MARCELINE PORTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Marceline Porter, a convicted felon, appeals her conviction for possession of a weapon by a convicted felon after police found a pocketknife in her open pocket. The court affirmed her conviction, holding that the per se rule from L.B. v. State—which excludes common pocketknives under four inches from the statutory definition of 'weapon'—does not apply when the knife is carried in an open position rather than folded.
The court held that L.B.'s per se rule does not apply when a pocketknife is carried in an open position. Although Porter established the blade was under four inches, the fact that the knife was in the open position in her pocket made the question of whether it constituted a weapon a jury question rather than a matter of law.
[1] A pocketknife with a blade under four inches in length is a "common pocketknife" excluded from the statutory definition of "weapon" as a matter of law, unless it is carri…
[2] The determination of whether a pocketknife constitutes a "weapon" under the statute is a question for the jury when the pocketknife is found in an open position.
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Join FLexlaw to unlock all legal intelligence“To the extent that L.B. establishes a per se rule for the definition of common pocketknife, the rule may be invoked only by a defendant who establishes conclusively that the knife in question has a blade length of four inches or less and that it was carried in the common manner, i.e. in a folded position.”
Establishes the standard for when the L.B. per se rule applies, requiring both blade length under four inches AND common folded position.
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Join FLexlaw to unlock all legal intelligenceIn December 1999, a police officer observed Porter standing on a street corner in a high-crime area with her hands in her shorts pockets. After approa…
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THOMPSON, C.J.
Marceline Porter appeals her conviction for possession of a weapon by a convicted felon, in violation of section 790.23, Florida Statutes. We affirm.
In December 1999, an officer watched Porter as she stood on a street corner in a high crime area frequented by prostitutes. Her hands were in the pockets of her shorts. The officer saw one vehicle slow down as it neared her, and another stop. She spoke to the occupants of the latter vehicle. The officer approached Porter and eventually asked to search her pockets. She consented, telling the officer that she had a knife in her pocket. The officer retrieved a pocketknife which was in its open position. The blade was 1% inches long. When closed the knife measured 2)4 inches long, and when fully extended the knife measured 4 inches long. Porter moved to dismiss the charges based on L.B. v. State, 700 So. 2d 370 (Fla.1997). L.B. held that as a matter of law a pocketknife whose blade was under four inches in length was a “common pocketknife” excluded from the statutory definition of “weapon.”1 The trial court, however, ruled that whether the pocketknife was a weapon was a jury question because the pocketknife was in the open position in Porter’s pocket.
The trial court based its ruling on Walls v. State, 730 So. 2d 294 (Fla. 1st DCA 1999). There, the defendant was charged with possession of a weapon by a convicted felon and moved to dismiss based on L.B. In affirming the conviction, the court stated:
Here, appellant carried the knife in his pocket in an open, locked position. Moreover, the sworn motion is not specific as to the length of the blade, utilizing the term “approximately” to establish the blade’s dimensions. Under these facts, we adhere to pre-L.B. case law indicating that whether the knife at issue constituted a weapon was a jury question. See Bell v. State, 673 So. 2d 566 (Fla. 1st DCA 1996). To the extent that L.B. establishes a per se rule for the definition of common pocketknife, the rule may be invoked only by a defendant who establishes conclusively that the knife in question has a blade length of four inches or less and that it was carried in the common manner, i.e. in a folded position.
Id. at 294-95. In the instant case, Porter has established that the blade she carried was under 4 inches in length, but we agree with Walls that L.B.’s per se rule does not apply when the pocketknife is in the open position.
AFFIRMED.
SAWAYA and PLEUS, JJ., concur. . Section 790.001(13) provides:
“Weapon” means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife.
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Citator
Cited By (13 total)
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In re Standard Jury Instructions IN Crim. Cases-Report NO. 2012-04, 131 So. 3d 720 (Fla. 2013)…rm] [dirk] [sword] [sword cane] [electric weapon or device] in necessary self-defense, you must find [him][her] not guilty. Read appropriate self-defense instruction. Give as applicable. Definitions. § 790.001(13), Fla. Stat. and Porter v. State, 798 So. 2d 855 (Fla. 5th DCA 2001). A “weapon” is any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a closed common pocketknife, plastic knife, or blunt-bladed table knife.…1 / 2
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In re Standard Jury Instructions IN Crim. Cases-Report NO. 2012-09, 122 So. 3d 263 (Fla. 2013)…any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a closed common pocketknife, plastic knife, or blunt-bladed table knife. Give if applicable. Porter v. State, 798 So. 2d 855 (Fla. 5th DCA 2001). However, an open pocketknife could constitute a weapon. R.R. v. State, 826 So. 2d 4-65 (Fla. 5th DCA 2002); Cook v. Crosby, 914 So. 2d 490 (Fla. 1st PGA 2005). A “deadly weapon” is any instrument which will likely cause death…
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Bunkley v. State, 882 So. 2d 890 (Fla. 2004)…on in L.B., as before, the question of whether a knife with a folding blade is a “common poeketknife” is a fact question for the jury where the blade exceeds four inches or the knife is carried in an open position or brandished. See Porter v. State, 798 So. 2d 855, 856 (Fla. 5th DCA 2001) (holding that it was a jury question whether a pocketknife carried in an open position was a deadly weapon for purposes of the crime of possession of a weapon by a convicted felon); Arroyo v. State, 564 So. 2d 1153, 1155 (Fl…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- L.B. v. State, 700 So. 2d 370 (Fla. 1997)
- Walls v. State, 730 So. 2d 294 (Fla. 1st DCA 1999)