtually identical case of E.S. v. State, 886 So.2d 311 (Fla. Bd DCA 2004), this showing was insufficient as a matter of law to establish, as required, that the instrument was indeed a “deadly weapon.” § 790.001(13), Fla. Stat. (2009) (defining “weapon” as any of several enumerated items not including a BB gun or “other deadly weapon”). There, as here, the BB gun had no cartridge or pellets, and, although it was introduced in evidence, there was no testimony regarding its operation.1 We follow E.S. in reversing the challenged adjudication. Accord K.C. v. State, 49 So.3d 841, 843 (Fla. 4th DCA 2010) (reversing adjudication on the ground that “there was no evidence that [the BB gun] was loaded and no testimony describing the BB gun’s operation or the nature and character of injuries it was capable of inflicting”).
The remaining adjudications are affirmed.
Affirmed in part, reversed and remanded for dismissal in part.
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M.M. v. State, 95 So. 3d 247 (Fla. 3d DCA 2012)…as a “deadly weapon,” because the only evidence regarding the pellet gun’s ability to injure was that the projectiles are “capable of injuring people.” The trial court thus erred in denying the motion for judgment of dismissal. Accord L.M. v. State, 77 So. 3d 720 (Fla. 3d DCA 2011); K.C. v. State, 49 So. 3d 841 (Fla. 4th DCA 2010). Compare J.T. v. State, 47 So. 3d 934, 935 (Fla. 4th DCA 2010) (holding there was sufficient evidence to establish the BB gun possessed by juvenile on school property qualified as…
Authorities Cited
- E.S. v. State, 886 So. 2d 311 (Fla. 3d DCA 2004)
- K.C. v. State, 49 So. 3d 841 (Fla. 4th DCA 2010)