Arroyo v. State, 89-0729

Decision Date05 July 1990
Docket NumberNo. 89-0729,89-0729
Citation564 So.2d 1153
Parties15 Fla. L. Weekly D1743 Salvadore ARROYO, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Lynn Waxman, Asst. Atty. Gen., West Palm Beach, for appellee.

HERSEY, Chief Judge.

Salvadore Arroyo appeals his conviction of attempted armed burglary. We reverse the conviction and sentence for the reasons that follow.

Arroyo was discovered in an apartment in the early morning hours by the two female occupants of the apartment. In his hands he held a T-shirt, a flashlight and an open pocket knife. He made no threatening gestures; he asked and was given permission to leave. There was testimony that he did not appear intoxicated. His excuse for being in the apartment was that he mistook it for the home of a friend. He left and was found asleep in a laundry room less than an hour later.

The first issue is whether a pocket knife is a "dangerous weapon" within the meaning of section 810.02(2)(b), Florida Statutes (1989). That section provides that a burglary is a first-degree felony where the offender "is armed, or arms himself within such structure ... with ... a dangerous weapon." We conclude that a pocket knife may be a dangerous weapon within the meaning of the statute, but that it was not on the facts of this case.

The term "dangerous weapon" is not defined in chapter 810. The term "weapon" is defined in section 790.001(13), Florida Statutes (1989) as: "any dirk, metallic knuckles, slingshoot, billy, teargas gun, chemical weapon, or device, or other deadly weapon except a firearm or a common pocketknife."

Although the first paragraph of section 790.001, which provides that the definitions contained therein are to apply throughout chapter 790, might appear as an implied limitation on their applicability elsewhere, we discern no rational basis for such a limitation. In fact, "[a]s a general rule, Florida courts have utilized the statutory definition of 'weapon' provided in section 790.001(13) to determine whether a particular object constitutes a 'weapon' for purposes of section 812.13(2)(b) [the armed robbery statute]." Streetman v. State, 455 So.2d 1080, 1082 (Fla. 2d DCA 1984). See also Hartman v. State, 403 So.2d 1030 (Fla. 4th DCA 1981).

In Hartman we explained that "we do not consider [the language in the first paragraph of section 790.001] to limit use of the definitions exclusively to chapter 790, particularly where common sense dictates that a definition set forth there may have perfectly reasonable application elsewhere." Id. at 1031.

Similarly in this case we see no reason not to look to the definition in section 790.001(13) in applying section 810.02(2)(b). See Depasquale v. State, 438 So.2d 159 (Fla. 2d DCA 1983); McCray v. State, 358 So.2d 615 (Fla. 1st DCA 1978).

If, then, a "pocketknife" is expressly excluded from the term "weapon," does that mean that a pocketknife can never be a "weapon" or a "dangerous weapon" for purposes of applying statutes employing those terms. We think not and follow the lead of our sister court in holding that it depends upon the use made of the pocketknife and other facts involved in a particular case. The third district, in State v. Nixon, 295 So.2d 121 (Fla. 3d DCA 1974), addressed the question whether a common pocket knife could be a "deadly weapon" since it was expressly excluded from the enumerated weapons in section 790.001(13). In answering that question affirmatively, the third district noted that the legislature exempted common pocketknives from the definition of weapons in chapter 790 so that citizens would not be charged with a crime when carrying such knives for their own convenience and for useful purposes unrelated to criminal activity. The third district further noted, however, that common pocketknives could be deadly weapons when used in a manner likely to produce death or great bodily harm.

Thus, the pocketknife in this case could also be a dangerous weapon if it was used in a manner likely to produce death or great bodily injury. A review of the record indicates that such was not the case here.

The state inappropriately relies on Hardee v. State, 534 So.2d 706 (Fla.1988), and State v. Dopson, 323 So.2d 644 (Fla. 4th DCA 1975), as dispositive of this issue on other grounds, but those cases are clearly distinguishable. Neither involved the issues we have dealt with here. It was the state's burden to prove beyond a reasonable doubt that Arroyo was carrying a "dangerous weapon." To do so in the context of a pocketknife required proof that it was used in a manner likely to cause death or great bodily harm. No such evidence was presented to the jury. Accordingly, we reverse on this issue. Upon remand Arroyo should be resentenced for the lesser offense of attempted burglary (without enhancement for having a "dangerous weapon").

Arroyo contends, as his second point on appeal, that his motion for judgment of acquittal should have been granted based upon lack of evidence on the element of intent to commit an offense. The motion suggested a reduction from burglary to the lesser-included crime of trespass.

In order to obtain a conviction for burglary, the state must prove two elements: (1) unauthorized entry or remaining in a structure or conveyance, and (2) a specific intent to commit an offense therein. § 810.02(1), Fla.Stat. (1989); Toole v. State, 472 So.2d 1174 (Fla.1985); Ellis v. State, 425 So.2d 201 (Fla. 5th DCA), approved, 442 So.2d 213 (Fla.1983).

The state's proof regarding the accused's specific intent will almost always be circumstantial since the state will rarely have direct proof as to the defendant's exact objectives, motives and intentions. Further, section 810.07, Florida Statutes (1989), provides that proof of stealthy entry is prima facie evidence of intent.

In order to resolve this issue this court must determine whether there was enough...

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12 cases
  • Bunkley v. State
    • United States
    • Florida Supreme Court
    • May 27, 2004
    ...a key-chain knife would fall within the "common pocketknife" exception to the statutory definition of "weapon"); Arroyo v. State, 564 So.2d 1153, 1154 (Fla. 4th DCA 1990) (reversing a defendant's conviction for attempted armed burglary and holding that a pocketknife is not a "dangerous weap......
  • Smith v. Winters
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 28, 2003
    ...so drunk that he had thought he was breaking into his own house. See Witherspoon v. State, 671 S.W.2d 143, 144 (1984); Arroyo v. State, 564 So.2d 1153, 1155 (Fla.App.1990); Hamilton v. State, 163 Ind.App. 463, 324 N.E.2d 822, 823 (1975); see also People v. Lee, 229 Ill.App.3d 254, 170 Ill.D......
  • Smith v. State, 93-2051
    • United States
    • Florida District Court of Appeals
    • November 14, 1994
    ...with an offense that contains no definition of weapon. See, e.g., Butler v. State, 602 So.2d 1303 (Fla. 1st DCA 1992); Arroyo v. State, 564 So.2d 1153 (Fla. 4th DCA 1990). The state may prove that a defendant carried, displayed, used, threatened, or attempted to use a weapon during the comm......
  • JM v. State, 1D03-3468.
    • United States
    • Florida District Court of Appeals
    • May 10, 2004
    ...2000); State v. A.M., 765 So.2d 927 (Fla. 2d DCA 2000); and State v. Coleman, 802 So.2d 422 (Fla. 3d DCA 2001). 2. See Arroyo v. State, 564 So.2d 1153 (Fla. 4th DCA 1990); State v. Nixon, 295 So.2d 121 (Fla. 3d DCA 1974); see, e.g., Dale v. State, 703 So.2d 1045 (Fla.1997) (finding whether ......
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