JACKSON MCNEALLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jackson McNeally was convicted of carrying a concealed weapon as a convicted felon after police found a butcher's knife in his jacket. The Florida Fifth District Court of Appeal reversed the conviction, holding that the trial court erred in denying McNeally's request for a jury instruction on the definition of 'deadly weapon,' as the jury must determine whether the knife was a deadly weapon or merely a cooking utensil.
The trial court erred by denying the jury instruction on the definition of 'deadly weapon.' Because the knife was not one of the weapons specifically listed in section 790.001(3)(a), the jury must be permitted to determine whether it qualifies as a 'deadly weapon' based on the circumstances of its possession, including manner of carrying, purpose, and accessibility.
[1] A jury must determine whether an item not specifically listed as a weapon in Florida Statutes section 790.001(3)(a) constitutes a "deadly weapon" when charged with carryi…
[2] A trial court errs by denying a defendant's request for a jury instruction on the definition of "deadly weapon" when the nature of the item carried is disputed.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.”
Definition of 'concealed weapon' from the statute, showing that items not specifically enumerated can qualify if they are 'deadly weapons'
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Join FLexlaw to unlock all legal intelligencePolice officers encountered McNeally outside a closed grocery store and asked if he had weapons. McNeally voluntarily disclosed he had a butcher's kni…
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THOMPSON, J.
Jackson McNeally appeals his conviction for possession of a concealed weapon by a convicted felon. We reverse.
Patrolling police officers found McNeally and a female outside a closed grocery store. They asked McNeally if he had any weapons in his possession, and McNeally replied that he had a butcher’s knife in his jacket. After frisking McNeally, the officers extracted a large knife from McNeally’s jacket and arrested him for carrying a concealed weapon. McNeally testified that he had borrowed the knife from a friend to prepare a meal of ribs and chicken for a New Year’s Day party he was planning. McNeally stated that he did not hesitate to tell the officer that he was carrying the knife because he had it for culinary purposes. At the end of testimony, McNeally asked the trial court to instruct the jury on the definition of “deadly weapon” and argued that the jury had to determine whether McNeally was carrying a “deadly weapon” or a cooking utensil. The trial court denied McNeally’s request, and McNeally was convicted as charged. On appeal, McNeally argues that the trial court erroneously denied his request for the jury instruction. We agree.
Section 790.23(l)(a), Florida Statutes, provides that it is unlawful for a convicted felon to own or to have in his or her care, custody, possession, or control any firearm or electric weapon or device, or to carry a concealed weapon. Section 790.001(3)(a), Florida Statutes, defines a “concealed weapon” as:
Any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.
To be convicted of this crime, a person must carry one of the specified items or a weapon considered to be an “other deadly weapon” in a concealed manner. State v. Walthour, 876 So. 2d 594 (Fla. 5th DCA 2004); Nystrom v. State, 777 So. 2d 1013 (Fla. 2d DCA 2000). Additionally, the jury, as the trier of fact, determines whether the accused is guilty of carrying a concealed weapon based upon the knife involved and the circumstances surrounding the accused’s carrying of it. State v. A.D.H., 429 So. 2d 1316 (Fla. 5th DCA 1983); see also Walthour, 876 So. 2d at 597 (whether a steak knife is a concealed weapon presents a question of fact for the jury).
In the instant case, McNeally did not carry one of the specified items defined as a weapon in section 790.001(3)(a). Therefore, the jury should have been permitted to determine whether the knife was a “deadly weapon.” Moreover, the jury should have received an instruction on the definition of “deadly weapon,” as requested by McNeally. See Nystrom, 777 So. 2d at 1015 (holding that the jury should be permitted to consider whether a common household item that was not one of the weapons specified in section 790.001 was a “deadly weapon,” and the jury should have received an instruction on the definition of “deadly weapon”). As we stated in Walth-our:
Under the undisputed facts, the steak knife may be a dirk, or an innocent household item. But that determination is one for the finder of fact based on a consideration of the circumstances, for example, the manner in which it was carried, how [accessible] it was to the accused, its purpose, or the accused’s motive for carrying it, and its ability to cause harm to another. Id. at 597.
REVERSED and REMANDED for further proceedings.
GRIFFIN and ORFINGER, JJ., concur.
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Caldwell v. State, 920 So. 2d 727 (Fla. 5th DCA 2006)…]ny dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.” See McNeally v. State, 884 So. 2d 494, 495 (Fla. 5th DCA 2004); Nystrom v. State, 111 So. 2d 1013, 1014-15 (Fla. 2d DCA 2000). To properly instruct the jury on both offenses, the instructions must include one of the specific items listed in [*730] the definition of “concealed weapon.” M…1 / 2
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Moore v. State, 903 So. 2d 341 (Fla. 1st DCA 2005)…even assuming the correct definition of “deadly weapon” had been given, the instructions were nonetheless erroneous in that the jury was never instructed that it must determine whether the pellet gun satisfied that definition. See McNeally v. State, 884 So. 2d 494 (Fla. 5th DCA 2004). Jury instructions are subject to the contemporaneous objection rule and absent objection at trial, can be raised on appeal only if fundamental error occurred. See State v. Delva, 575 So. 2d 643 (Fla.1991). No contemporaneous ob…
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Rosario v. State, 932 So. 2d 1285 (Fla. 4th DCA 2006)…hen. Thus, the jury was well aware of its obligation to determine that the knife Rosario carried must be a deadly weapon and not a mere common household object. Unlike both Nystrom v. State, 777 So. 2d 1013 (Fla. 2d DCA 2000) and McNeally v. State, 884 So. 2d 494 (Fla. 5th DCA 2004), where the defendants carried household utensils and readily offered an innocent explanation for their presence, here Rosario admitted that he was carrying the knife for protection, not for normal culinary pursuits. The jury was…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Walthour, 876 So. 2d 594 (Fla. 5th DCA 2004)
- Nystrom v. State, 777 So. 2d 1013 (Fla. 2d DCA 2000)
- State v. A.D.H., 429 So. 2d 1316 (Fla. 5th DCA 1983)