final until disposition of timely filed motion for rehearing.
appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; James L. Martz, Judge; L.T. Case
Nos. 14-CJ-002864-AMB, 16-CJ-001758-AMB.
Haughwout, Public Defender, and Stacey Kime, Assistant Public
Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for
was found delinquent on the charge of improper exhibition of
a dangerous weapon, which was the basis of a violation of
probation. We reverse the finding of delinquency because the
state failed to prove that appellant wielded a
"weapon" within the meaning of section 790.001(13),
Florida Statutes (2016).
state witness broke up an argument between appellant and his
brother. She saw appellant holding a knife with the point
down but could not describe it because "the handle was
in [appellant's] hand." The witness saw only the
point of the blade and did not know its length. Appellant
went back into his house and got a second knife, which the
witness was also unable to describe. Police officers who
responded to the scene did not recover any knives. Appellant
timely moved for a judgment of dismissal, focusing on the
deficiency in the description of what appellant held in his
hand when he confronted his brother.
difficulty in this case arises from the wording of the
statute. Improper exhibition of a dangerous weapon or firearm
occurs when "any person having or carrying any dirk,
sword, sword cane, firearm, electric weapon or device, or
other weapon shall, in the presence of one or more
persons, exhibit the same in a rude, careless, angry, or
threatening manner, not in necessary self-defense."
§ 790.10, Fla. Stat. (2016) (emphasis added). If the
alleged weapon is not one specified in the statute then it
must qualify as an "other weapon." Section
790.001(13) defines "weapon" as "any dirk,
knife, metallic knuckles, slungshot, billie, tear gas gun,
chemical weapon or device, or other deadly weapon
except a firearm or a common pocketknife,
plastic knife, or blunt-bladed table knife." (Emphasis
knife is the weapon involved in a section 790.10 charge, it
is necessary for the state to establish that the knife is not
a "common pocketknife, " which is specifically
excluded from the definition of the crime by section
was the approach taken by the first district in J.R. v.
State, 967 So.2d 365 (Fla. 1st DCA 2007). The defendant
was accused of holding a knife to his girlfriend's throat
and was charged with aggravated assault with a deadly weapon
and improperly exhibiting a dangerous weapon. Id. at
366. At trial, the victim and another eyewitness receded from
their earlier statements, testifying "they could not
recall the knife's appearance, characteristics, or
dimensions." Id. Although the aggravated
assault charge was dropped, the defendant was convicted of
improper exhibition of a dangerous weapon. Id.
first district acknowledged that appellate courts are
generally deferential to the finder of fact on the
characterization of an item as a "dangerous
weapon". Id. However, since there was no
evidence describing the "appearance, characteristics, or
dimensions" of the defendant's knife, the evidence
failed "to remove the knife from any of the statutory
exceptions listed in the definition of 'weapon' in
section 790.001(13)." Id. at 367. Reversing the
adjudication of delinquency, the court concluded "the
State presented no evidence by which the trial judge could
possibly have found the knife constituted a 'dangerous
weapon' which appellant exhibited 'in a rude,
careless, angry, or threatening manner.'"
other courts have taken a different approach as to whether a
knife qualifies as a "weapon" under section
790.001(13), focusing on the fact that a pocketknife was not
folded in the closed position. In Porter v. State,
the defendant was found with an open pocketknife with a blade
measuring 1 3/4 inches. 798 So.2d 855, 855 (Fla. 5th DCA
2001). The fifth district concluded that a pocketknife in the
open position in the defendant's pocket did not fall
within the "common pocketknife" exception in
section 790.001(13). Id. at 856. Relying on
Porter, the third district has also held that
"[a] pocketknife which is found in the open position . .
. does not fall within the common pocketknife
exception." J.R.P. v. State, 979 So.2d 1178,
1179 (Fla. 3d DCA 2008).
better approach to the "common pocketknife"
exception is that taken by the first district in J.R. v.
State. The plain language of the statute draws no
distinction between closed or open pocketknives. A
"common pocketknife" is just as much a pocketknife
when it is open as when it is closed; its characteristic of
"commonality" is the same either way. Neither
Porter nor J.R.P. provide a sound rationale
for tinkering with the language of the statute to limit the
exception to folded pocketknives.
the state's civilian witness saw the point of a knife,
but was unable to further describe the knife's
appearance, characteristics, or dimensions. The state failed
to produce sufficient evidence that the pocketknife exception
did not apply. We therefore reverse the adjudication of
delinquency and ...