IN THE INTEREST OF W.M., A CHILD
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A BB gun can be considered a deadly weapon if used in a manner likely to cause death or great bodily harm, and the trial court did not err in denying the motion for acquittal.
The defendant was charged with aggravated assault with a deadly weapon, using a BB gun. The information specified the weapon as a firearm/handgun.…
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STONE, Judge.
The defendant appeals the denial of his motion for judgment of acquittal on the charge of aggravated assault with a deadly weapon. The weapon used was a BB gun.
A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily ham. Fla. Std. Jury Instr. (Grim.) p. 88. A BB gun has been found to be a deadly weapon, as it has the capability of inflicting great bodily ham. Duba v. State,
446 So. 2d 1167 (Fla. 5th DCA 1984); Depasquale v. State, 438 So. 2d 159 (Fla. 2d DCA 1983). In State v. Jeffers, 490 So. 2d 968 (Fla. 5th DCA 1986), it was held that a pellet gun may constitute a deadly weapon. Typically, these types of guns expel metallic shot, lead, or projectiles by operation of air or gas.
The appellant argues that because the state alleged in the information that the weapon used was “to-wit: a firearm.. .handgun_” the state was required to prove that the weapon complied with the statutory definition of a “firearm” found in section 790.001(6), Florida Statutes (1985). The insertion of this language in the infomation, possibly for the purpose of determining whether the statutory mandatory minimum applied, is surplusage as it is not an element of aggravated assault. Mas v. State, 222 So. 2d 250 (Fla. 3d DCA 1969). Therefore, it does not matter whether a projectile would be propelled from the gun by means of an “explosive”.
We find that a BB gun is a weapon that possesses the capability of inflicting great bodily ham and that the trial court did not err in denying defendant’s motion for judgment of acquittal.
AFFIRMED.
GLICKSTEIN and GUNTHER, JJ., concur. . We do not discuss the issue, raised in Duba, whether the defense may argue to the jury that the weapon is not a deadly weapon due to the manner in which it was used in the CEise, as that issue is not before us.
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Citator
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Dale v. State, 703 So. 2d 1045 (Fla. 1997)…eapon is a jury question); Duba v. State, 446 So. 2d 1167 (Fla. 5th DCA 1984) (whether a BB gun is a deadly weapon is a jury question). See also Lynn v. State, 567 So. 2d 1043 (Fla. 5th DCA 1990) (a pellet pistol can be a deadly weapon); In re W.M., 491 So. 2d 1263 (Fla. 4th DCA 1986) (a BB gun is a deadly weapon); Emshwiller v. State, 443 So. 2d 488 (Fla. 2d DCA 1984) (a BB gun is a deadly weapon); Depasquale v. State, 438 So. 2d 159 (Fla. 2d DCA 1983) (a BB gun can be a deadly weapon). . Cf. Bentley v. Stat…
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Jordan v. State, 801 So. 2d 1032 (Fla. 5th DCA 2001)…son conducted after she was taken to the Orange County Jail. Jordan pled no contest to the first count of each information, in return for which the State agreed to nolle prosequi the two remaining charges. . The State cites In the Interest of W.M., 491 So. 2d 1263 (Fla. 4th DCA 1986), and Mas v. State, 222 So. 2d 250 (Fla. 3d DCA 1969), to support its contention that the "drug paraphernalia” language in the information was surplusage. But these cases are easily distinguishable from the instant case because th…
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In the Interest of G.F., 609 So. 2d 164 (Fla. 4th DCA 1992)…of section 784.045(1)(a), Florida Statutes (1991). Although we ourselves have held that a BB gun is a deadly weapon for purposes of aggravated assault within the meaning of section 784.021(1)(a), Florida Statutes (1991), see In the Interest of W.M., 491 So. 2d 1263 (Fla. 4th DCA 1986), I am not sure that what constitutes a deadly weapon for assault purposes is identical to what constitutes a deadly weapon for battery purposes. Certainly, we have not so decided. But see Emshwiler v. State, 443 So. 2d 488 (Fla.…
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
- Duba v. State, 446 So. 2d 1167 (Fla. 5th DCA 1984)
- Depasquale v. State, 438 So. 2d 159 (Fla. 2d DCA 1983)
- State v. Jeffers, 490 So. 2d 968 (Fla. 5th DCA 1986)
- Skop v. Brorein, 222 So. 2d 250 (Fla. 2d DCA 1969)
- Rathgeber v. Smith, 222 So. 2d 250 (Fla. 3d DCA 1969)