ANDREW FORCHION, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Forchion was convicted of malicious destruction of property and aggravated assault. The appellate court reversed the aggravated assault conviction, finding the state failed to prove the object thrown (a stick-like object) constituted a deadly weapon, and remanded for conviction on the lesser included offense of assault and battery.
The object thrown was not a deadly weapon. Whether an object is a deadly weapon must be determined by its likelihood to produce death or great bodily injury, not merely its capability to do so. The evidence was insufficient to support an aggravated assault conviction, though it was sufficient for the lesser included offense of assault and battery.
“the gist of the crime of aggravated assault as condemned by § 784.04 Fla.Stat., F.S.A. 'is found in the character of the weapon with which the assault is made,' and '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 that the character of the weapon is central to aggravated assault and that the deadly weapon classification is a factual matter
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Join FLexlaw to unlock all legal intelligenceForchion and others entered a store and created a disturbance. When asked to leave by employee Collins, they departed but smashed property and, from 1…
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The appellant was found and adjudged guilty, on trial before the court, of the separately charged offenses of malicious destruction of personal property and aggravated assault. On the former he was sentenced to be confined in the county jail for 81 days. On the latter he was sentenced to imprisonment in the state penitentiary for a term of 5 years. The defendant then took this appeal.
The appellant does not challenge the conviction and sentence for malicious destruction of personal property. With reference to the charge of aggravated assault, the appellant concedes the evidence is sufficient to support a conviction for the lesser included offense of assault and battery, but argues the state failed to prove that the assault was made with a deadly weapon. We hold the latter contention of the appellant has merit.
The defendant was one of several persons who entered a store and created a commotion. They were asked to leave by an employee named Collins, who informed them that he had called the police. They departed, but prior to leaving they smashed or broke several articles of personal property and the defendant, from a distance of from twelve to fifteen feet yelled at Collins and threw an object at him which hit Collins on the arm inflicting minor injury. The object thrown was described as “what looked like part of a broom handle” approximately two feet in length.
In Goswick v. State, Fla.1962, 143 So.2d 817, 820, it was stated that the gist of the crime of aggravated assault as condemned by § 784.04 Fla.Stat., F.S.A. “is found in the character of the weapon with which the assault is made,” and “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.”
Here the trial judge, as the trier of the facts in the absence of a jury, considered that the stick thrown by the defendant at Collins should be classified as a deadly weapon within the meaning of the statute condemning aggravated assault. We are unable to agree with the able trial judge in that conclusion.
In the briefs there were cited numerous cases holding that certain implements or objects are deadly weapons, and cases describing others as not having the character. No useful purpose would be accomplished by relisting them here. Whether or not an object is a deadly weapon is not to be determined upon its capability of producing death but rather on its likelihood to produce death or great bodily injury.
Accordingly, the conviction and sentence for aggravated assault is reversed and the cause is remanded with directions as to the latter to adjudge the defendant guilty of the lesser included offense of assault and battery and impose sentence thereon. See Brown v. State, Fla.1968, 206 So.2d 377; Goswick v. State, supra.
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E.J. v. State, 554 So. 2d 578 (Fla. 3d DCA 1989)…DCA 1963); Johnson v. State, 249 So. 2d 452 (Fla. 4th DCA 1971), or if it is “likely to produce death or great bodily injury.” Goswick v. State, 143 So. 2d 817, 820 (Fla.1962); Colainni v. State, 245 So. 2d 893 (Fla. 2d DCA 1971); Forchion v. State, 214 So. 2d 751 (Fla. 3d DCA 1968). Whether a weapon is deadly is 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, 23…
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Nash v. State, 374 So. 2d 1090 (Fla. 4th DCA 1979)….) 2.07(2)(a). . Goswick v. State, 143 So. 2d 817 (Fla.1962); Lindsey v. State, 67 Fla. 111, 64 So. 501 (1914); Johnson v. State, 249 So. 2d 452 (Fla. 4th DCA 1971); J.M.C. and D.P.S. v. State, 331 So. 2d 366 (Fla. 3rd DCA 1976); Forchion v. State, 214 So. 2d 751 (Fla. 3rd DCA 1968); Solitro v. State, 165 So. 2d 223 (Fla. 2d DCA 1964). . Bass v. State, 232 So. 2d 25 (Fla. 1st DCA 1970); Gilbert v. State, 347 So. 2d 1087 (Fla. 3rd DCA 1977); Warren v. State, 332 So. 2d 361 (Fla. 3rd DCA 1976); Dawson v. Stat…
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State v. Nixon, 295 So. 2d 121 (Fla. 3d DCA 1974)…inder of facts at trial (Bass v. State, Fla.App. 1970, 232 So. 2d 25), and is to be determined upon consideration of its likelihood to produce death or great bodily injury. Dey v. State, Fla.App.1966, 182 So. 2d 266; Forchion v. State, Fla.App.1968, 214 So. 2d 751. It is common knowledge that in certain circles pocket knives are used by assailants with deadly weapon effect as frequently, if not more frequently than are firearms. Secondly, the appellee contends the information was insufficient and subject to…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Goswick v. State, 143 So. 2d 817 (Fla. 1962)