RICHARD F. ROGAN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Richard Rogan was convicted of aggravated assault based on throwing a flower pot through a window. The Florida appellate court reversed the conviction, finding insufficient evidence that the flower pot qualified as a deadly weapon, and remanded for conviction on the lesser offense of simple assault.
The flower pot did not constitute sufficient evidence of a deadly weapon. Although the trial court properly denied the motion to quash because the nature of an object can present a factual question for the trier of facts, the evidence here was insufficient to establish that the flower pot was of such character as to be classified as a deadly weapon. The conviction for aggravated assault is reversed, but the evidence adequately established guilt of the lesser included offense of simple assault.
“An aggravated assault may be committed without a battery. The gist of the crime is found in the character of the weapon with which the assault is made. The use of a deadly weapon must be charged and proved. It is the nature of the weapon that characterizes the assault as 'aggravated.'”
Establishes that the critical element of aggravated assault is the deadly nature of the weapon used
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Join FLexlaw to unlock all legal intelligenceRogan threw a flower pot through a window of a residence while threatening bodily harm to the occupant. The flower pot was described as pretty heavy, …
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The appellant was informed against, charged with aggravated assault, alleging use of a flower pot as a deadly weapon. His motion to quash the information was denied. He was tried without a jury and was convicted and adjudged guilty of the crime charged. On appeal therefrom the appellant contends that the court erred in denying his motion to quash the information, and that the evidence was insufficient to support the conviction.
The determinative question is whether the flower pot was or could be held to be a deadly weapon. The gravamen of the offense of aggravated assault, as condemned by § 784.04 Fla.Stat, F.S.A., is the use of a deadly weapon in the assault.
“ * * * An aggravated assault may be committed without a battery. The gist of the crime is found in the character ■of the weapon with which the assault is made. The use of a deadly weapon must be charged and proved. It is the nature of the weapon that characterizes the assault as ‘aggravated.’ ” Goswick v. State, Fla.1962, 143 So.2d 817, 820.
In a prosecution for aggravated assault, the nature of an object used may he such as to present a factual question to be decided by the jury or the trier of the facts as to whether it is a deadly weapon. The “weapon” employed in the assault in this instance could be held to he a deadly weapon, depending on the evidence.1 Therefore the trial court was eminently correct in denying the motion to quash the information.
By finding the defendant guilty of aggravated assault in this case the trier of the facts necessarily held the flower pot was a deadly weapon. A finding of fact by a trial court should not be rejected on an appeal if there is substantial competent evidence to support it. Here the evidence relating to the flower pot showed only that it was pretty heavy, one foot in diameter and filled with dirt. It was not shown whether the flower pot was made of concrete, glass, clay, cardboard, paper mache or other material. In Blitch v. State, Fla.App.1967, 194 So.2d 1, recently decided by this court, the evidence showed that the implement there found to be a deadly weapon was a broken porcelain beer mug, and in that case the beer mug was introduced into evidence. Here, the flower pot alleged to have been used was not produced or presented in evidence. In our opinion there was not sufficient evidence upon which the trier of facts could properly hold that the flower pot was of such character as to he classified as a deadly weapon. The flower pot was thrown from outside, into a window of a residence. The complaining witness was inside, seated in a chair five feet from the window. The flower pot broke the glass but did not penetrate the screen. The screen also held out the broken glass, hut dirt from the flower pot spilled through onto the floor of the room.
*26However, the evidence adequately established that the defendant was guilty of the crime of assault, a lesser included offense of the crime of aggravated assault. Goswick v. State, supra. The flower pot was hurled in the direction of the complaining witness coincident with the voicing of a threat of bodily harm to her. There was no contact made with the complaining witness, and therefore no battery.
Accordingly, the judgment of conviction for the crime of aggravated assault is reversed and the sentence imposed thereon is set aside; and the cause is remanded with directions to the trial court to adjudge the defendant guilty of the lesser included offense of assault and to impose sentence appropriate to that offense.
Reversed and remanded with directions.
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E.J. v. State, 554 So. 2d 578 (Fla. 3d DCA 1989)…s a question of fact to be determined under all the circumstances, taking into consideration the weapon and its capability for use. Duba v. State, 446 So. 2d 1167 (Fla. 5th DCA 1984); Bass v. State, 232 So. 2d 25 (Fla. 1st DCA 1970); Rogan v. State, 203 So. 2d 24 (Fla. 3d DCA 1967). There is insufficient evidence in the record to support the trial court’s conclusion that the under the circumstances of this case, the skateboard was a deadly weapon;1 however, the evidence does support an adjudication of delinq…
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M.R.R. v. State, 411 So. 2d 983 (Fla. 3d DCA 1982)…s for trier of fact); Forchion v. State, 214 So. 2d 751 (Fla. 3d DCA 1968) (whether stick was deadly weapon was question for jury). See, e.g., Austin v. State, 336 So. 2d 480 (Fla. 3d DCA 1976) (chemical spray was not deadly weapon); Rogan v. State, 203 So. 2d 24 (Fla. 3d DCA 1967) (flower pot not deadly weapon), and cases collected, footnote 1, in Rogan v. State, supra at 25. Since the State concedes that the instrument in this case was a starter gun, we must determine whether the trial court could find a…
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D.B.B. v. State, 997 So. 2d 484 (Fla. 2d DCA 2008)…skateboard thrown at a vehicle was not a deadly weapon); Forchion v. State, 214 So. 2d 751, 752 (Fla. 3d DCA 1968) (finding that a two foot long part of a broom handle thrown from twelve to fifteen feet away was not a deadly weapon); Rogan v. State, 203 So. 2d 24, 25 (Fla. 3d DCA 1967) (concluding that a one-foot diameter flower pot filled with dirt, which was thrown through the window of a residence, did not qualify as a deadly weapon where the victim was seated five feet from the window). The State [*486]…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Goswick v. State, 143 So. 2d 817 (Fla. 1962)
- Blige v. State, 20 Fla. 742 (Fla. 1884)
- Bass v. State, 172 So. 2d 614 (Fla. 2d DCA 1965)
- Wilder Morris Blitch v. State, 194 So. 2d 1 (Fla. 3d DCA 1967)
- DEY v. State, 182 So. 2d 266 (Fla. 2d DCA 1966)
- Garland Ray Maples and William Clarence Osteen v. State, 183 So. 2d 736 (Fla. 3d DCA 1966)