THE STATE OF FLORIDA, APPELLANT,
v.
EDWARD ROBINSON NIXON, APPELLEE
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Florida appealed the dismissal of an aggravated assault information charging Nixon with assaulting another with a knife. The court reversed, holding that a knife can constitute a deadly weapon as a matter of fact for trial, and that the information adequately alleged all required elements including location and time.
The court held that a knife can be a deadly weapon as a factual question for the jury determined by its likelihood to produce death or great bodily injury; that the exception of common pocket knives from the definition of 'weapon' in the concealed carry statute does not preclude them from being deadly weapons in an assault context; and that alleging the county and date is sufficient, with specific location and time being discoverable particulars rather than required pleading elements.
[1] An information charging aggravated assault is sufficient if it alleges the essentials of the offense in statutory language.
[2] A common pocket knife may constitute a deadly weapon for purposes of an aggravated assault charge.
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Join FLexlaw to unlock all legal intelligence“Whether an object used as a weapon in an assault is a deadly weapon is a factual question to be resolved by the finder 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.”
Establishes that whether a knife constitutes a deadly weapon is a jury question, not grounds for pre-trial dismissal based on the nature of the weapon.
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Join FLexlaw to unlock all legal intelligenceEdward Robinson Nixon was charged by information with aggravated assault on David White on July 28, 1973, in Dade County, Florida, using a knife as a …
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This appeal is by the state from an order dismissing an information which charged the appellee with aggravated assault, in violation of § 784.04 Fla.Stat., F.S.A.1
The information alleged “that Edward Robinson Nixon on the 28th day of July 1973, in the County and State aforesaid [Dade County, Florida], did unlawfully and feloneously, without intent to kill, make an assault in and upon one David White, with a certain deadly weapon, to-wit: a knife, in violation of 784.04 Florida Statutes, [F.S.A.].”
The information tracked the statute. The essentials of the offense were alleged in the statutory language. It was sufficient. See Smith v. State, 1916, 72 Fla. 449, 73 So. 354; McGuire v. State, 1932, 106 Fla. 934, 143 So. 766; State v. Bruno, Fla. 1958, 107 So. 2d 9.
The order granting the defendant’s motion to dismiss the information did not state grounds upon which it was based. The appellee contends the information was insufficient because the “deadly weapon” therein referred to was a knife, and points to the fact that in Chapter 790 Fla.Stat., F.S.A. in which it is provided that carrying a concealed weapon on or about one’s person is a misdemeanor of the first degree, in § 790.001(13) thereof firearms and common pocket knives are excepted from the definition of “weapon.” Elsewhere in the statute there is an express provision making it a crime to carry a concealed firearm on or about the person. Obviously the legislature, by excepting common pocket knives from the category of weapons, the carrying of which would be a crime, did so in order that the carrying of a common pocket knife by a citizen should not constitute a crime, in view of the general custom of people to carry such knives for convenience and useful purposes unrelated to any criminal intent or activity.
But that does not mean that a pocket knife cannot be a deadly weapon. Whether an object used as a weapon in an assault is a deadly weapon is a factual question to be resolved by the finder 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 dismissal for failure to allege the time of day, and the place or address within the county at which the alleged offense took place. That contention is without merit. In that regard, the allegations that the offense was committed in Dade County on a certain date, were sufficient. Sparks v. State, Fla.1973, 273 So. 2d 174. The exact location in the county at which the offense was claimed by the state to have been committed, and the time of day or night, were particulars which could have been sought and obtained by the defendant by discovery under the rules, if considered necessary. No such application therefor was made.
For the reasons stated the order dismissing the information is reversed, and the cause is remanded for further proceedings.
. "Aggravated assault.—Whoever assaults another with a deadly weapon, without intent to kill, shall he guilty of an aggravated assault, and shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083 or § 775.084.”
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Cited By (18 total)
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Durden v. State, 743 So. 2d 77 (Fla. 1st DCA 1999)…is a factual question to be answered by the jury in each case.” Dale v. State, 703 So. 2d 1045, 1047 (Fla.1997); see also Mims v. State, 662 So. 2d 962 (Fla. 5th DCA 1995); Arroyo v. State, 564 So. 2d 1153, 1154 (Fla. 4th DCA 1990); State v. Nixon, 295 So. 2d 121 (Fla. 3d DCA 1974). Accordingly, L.B. is distinguishable. See also Walls v. State, 730 So. 2d 294 (Fla. 1st DCA 1999). We have recently rejected the arguments raised by appellant relating to the Prison Releasee Reoffender Act. See Woods v. State,…
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Salvadore Arroyo v. State, 564 So. 2d 1153 (Fla. 4th DCA 1990)…es of applying statutes employing those terms. We think not and follow the lead of our sister court in holding that it depends upon the use made of the pocketknife and other facts involved in a particular case. The third district, in State v. Nixon, 295 So. 2d 121 (Fla. 3d DCA 1974), addressed the question whether a common pocket knife could be a “deadly weapon” since it was expressly excluded from the enumerated weapons in section 790.001(13). In answering that question affirmatively, the third district note…
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Bunkley v. State, 882 So. 2d 890 (Fla. 2004)…er that the carrying of a common pocket knife by a citizen should not constitute a crime, in view of the general custom of people to carry such knives for convenience and useful purposes unrelated to any criminal intent or activity. State v. Nixon, 295 So. 2d 121, 122 (Fla. 3d DCA 1974); see also L.B. v, State, 681 So. 2d 1179, 1180 (Fla. 2d DCA 1996). B. Relevant Facts of L.B. and Bunkley Due process requires that the clarification of the common pocketknife exception in L.B. be applied in this case becaus…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bass v. State, 232 So. 2d 25 (Fla. 1st DCA 1970)
- Smith v. State, 72 Fla. 449 (Fla. 1916)
- State v. Bruno, 107 So. 2d 9 (Fla. 1958)
- Forchion v. State, 214 So. 2d 751 (Fla. 3d DCA 1968)
- DEY v. State, 182 So. 2d 266 (Fla. 2d DCA 1966)