STATE OF FLORIDA, APPELLANT,
v.
MANFREDO ORTIZ, APPELLEE
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Florida appeals the trial court's dismissal of charges against Ortiz for possession of a concealed weapon by a convicted felon. The trial court wrongly determined as a matter of law that a folding knife was a common pocketknife exempt from weapons statutes. The appellate court reverses, holding that whether a knife qualifies as a common pocketknife is a factual question for trial, not a legal determination.
A trial court errs in determining as a matter of law whether a knife is a common pocketknife. The determination of whether a knife qualifies as a common pocketknife is ordinarily a factual matter that cannot be decided in proceedings under Florida Rule of Criminal Procedure 3.190(c)(4), and the case must proceed to trial.
[1] A determination of whether a knife constitutes a "common pocketknife" ordinarily involves a factual determination that cannot be made by a trial court in proceedings unde…
[2] A trial court errs in dismissing a charge as a matter of law when the classification of the item in question, such as whether it is a "common pocketknife," requires a fac…
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Join FLexlaw to unlock all legal intelligence“whether a knife is a "common pocketknife" ordinarily involves a factual determination which may not be made by a trial court in proceedings under rule 3.190(c)(4)”
Establishes the core holding that common pocketknife classification is a factual, not legal, question unsuitable for motion to dismiss proceedings
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Join FLexlaw to unlock all legal intelligenceManfredo Ortiz, a convicted felon, possessed a closed Buck type folding knife with a four-inch blade when closed. When fully extended and locked, the …
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SCHEB, Acting Chief Judge.
The state appeals the trial court’s dismissal of a count in its information charging the defendant, Manfredo Ortiz, with the possession of a concealed weapon by a convicted felon, a violation of section 790.23, Florida Statutes (1985). We have jurisdiction under Florida Rule of Appellate Procedure 9.140(c)(1)(A). We reverse.
The defendant filed a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4), contending that the knife seized from him, which was the basis of the state’s charge, was a closed Buck type folding knife with a four-inch blade. The state’s traverse agreed with the defendant’s description of the size of the knife and incorporated a photograph of it; however, the state alleged additional facts to support its position. At the hearing on the motion, the defendant argued that the knife in question was a common pocketknife, and therefore, it fell within an exception to the definition of a “weapon” under section 'i 90.001(13).
The trial court granted the defendant’s motion, noting that the state’s traverse was essentially a demurrer because “the additional facts alleged by the state would not be admissible into evidence.” The effect of the court’s ruling was to hold as a matter of law that the knife in question was a “common pocketknife” and, therefore, was excepted from the definition of a “weapon” as defined by section 790.001(13).
The state argues several theories; however, the trial court’s ruling has prevented it from prosecution under any of them. Unfortunately, the trial court’s order does not explain why the state’s additional evidence would not be admissible, so we do not address that aspect. In passing, however, it would appear that the photograph of the knife, subject to usual rules of evidence, would be admissible.
The defendant, on the other hand, simply contends the issue before the trial court was whether the knife in question was a common pocketknife and that it was within the trial judge’s discretion to decide it did not fall within the statutory definition of a weapon.
We think the trial court erred in dismissing the state’s charge against the defendant. The legislature in creating an exception for a common pocketknife did not define what constitutes such a knife. Therefore, whether a knife is a “common pocketknife” ordinarily involves a factual determination which may not be made by a trial court in proceedings under rule 3.190(c)(4). See State v. Fry, 422 So. 2d 78 (Fla. 2d DCA 1982).
Indeed, it is not clear whether the knife in question is a common pocketknife because when fully extended and locked the knife measures almost nine inches. If this knife had a fixed blade instead of a folding blade, it may well have been classified as a “dirk,” under section 790.001(13). Thus, the trial court erred in concluding, as a matter of law, that this knife was a “common pocketknife.”
Accordingly, we reverse the trial court’s order of dismissal and remand for proceedings consistent with this opinion.
RYDER and HALL, JJ., concur.
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Mitchell v. State, 698 So. 2d 555 (Fla. 2d DCA 1997)…ate, 678 So. 2d 337 (Fla.1996). In Dale, there was evidence that the BB gun was operational. The case law on this issue is similar to the case law holding that whether a poeketknife is a weapon is a factual question for the jury. In State v. Ortiz, 504 So. 2d 39 (Fla. 2d DCA 1987), where there was no factual dispute about the characteristics of the knife, this court held that a jury could decide whether a four-inch poeketknife was or was not a concealed weapon. Until this court held that the “common poeketk…
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Bunkley v. State, 882 So. 2d 890 (Fla. 2004)…of whether Bunkley’s knife was a dangerous weapon or an exempted common pocketknife was ordinarily a question of fact for a properly instructed jury, not a pure question of law. Of particular importance, this position is confirmed by State v. Ortiz, 504 So. 2d 39, 40 (Fla. 2d DCA 1987). Ortiz was charged with possession of a concealed weapon, not armed burglary, but he relied on the same statutory exception on which Bunkley relies. He filed a motion to dismiss because the charge was based on his pocketknife,…1 / 2
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L.B. v. State, 681 So. 2d 1179 (Fla. 2d DCA 1996)…B.’s knife fit within the “common pocketknife” exception found in section 790.001(13). The trial court concluded that no per se test could be applied to determine whether the knife, as a matter of law, fell within the exception. See State v. Ortiz, 504 So. 2d 39 (Fla. 2d DCA 1987). Subsequently, the trial court found that the particular knife carried by L.B. was too large to fit within the exception and entered her conviction, thus concluding that the knife was not a “common pocketknife.” Our assessment of…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. FRY, 422 So. 2d 78 (Fla. 2d DCA 1982)