Bentley v. State, 84-2372
| Decision Date | 06 November 1985 |
| Docket Number | No. 84-2372,84-2372 |
| Citation | 10 Fla. L. Weekly 2477,477 So.2d 1087 |
| Parties | 10 Fla. L. Weekly 2477 Rose BENTLEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Lee Rosenthal, Asst. Atty. Gen., West Palm Beach, for appellee.
An irate defendant, found guilty of aggravated assault with a firearm, refused to pay for defective repairs to her car. During the argument over payment, she became infuriated when the mechanic retaliated by commencing to render her car inoperable, so she produced a handgun and threatened to kill him if he refused to cease and desist. The gun was not loaded and after the mechanic easily disarmed her the police were called.
This cause deserves an opinion because of the poignant circumstances. The gun contained no bullets and the female defendant was obviously incapable of carrying out her threat. Nonetheless by reacting as she did, she ran afoul of yet another statute which mandates her incarceration for three years in the state penitentiary--a sentence much more savage than that received by many a hardened, violent criminal under the guidelines. A reading of the sentencing proceeding leaves no doubt the trial judge was unhappy to have to sentence this woman, with three dependent children, and no prior criminal record, to three years in prison. However, as he remarked: "I have no choice under the law."
On appeal the defendant claims that the trial court erred in imposing the three year mandatory sentence pursuant to section 775.087(2), Florida Statutes (1983). That section provides for a minimum mandatory three year sentence for any person convicted of aggravated assault while in possession of a "firearm" as defined by section 790.001(6). This latter section defines a firearm as "any weapon ... which will, or is designed to, or may readily be converted to expel a projectile by the action of an explosive."
The defendant relies on Morales v. State, 431 So.2d 648 (Fla. 3d DCA 1983), for the proposition that the state must establish that the weapon is operational. In that case, the defendant displayed a starter pistol and since there was no evidence that the starter gun had been converted, or could be readily converted, to expel a projectile the court concluded that the starter pistol was not a firearm within the meaning of section 790.001(6).
Here, the defendant displayed a handgun which unquestionably did constitute a firearm pursuant to section 790.001(6). Although the gun was unloaded, the defendant was in possession of a firearm which could be readily converted to expel a projectile. Nash v. State, 374 So.2d 1090 (Fla. 4th DCA 1979), following Bass v. State, 232 So.2d 25 (Fla. 1st DCA 1970); Watson v. State, 437 So.2d 702 (Fla. 4th DCA 1983).
The statutes in question do not require the firearm to be loaded and say nothing about the availability of ammunition. 1 Accordingly we affirm.
Nonetheless, there is a case from the First District which...
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Bentley v. State
...Atty. Gen., and Lee Rosenthal, Asst. Atty. Gen., West Palm Beach, for respondent. ADKINS, Justice. We have for review Bentley v. State, 477 So.2d 1087 (Fla. 4th DCA 1985), in which the district court certified the following Does the display of an unloaded firearm, without proof of readily a......
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Willis v. State, 85-2369
...4th DCA 1983). We also reject appellant's claim that the state was required to prove that the firearm was loaded. Bentley v. State, 477 So.2d 1087 (Fla. 4th DCA 1985). Although we believe the error to be harmless we agree, and the state concedes, that the trial court erred in noting on the ......