Lawyers play games with words, it’s in the job description. Don’t hate the player, hate the game. Sure, we lawyers are easy targets for any number of legitimate complaints, but it becomes about as tiresome as hearing new comedians telling dick jokes for 30 minutes. Yes, I’ve seen plenty of stand-up comics grab their crotch, and I’m even tired of women comics doing it (I admit, it was funny for a little while to see the ladies join in the fun, but they all owe Joan Rivers a royalty for paving the way for crude lady humor).
So, getting back to my first sentence, “games with words”. The reason we lawyers play word games is because the legislature writes crappy vague laws. Now, without vague laws, attorneys would have less to argue about–and hence, make less money. So, the ambiguity found in our laws is just fine with me. But, it’s annoying when prosecutors use this vagueness to enhance criminal charges. So, let’s talk about the term “deadly weapon”. The term is used to transform a variety of misdemeanors into felonies. To an intellectually lazy prosecutor, this term could mean just about anything. Today we’re going to examine a misdemeanor assault case which was upgraded to a felony aggravated assault with a deadly weapon.
In J.P. v. State, 2013 Fla. App. LEXIS 10095 (Fla. 3rd DCA 2013), J.P. appealed his conviction for aggravated assault with a deadly weapon. At trial, testimony revealed that J.P. was throwing rocks at the alleged victim. Now, you may be asking yourself, not all rocks are created equal, right? I mean, if J.P. was throwing rocks off a bridge on the turnpike into oncoming traffic that could get him a felony, right? Well, probably. But, J.P. was simply “tossing [rocks] softly with one hand”, and the rocks were “quarter-sized”. Id. Accordingly, issue on appeal revolved around whether or not quarter sized rocks softly thrown constitute deadly weapons. Yes, leave it to the mind of a prosecutor to think that such small rocks constitute a “deadly weapon”.
The appeals court began their analysis with the definition of aggravated assault, which we’re going to break down into two components. The first component, misdemeanor “assault”, is “an intentional, unlawful threat by word or act to do violence … coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” Id. See Section 784.011(1), Florida Statutes. The second part of aggravated assault involves use of a “deadly weapon” without the intent to kill. Florida Statute section 784.021(1)(a). The definition of a deadly weapon is “an item which, when used in the ordinary manner contemplated by its design, will or is likely to cause death or great bodily harm…or…because of the way it is used during a crime.” Id. The last phrase, “because of the way it is used during a crime”, gives some prosecutors the notion that just about any object on earth can upgrade a misdemeanor assault into a felony aggravated assault. Sometimes they’re right, but most of the time, they’re wrong.
Here’s a few examples of when prosecutors were wrong about upgrading a misdemeanor assault into an aggravated felony (from the J.P. case):
Bicycle thrown at victim not a deadly weapon – D.B.B. v. State, 997 So. 2d 484 (Fla. 2d DCA 2008)
Skateboard thrown at victim not a deadly weapon – E.J. v. State, 554 So. 2d 578 (Fla. 3d DCA 1989)
Broom handle thrown at victim not a deadly weapon – Forchion v. State, 214 So. 2d 751 (Fla. 3d DCA 1968)
Flower pot one foot in diameter filled with dirt, thrown at window, breaking glass but not penetrating screen, not a deadly weapon – Rogan v. State, 203 So. 2d 24 (Fla. 3d DCA 1967)
After reading the list of cases the appeals court cited in J.P., it doesn’t take a rocket scientist to figure out that the appeals court threw out for aggravated assault conviction. So, softly thrown quarter sized rocks are not deadly weapons, no surprise there. But, watch your taxpayer dollars hard at work. A police officer actually arrested J.P. for this crime, a prosecutor actually charged J.P. with this crime, and a judge actually found him guilty of this crime. So, three government officials thought these quarter sized rocks were deadly weapons worthy of felony treatment. Gee, I wonder why America has the highest prison population in the world…three layers of the justice system with no common sense.
However, J.P. wasn’t completely off the hook. Because the evidence still demonstrated that he was guilty of assault, the appeals court found him guilty of assault and sent the case back down to juvenile court to impose a sentence “appropriate to that offense.”
There are tons of cases out there addressing what is, and is not, a deadly weapon. Here’s a few more, not found in the J.P. case:
Darts from a blow gun, penetrating victim’s back one inch (but no medical treatment required) constituted a deadly weapon – V.M.N. v. State, 909 So. 2d 953 (Fla. 4th DCA 2005)
Glass bottle, thrown overhand and striking within a foot of victim, constitutes a deadly weapon – H.E.S. v. State, 773 So. 2d 90 (Fla. 2d DCA 2000).
Fork used to stab victim three times in the back, fork caused scratches, swelling, and puncture marks, but no medical treatment required, not a deadly weapon – C.A.C. v. State, 771 So. 2d 1261 (Fla. 2d DCA 2000)
Yes, I’ve written about this topic before, so if you’re super interested, check out the creatively titled article “What’s the difference between a weapon and a deadly weapon?“