47 So. 3d 934
Fla. Dist. Ct. App.2010Background
- J.T. brings a BB gun to his middle school in his backpack and shows it to classmates.
- School officials and a school resource officer locate the BB gun in J.T.'s backpack; CO2 cartridge and at least one pellet are present.
- Officer testifies a BB gun can cause serious injury and that J.T. admitted firing the gun in the past; the gun is admitted into evidence.
- J.T. moves for judgment of dismissal arguing the state failed to prove the gun was operable and thus a deadly weapon.
- The trial court finds the BB gun a weapon but determines operability proof is unnecessary due to zero tolerance; it denies the motion and withholds adjudication.
- On appeal, the Fourth District holds the evidence was legally sufficient to show the BB gun could be a deadly weapon; operability is a factual issue for the factfinder.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Operability required to prove deadly weapon | J.T. argues operability must be proven to show deadliness. | State contends operability is a fact for the trier of fact and the gun's presence suffices. | Operability not required when evidence shows deadliness; trial court's view affirmed that the state presented sufficient evidence. |
| Effect of evidence on judgment of dismissal | Insufficient evidence to deem the BB gun a deadly weapon without operability proof. | Evidence admitted and operator testimony supports deadly weapon conclusion; dismissal not warranted. | State presented competent substantial evidence; judgment of dismissal denied. |
Key Cases Cited
- Dale v. State, 703 So.2d 1045 (Fla.1997) (deadliness of BB gun is a fact-intensive inquiry)
- Bentley v. State, 501 So.2d 600 (Fla.1987) (loaded status irrelevant to deadliness inquiry)
- J.M.P. v. State, 43 So.3d 189 (Fla.4th DCA 2010) (evidence not sufficient when gun not in evidence or operation not explained)
- Jones v. State, 869 So.2d 1240 (Fla.4th DCA 2004) (advantage of physical evidence on weapon characterization)
- T.H. v. State, 859 So.2d 549 (Fla.4th DCA 2003) (evidence that gun can damage an eye suffices to prove weapon status)
- Wilson v. State, 901 So.2d 885 (Fla.4th DCA 2005) (BB gun not a firearm for purposes of statute)