49 So. 3d 841
Fla. Dist. Ct. App.2010Background
- K.C. was found guilty of possessing a BB gun on school property and adjudicated delinquent.
- Charge: violating section 790.115(2), Florida Statutes (2009), prohibiting possession of a firearm or weapon on school property.
- BB gun is not an enumerated item in the statute, so it must qualify as ‘other weapon’ under section 790.001(13).
- ‘Weapon’ includes ‘deadly weapon,’ and a BB gun must be a deadly weapon to fall within the statute’s scope.
- Whether a BB gun is a deadly weapon is a question of fact for the trier of fact; unloaded or unammunitioned status is not dispositive.
- In the instant case, the BB gun was introduced, but there was no evidence it was loaded, operated, or capable of inflicting particular injuries; no use as a bludgeon was shown.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BB gun constitutes a deadly weapon | K.C. contends it was a deadly weapon. | K.C. argues lack of evidence it was capable of death or great bodily harm. | Deadly weapon not shown; reversal of delinquency. |
Key Cases Cited
- Dale v. State, 703 So.2d 1045 (Fla. 1997) (BB gun may be a deadly weapon depending on evidence of capacity to injure)
- J.M.P. v. State, 43 So.3d 189 (Fla. 4th DCA 2010) (BB gun as ‘other weapon’ requires deadly-weapon analysis)
- T.H. v. State, 859 So.2d 549 (Fla. 4th DCA 2003) (BB gun may be deadly weapon where testimony shows capacity to injure)
- Jones v. State, 869 So.2d 1240 (Fla. 4th DCA 2004) (unloaded gun with no evidence of capacity to injure is insufficient)
- E.S. v. State, 886 So.2d 311 (Fla. 3d DCA 2004) (need evidence of capability to inflict injury for deadly-weapon status)
- Mitchell v. State, 698 So.2d 555 (Fla. 2d DCA) (BB gun used as bludgeon may be deadly weapon; citation discusses applicability)
- McCray v. State, 358 So.2d 615 (Fla. 1st DCA 1978) (possible deadly-weapon status if used as a bludgeon)