E.S. V. STATE
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM A.D., 2004 E.S., a juvenile, Appellant, vs. ** ** ** THE STATE OF FLORIDA, Appellee. CASE NO. 3D04-1318 ** ** LOWER TRIBUNAL NO. 03-9213 ** Opinion filed November 10, 2004. An Appeal from the Circuit Court for Miami-Dade County, Lester Langer, Judge. Bennett H. Brummer, Public Defender, Assistant Public Defender, for appellant. and Valerie Jonas, Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee. Before GREEN, FLETCHER, and WELLS, JJ. PER CURIAM. The appellant, E.S., a juvenile, appeals from his final judgment of conviction and sentence for carrying a concealed weapon, a BB gun, in violation of section 790.01(1), Florida Statutes (2003). E.S. was We reverse. charged by a carrying a concealed weapon. petition for delinquency with The arresting officer testified that the BB gun he had found on E.S. looked like a .45 or a semi-auto .45, and that the gun was capable of inflicting injury when operated properly. The officer also testified that he did not find any CO2 cartridges or anything that would fire out of the gun. The BB gun itself was also placed into evidence, which the trial court examined. The defense moved for a judgment of acquittal arguing that the state had not established that the BB gun was a deadly weapon, within the meaning of the statute.1 The trial court denied the motion, finding that the deadliness of the gun was an issue to be resolved by the trier of fact, and that based on the 1 totality of the circumstances he found the BB gun in Section 790.01 provides in pertinent part: [A] person who carries a concealed weapon or electric weapon or device on or about his or her person commits a misdemeanor of the first degree . . . . § 790.01(1), provides that Fla. Stat. (2003). In turn, section 790.001 Weapon means any dirk, metallic knuckles, slungshot [sic], billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocket knife. §790,001(13), Fla. Stat. (2003). 2 question to be a deadly weapon. E.S. was adjudicated guilty and sentenced to one year probation. On this appeal, E.S. claims that the evidence was insufficient to establish that the BB gun was a deadly weapon and therefore the trial court erred in denying the motion for judgment of acquittal. We agree. A deadly weapon has generally been defined to be one likely to produce death or great bodily injury. Whether or not the weapon involved is to be classed as deadly is a factual question to be resolved by the jury under appropriate instructions. Dale v. State, 703 So. 2d 1045, 1047 (Fla. 1997) (citing Goswick v. State, 143 So. 2d 817, 820 (Fla. 1962), receded from on other grounds, State v. Smith, 240 So. 2d 807 (Fla. 1970)). At trial, although the BB gun was introduced into evidence, there was no testimony regarding its operation. showed that discharge the gun no The pellets. had cartridge only in evidence it The evidence and regarding could the not gun s ability to injure was the police officer s testimony that the gun was capable of Thus, the operated. inflicting evidence injury taken as ... a [if] whole, properly failed to support a factual determination that the BB gun in question was likely to produce death or great State, 703 So. 2d at 1045. 3 bodily injury. Dale v. Since the evidence fell short of showing that the BB gun was a deadly weapon, the trial court erred in finding E.S. delinquent, and its adjudication and conviction must be vacated. Reversed, remanded with directions to vacate sentence and conviction. 4
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