Carter v. State

• Decision Date: 06 December 1984
• Docket Number: No. AU-45,AU-45
• Citation: 469 So.2d 775,10 Fla. L. Weekly 1061
• Parties: 10 Fla. L. Weekly 1061 Harry CARTER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 775

469 So.2d 775

10 Fla. L. Weekly 1061

Harry CARTER, Appellant, v. STATE of Florida, Appellee.

No. AU-45.

District Court of Appeal of Florida,

First District.

Dec. 6, 1984.

On Rehearing En Banc April 25, 1985.

Rehearing Denied June 18, 1985.

Michael E. Allen, Public Defender, and Glenna Joyce Reeves, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Gregory G. Costas, Asst. Atty. Gen., for appellee.

BOOTH, Judge.

Appellant stands convicted of throwing deadly missiles, contrary to Section 790.19, Florida Statutes, which provides:

Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied ... shall be guilty of a felony of the second degree....

Defendant appeals the conviction on the grounds that the State failed to prove what was thrown, that it could produce death or great bodily harm, or that it was thrown at the building.

The record before us shows that an object was thrown which was of sufficient weight to shatter the reinforced glass pane in the metal door of the guard control room in Dormitory D. There was further testimony from the guard who was the intended target of the projectile that the object appeared to be a metal lock and that, after the incident, several metal locks were found on the floor of the control room. We hold the trial court properly denied motion for judgment of acquittal.

The statute requires that the object thrown be capable of causing death or great bodily harm. The exact object need not be identified or produced if there is other evidence from which its nature can be deduced. In Mas v. State, 222 So.2d 250 (Fla. 3d DCA 1969), the object thrown was alleged to have been a type of fire bomb, ¹ but the State was unable to prove the exact nature of the object since it exploded or The information contained the essential allegation that the missile thrown was one which would produce death or great bodily harm, and the additional language [of the information] of "to-wit: a fire bomb" was surplusage and did not require proof that the missile had the particular ingredients of a fire bomb.... [W]hen, as here, the missile is thrown and explodes or burns, there would be no way to prove the exact nature and quantity of its ingredients. For the purpose of the crime charged in this case, it was the nature and capability of the missile as disclosed by its explosive or fire-producing effect, rather than its exact ingredients which were material. (emphasis added)

burned when it was thrown. In affirming the conviction, the court held (222 So.2d 251-52):

In Wilton v. State, 455 So.2d 1142 (Fla. 2d DCA 1984), the object, a grapefruit, was innocuous enough but was thrown under circumstances which rendered it capable of causing death or great bodily harm, and the court held:

The significant point on this appeal is whether the throwing of a grapefruit at a passing tanker truck, thereby shattering its windshield and superficially cutting the driver, constitutes the crime of throwing a deadly missile into an occupied vehicle.

....

In J.W.B. v. State, 419 So.2d 407 (Fla. 2d DCA 1982), this court held that the mere throwing of an orange at a school bus without proof of either striking the bus or any person was insufficient to constitute a crime. Yet, we pointed out that under the proper circumstances, an orange could be a missile under section 790.19. Here, a jury could properly conclude that throwing a grapefruit with sufficient force to break the windshield of a moving truck was an act which "would produce death or great bodily harm."

Under Section 790.19, Florida Statutes, it is the nature and capability of the missile, as disclosed by the evidence, to produce death or great bodily harm that is controlling. In the instant case, the nature and capability of the missile is sufficiently established by the testimony and disclosed by its effect on the door of the guard control room. The jury was entitled to find that, whether the object thrown was a metal lock or some other object, it was a sufficiently hard substance to cause great bodily harm and, had the officer not ducked behind the door, probably would have done so. ²

Appellant also contends the trial court erred in refusing to give a jury instruction based on the holding in Golden v. State, 120 So.2d 651 (Fla. 1st DCA 1960), a case which seems to require that, for a conviction under Section 790.19, the party throwing the object must have intended to hit the building rather than an individual. If that is in fact the holding of the Golden case, it is a case from which this Court now recedes for the reasons stated in Ballard v. State, 447 So.2d 1040 (Fla. 2d DCA 1984), and Skinner v. State, 450 So.2d 595 (Fla. 5th DCA 1984). In Skinner, the court disagreed with Golden v. State, supra, and expressly held that:

Section 790.19, Florida Statutes (1983), is violated by a person who intentionally shoots at, within, or into a building for the primary purpose, or with the specific intent, of shooting at a person in or near the building, as well as by a person who In Ballard v. State, supra, the court held (447 So.2d at 1041):

shoots at, within, or into the building per se.

In denying the motion to dismiss, the trial court disagreed with Golden v. State, 120 So.2d 651 (Fla. 1st DCA 1960). We agree with the trial court that on a motion to dismiss the element of wantonly shooting at or into a building is not negated by the pleaded facts that defendant fired at a man who was in front of the building. "Wantonly" does not require that the building be the target.

We hold that Section 790.19 should not, and need not, be interpreted to reverse a conviction under that statute because of evidence that defendant aimed a missile at, and intended to hit, the guard. This view is supported by Polite v. State, 454 So.2d 769, 771 (Fla. 1st DCA 1984), wherein this Court receded from Golden v. State, supra, in a case involving a conviction under the same statute, Section 790.19, for the offense of throwing a missile at an occupied vehicle, holding:

In the circumstances of the present case appellant's convictions for both battery and throwing a missile at an occupied vehicle could therefore be predicated on the single act of hurling a brick which struck an individual within the vehicle. The mental elements which the offenses require are not in all instances mutually exclusive, and furthermore in the present case the evidence is such as to permit a conclusion that appellant intended his single act to effect damage and injury to both the vehicle and the individual therein. To the extent that Golden, supra, may suggest a result contrary to that reached in this case, we hereby recede therefrom and adopt the rationale expressed in Johnson [v. State, 436 So.2d 248 (Fla. 5th DCA 1983) ].

In the instant case, we need not consider what other crimes could have been charged or convictions obtained for the act of throwing a missile capable of causing death or great bodily harm. The evidence sufficiently supports the jury's determination that defendant violated the statute under which he was charged and stands convicted.

The other issue on appeal, the failure to grant a continuance, we find to be without merit.

Accordingly, the judgment of conviction below is affirmed.

WENTWORTH, J., concurs,

ERVIN, C.J., concurs in part and dissents in part.

ERVIN, Chief Judge, concurring in part and dissenting in part.

Although I am of the view that the majority's disposition of the first point raised reflects the better reasoned and more logical approach, I feel bound to follow this court's opinion in Golden v. State, 120 So.2d 651 (Fla. 1st DCA 1960), until that holding has either been reversed by the supreme court or receded from pursuant to the en banc procedure delineated in Florida Appellate Rule of Procedure 9.331. In the present case the only evidence of appellant's intent came from intended victim, prison guard Bennett, to the effect that the appellant threw an object at him, that he ducked, and the object hit the window of the control room, breaking it. In Golden v. State, the defendant shot at the victim inside the victim's house, resulting in the discharge striking the house. In reversing Golden's conviction for shooting into a dwelling, contrary to Section 790.19, Florida Statutes, this court stated:

The statute now under consideration make [sic] it a criminal offense for anyone to maliciously or wantonly shoot at or into any dwelling or other house. The intent of the statute is obvious. It was enacted for the purpose of preserving the life and safety of anyone occupying a dwelling or other house, and to punish anyone who maliciously or wantonly shoots at or into such an occupied dwelling or house. The gravamen of the offense is the wanton or malicious shooting at or into a house. Although the evidence contained in the record * * *

                clearly reveals that appellant was maliciously and wantonly shooting his pistol during the controversy, his malicious and wanton attitude was directed only toward Jernigan.   There is no evidence which either directly or by inference could be said to establish the fact that appellant was wantonly or maliciously shooting at or into the house per se
                

* * *

We are forced to conclude that the statute was never intended to apply to the factual situation presented by the evidence in this case. The trial court therefore erred in denying defendant's motion for directed verdict as to count two of the information. The judgment of conviction and sentence as to count two is reversed and the cause remanded with directions that a judgment on said count be entered in favor of defendant.

Id. at 653 (e.s.).

Thus, the only evidence in Golden relating to the shooting into a structure revealed that it was directed toward the victim....