J.P., A JUVENILE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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J.P., a juvenile, was adjudicated delinquent for aggravated assault with a deadly weapon based on allegations that he threw rocks and pointed a BB gun at another person. The appellate court reversed because the evidence was insufficient to establish that quarter-sized rocks, merely tossed softly, constituted use of a deadly weapon likely to cause great bodily harm, though the evidence was sufficient for simple assault.
The evidence was insufficient to establish aggravated assault with a deadly weapon because quarter-sized rocks, when used as they were here (softly tossed, not thrown hard), are not likely to cause death or great bodily harm. However, the evidence was sufficient to establish simple assault.
[1] To prove aggravated assault with a deadly weapon, the state must show the weapon was used in a manner likely to cause death or great bodily harm.
[2] Items not ordinarily likely to cause death or great bodily harm may constitute a deadly weapon if used in a manner likely to cause death or great bodily harm.
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Join FLexlaw to unlock all legal intelligence“A "deadly weapon" 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."”
Establishes the legal definition of deadly weapon applicable to aggravated assault cases
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Join FLexlaw to unlock all legal intelligenceJ.P. was charged with two counts of aggravated battery: one for pointing a BB gun at another individual (dismissed for lack of evidence) and one for t…
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J.P., a juvenile, appeals from an order adjudicating him delinquent for aggravated assault with a deadly weapon. Because the evidence introduced below does not establish that the weapons in this case were used in a manner likely to cause great bodily harm, we reverse.
J.P. was charged below with two counts of aggravated battery for allegedly pointing a BB gun at and throwing rocks at another individual. No evidence was adduced at trial as to the count relating to the BB gun and the count was dismissed. As to the rock throwing charge, the testimony was that J.P. was “tossing [rocks] softly with one hand,” not “throwing [them] hard” but merely “flick[ing]” quarter-sized rocks at the victim. This testimony was legally insufficient to sustain an adjudication for aggravated assault.
To prove aggravated assault, the State had to show that J.P. committed an assault “[w]ith a deadly weapon without *62intent to kill.” § 784.02100(a), Fla. Stat. (2012). A “deadly weapon” 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.” D.B.B. v. State, 997 So.2d 484, 485 (Fla. 2d DCA 2008). The items at issue here, quarter-sized rocks, are not ordinarily likely to cause death or great bodily harm. And based on the evidence adduced below, the rocks were not used in a way likely to cause great bodily harm and in fact caused no harm. See e.g., id. (finding that a bicycle which was thrown at a victim but did not strike her was not a deadly weapon, stating “the manner in which the bicycle was used did not make it likely to cause death or great bodily harm”); E.J. v. State, 554 So.2d 578, 579 (Fla. 3d DCA 1989) (concluding that a skateboard thrown at a vehicle and denting it was not a deadly weapon); Forchion v. State, 214 So.2d 751, 752 (Fla. 3d DCA 1968) (finding that a two foot long piece of a broom handle thrown from twelve to fifteen feet away and inflicting only minor harm was not a deadly weapon); Rogan v. State, 203 So.2d 24, 25 (Fla. 3d DCA 1967) (determining that a one-foot diameter flower pot filled with dirt which was thrown at a window, breaking the glass but not penetrating the screen, was not a deadly weapon); but see A.H. v. State, 577 So.2d 699 (Fla. 3d DCA 1991) (finding that a baseball-sized rock thrown with such force that when it landed five to ten feet from the victim that it produced a loud boom was a deadly weapon). The evidence adduced below was, therefore, insufficient to establish aggravated assault with a deadly weapon.
The evidence was, however, sufficient to establish that J.P. was guilty of assault. See § 784.011(1), Fla. Stat. (2011) (“An ‘assault’ is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.”); D.B.B., 997 So.2d at 486 (concluding that while throwing a bicycle in a manner not likely to cause great bodily injury or death was insufficient to establish assault with a deadly weapon, it was sufficient to establish simple assault); Rogan, 203 So.2d at 25 (similarly confirming that while throwing a flower pot through a window was insufficient to establish aggravated assault, it was sufficient to support a conviction for assault). We therefore reverse J.P.’s adjudication of delinquency for aggravated assault and remand for the trial court to adjudicate him for assault and to impose a sentence appropriate to that offense.
Reversed and remanded with directions.
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Saint-Fort v. State, 222 So. 3d 624 (Fla. 4th DCA 2017)…with an item does not, alone, render that item deadly for the purpose of sentence enhancement.” Suit v. State, 901 So. 2d 986, 988 (Fla. 4th DCA 2005). Under certain circumstances, a rock can be a dangerous or deadly weapon. Compare J.P. v. State, 128 So. 3d 61, 61-62 (Fla. 3d DCA 2013) (finding that quarter-sized rocks the child was “merely flick[ing]” at the victim did not constitute deadly weapons (alteration in original)), with A.H. v. State, 577 So. 2d 699, 700 (Fla. 3d DCA 1991) (finding a rock was a…
Authorities Cited
- E.J. v. State, 554 So. 2d 578 (Fla. 3d DCA 1989)
- Forchion v. State, 214 So. 2d 751 (Fla. 3d DCA 1968)
- Rogan v. State, 203 So. 2d 24 (Fla. 3d DCA 1967)
- D.B.B. v. State, 997 So. 2d 484 (Fla. 2d DCA 2008)
- Klutse v. Rose, 577 So. 2d 699 (Fla. 3d DCA 1991)
- A.H. v. State, 577 So. 2d 699 (Fla. 3d DCA 1991)
- S.F. v. State (Fla. 3d DCA 2023)