DAE'VEAUN L. WINBUSH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Winbush challenges the denial of his Rule 3.850 motion for postconviction relief, arguing that his counsel provided ineffective assistance by advising him that a BB gun constituted a deadly weapon merely because it was used during carjacking crimes. The court reversed and remanded because the record contained no evidence refuting the appellant's allegations that the State could not prove the BB gun was a deadly weapon as a matter of law.
The court reversed and remanded because the record did not refute the appellant's allegations. While a BB gun can constitute a deadly weapon, that is a factual determination for the jury, and the State must prove it was used or threatened in a way likely to produce death or great bodily harm. The trial court must either attach record portions refuting the appellant's allegations or hold an evidentiary hearing.
[1] A BB gun can constitute a deadly weapon, but whether it is a deadly weapon is a factual determination for the jury.
[2] To prove a BB gun is a deadly weapon, the State must demonstrate it was used or threatened to be used in a manner likely to produce death or great bodily harm.
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Join FLexlaw to unlock all legal intelligence“A BB gun can constitute a deadly weapon, but that is a factual determination for the jury.”
Establishes that while a BB gun may be considered a deadly weapon, the State must prove it through evidence presented to a jury, not through counsel's assertion alone.
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Join FLexlaw to unlock all legal intelligenceThe appellant entered negotiated pleas in two cases for carjacking with a deadly weapon, receiving concurrent sentences of 18 years' imprisonment. He …
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The appellant challenges the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Pro-" *1089cedure 3.850. For the reasons discussed below, we reverse and remand for further proceedings.
The appellant entered into negotiated pleas in two cases to charges of car-jacking with a deadly weapon in exchange for concurrent sentences of 18 years’ imprisonment. He alleges that the deadly weapon was a BB gun that did not constitute a deadly weapon. The appellant alleges that counsel erroneously advised him that the BB gun constituted a deadly weapon merely because it was used during the crimes. If the appellant’s allegations are true, that advice is erroneous. A BB gun can constitute a deadly weapon, but that is a factual determination for the jury. Dale v. State, 703 So.2d 1045 (Fla.1997). In order to prove a BB gun is a deadly weapon, the State must prove that the BB gun was “used or threatened to be used in a way likely to produce death or great bodily harm.” Fla. Std. Jury Instr. (Crim.) 15.2. The appellant alleges that the State could not provide any evidence showing that the BB gun used during the crimes was a deadly weapon.1 He asserts that if he had known that the State could not prove he used a deadly weapon, he would not have entered his plea.
There is nothing in the, record before this Court that refutes any of the appellant’s allegations regarding the advice he received or whether the State could have proved that the BB gun constituted a deadly weapon. Thus, we reverse and remand for the trial court to' attach portions of the record refuting the appellant’s allegations or to hold an evidentiary hearing.
REVERSED and REMANDED for further proceedings consistent with this opinion. ■
LEWIS, WETHERELL, and MAKAR, JJ., concur.
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Citator
Cited By
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Bryant v. State (Fla. 1st DCA 2020)
Authorities Cited
- Dale v. State, 703 So. 2d 1045 (Fla. 1997)
- Akins v. State, 838 So. 2d 637 (Fla. 5th DCA 2003)
- Suit v. State, 901 So. 2d 986 (Fla. 4th DCA 2005)