DALE EDWARD JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
We have examined the record, the briefs and all other papers filed in this matter and no reversible error having been shown, the judgment appealed from is therefore affirmed.
LILES, Acting C. J., and PIERCE, J., concur.
McNULTY, J., dissents with opinion.
(dissenting).
The one meritorious point on appeal is whether an unloaded pistol, not used as a bludgeon, constitutes a “deadly weapon” so as to support a conviction of aggravated assault. Our sister court in the First District concluded in the affirmative, Bass v. State, (1970), 232 So.2d 25. I disagree. The element of placing the victim in fear of imminent peril is embodied in the assault itself; but it’s the control of a “deadly weapon” by the perpetrator which raises the assault to the higher degree of crime, the gravamen of which is the present ability to inflict death or great bodily harm. Solitro v. State (Fla.App.2d 1964), 165 So.2d 223. This is hardly possible with an unloaded gun not used as a bludgeon. See, 79 A.L.R.2d 1424.
McNULTY, Judge
(dissenting).
The one meritorious point on appeal is whether an unloaded pistol, not used as a bludgeon, constitutes a “deadly weapon” so as to support a conviction of aggravated assault. Our sister court in the First District concluded in the affirmative, Bass v. State, (1970), 232 So. 2d 25. I disagree. The element of placing the victim in fear of imminent peril is embodied in the assault itself; but it’s the control of a “deadly weapon” by the perpetrator which raises the assault to the higher degree of crime, the gravamen of which is the present ability to inflict death or great bodily harm. Solitro v. State (Fla.App.2d 1964), 165 So. 2d 223. This is hardly possible with an unloaded gun not used as a bludgeon. See, 79 A.L.R.2d 1424.
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Citator
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Duba v. State, 446 So. 2d 1167 (Fla. 5th DCA 1984)…e this may be true as a practical matter, it does not change the correct meaning of the term “a deadly weapon,” which, as part of a criminal statute, must be strictly construed. Accordingly, we agree with Judge McNulty, dissenting in Jones v. State, 238 So. 2d 661 (Fla. 2d DCA 1970), and reject the expansive view of the definition of “a deadly weapon”, contained in M.R.R. and Bass, supra. We hold that whether or not an object is a deadly weapon is a question of fact to be determined by the jury from the evid…
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Nash v. State, 374 So. 2d 1090 (Fla. 4th DCA 1979)….] 232 So. 2d at 27. I do not dispute that an assault with an unloaded handgun might produce the result described by the Bass court; however, I am [*1092] much more persuaded by Judge McNulty’s reasoning in his dissenting opinion in Jones v. State, 238 So. 2d 661 (Fla. 2d DCA 1970), wherein he pointed out: Our sister court in the First District concluded in the affirmative, Bass v. State, (1970), 232 So. 2d 25. I disagree. The element of placing the victim in fear of imminent peril is embodied in the assaul…
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Lynn v. State, 567 So. 2d 1043 (Fla. 5th DCA 1990)…5th DCA 1984). In Duba, this court rejected the expansive view of a deadly weapon contained in M.R.R. v. State, 411 So. 2d 983 (Fla. 3d DCA 1982), and Bass v. State, 232 So. 2d 25 (Fla. 1st DCA 1970), by agreeing with the dissent in Jones v. State, 238 So. 2d 661 (Fla. 2d DCA 1970). The Jones dissent indicated that it was hardly possible to inflict death or great bodily harm with an unloaded gun not used as a bludgeon. The dissent reasoned that, because there had been no demonstrated present ability to infli…
Authorities Cited
- Bass v. State, 232 So. 2d 25 (Fla. 1st DCA 1970)
- Solitro v. State, 165 So. 2d 223 (Fla. 2d DCA 1964)