Gilbert v. State, 75-971
| Decision Date | 12 July 1977 |
| Docket Number | No. 75-971,75-971 |
| Citation | 347 So.2d 1087 |
| Parties | Ulysses Ulice GILBERT, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
Before PEARSON, BARKDULL and NATHAN, JJ.
As mandated by the Florida Supreme Court in Gilbert v. State, 344 So.2d 564 (Fla.1977), this cause is before us for further consideration in light of State v. White, 324 So.2d 630 (Fla.1975). We have reviewed the case again, taking into consideration the supplemental briefs filed by counsel for the defense and for the State.
The facts show that the defendant, Ulysses Ulice Gilbert, was playing pool in the Zebra Lounge where the victim, Louvenia Robinson is the bar maid and manager. The defendant began to curse and Louvenia asked him to be quiet or leave. He continued to curse, so Louvenia went to the telephone to call the police. The defendant pulled a gun, pointed it at Louvenia's head and told her if she called the police, ". . . he would blow (her) God damned brains out." Louvenia saw that the gun was a dark color, and that the defendant held it to her head for several seconds,whereupon she obeyed and put the phone down. The defendant then left the Zebra waiving the gun at the patrons and stating, "Nobody better not follow me."
The defendant was charged by information with aggravated assault. He waived jury trial, was tried without a jury, convicted and sentenced to two years non-reporting probation. During the trial, Louvenia testified to the facts recited above, and her testimony was corroborated by one of the bar patrons who witnessed the incident.
Defendant urges on appeal that there was no evidence of well-founded fear on the part of the victim that violence was imminent. We follow the principle of law espoused by the Florida Supreme Court in State v. White, supra, that the crime of aggravated assault includes as one of its elements the victim's well-founded fear that violence is imminent. Applying it to the facts of this case, we find that the defendant's action in pointing the pistol at the victim's head in plain view of the victim and other persons present met all of the essential elements of aggravated assault. It is unlikely in the course of human events that a person in Louvenia's circumstances would not have a well-founded fear that violence is imminent when a pistol is pointed at her head.
When one is confronted by another with a gun and does not know it to be unloaded, the natural reaction is to assume that the gun can be fired and can inflict great bodily harm. Bass v. State, 232 So.2d 25 (Fla.1st DCA 1970)....
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Culbreath v. State
...man, then the victim may be found to be in fear, and actual fear need not be strictly and precisely shown.' Gilbert v. State, 347 So.2d 1087, 1088 (Fla. 3d DCA 1977) (citations omitted); McClain v. State, 383 So.2d 1146, 1147 (Fla. 4th DCA), review denied, 392 So.2d 1376 (Fla.1980). The sam......
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In re Standard Jury Instructions in Criminal Cases—Report No. 2015–06, SC15–1872.
...McClain v. State, 383 So.2d 1146 (Fla. 4 thth DCA 1980); Smithson v. State, 689 So.2d 1226 (Fla. 5thth DCA 1997); Gilbert v. State, 347 So.2d 1087 (Fla. 3rdd DCA 1977).If the circumstances were such as to ordinarily induce a well-founded fear in the mind of a reasonable person, then the vic......
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In re Standard Jury Instructions in Criminal Cases—report Number
...McClain v. State, 383 So.2d 1146 (Fla. 4th DCA 1980); Smithson v. State, 689 So.2d 1226 (Fla. 5th DCA 1997); Gilbert v. State, 347 So.2d 1087 (Fla. 3rd DCA 1977). If the circumstances were such as to ordinarily induce a well-founded fear in the mind of a reasonable person, then the victim m......
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Kindell v. State, 78-1884
...circumstances to warrant a reasonable inference in the minds of the intended victims that bodily harm was imminent. Gilbert v. State, 347 So.2d 1087 (Fla. 3d DCA 1977). The defendant also contends that her conviction of felonious display of a firearm must be reversed because the elements ne......