 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
M.D. v. State5/19/2004
M.D. appeals his conviction of carrying a concealed weapon pursuant to section 790.01, Florida Statutes (2001). We reverse because we find that the small wooden bat found in his car was not a "weapon" within the meaning of section 790.01(1).
Officer Francisco Ortiz stopped M.D.'s car for speeding. Believing that M.D. might have been driving under the influence , the officer asked him to step out of the car. The officer then observed a 1.5 foot long "small wooden bat" wedged into the floor crevice between the driver's door and the driver's seat. At no time during the traffic stop did M.D. hold or wield the bat.
The issue in this case is whether the small bat was a weapon within the meaning of section 790.01(1). As it is used in Chapter 790, the term "weapon" means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketkife.
§ 790.001(13), Fla. Stat. (2001). This definition is "based on the description of `weapon' found in the precursor statute, section 790.01, which was enacted in 1901." Bunkley v. State, 833 So. 2d 739, 743 (Fla. 2002), judgment vacated on other grounds by, 538 U.S. 835 (2003). As the second district has written, the list of weapons in section 790.001(13)
has evolved from its first appearance at the turn of the century in the Laws of Florida as a list of prohibited concealed weapons. The original catch-all phrase was "other weapon." Ch. 4929, Laws of Fla. (1901). When the legislature revised chapter 790 in 1969, it added the requirement that the "other weapon" be a "deadly" weapon. Ch. 69-306, § 1 at 1104, Laws of Fla.
Mitchell v. State, 698 So. 2d 555, 559 n.3 (Fla. 2d DCA 1997).
The small bat does not qualify as a "deadly weapon" under the statute "because there was no evidence that it was `normally dangerous or deadly when used in its ordinary and usual manner.'" Hutchinson v. State, 816 So. 2d 1186, 1187 (Fla. 2d DCA 2002) (quoting Mitchell, 698 So. 2d at 557). In Garcia v. State, 789 So. 2d 1059, 1061 (Fla. 4th DCA 2001), we held that whether a kitchen knife was a "deadly weapon" within the meaning of section 790.001(13) was a question of fact depending upon the particular knife involved and the circumstances surrounding the accused's carrying of it. See Nystrom v. State, 777 So. 2d 1013, 1014-15 (Fla. 2d DCA 2000); Mitchell, 698 So. 2d at 560 (observing that under the definition of "dangerous weapon," "a weapon may be deadly based on the threat of its use in a way likely to cause great bodily harm") (emphasis in original). Here, there was no evidence that M.D. used, carried, or wielded the bat in any way.
Only if the small bat could be characterized as a "billie" would it fall within the statutory definition.
Chapter 790 does not define "billie." When a statute fails to define a term, a court may resort to a dictionary definition to ascertain the term's plain and ordinary meaning. See Francis v. State, 808 So. 2d 110, 138 (Fla. 2001). A "billy" is defined by the American Heritage Dictionary as " billy club." American Heritage College Dictionary 137 (3d ed. 1993). A "billy club" is " short wooden club, esp. a police officer's club." Id. Similarly, Webster's Third New International Dictionary defines "billy" as "a heavy usu. wooden weapon for delivering blows: club; esp.: a policeman's club." People v. Fink, 437 N.E.2d 623, 625 (Ill. 1982) (quoting Webster's Third New World Int'l Dictionary 216 (1971)).
These definitions are consistent with the "almost universal " definition of a "billy" as a "policeman's club" or "truncheon." In the Interest of Doe, 876
Page 1 2 Florida DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|