Nicarry v. State, 5D00-2844.
| Decision Date | 05 October 2001 |
| Docket Number | No. 5D00-2844.,5D00-2844. |
| Parties | Neil NICARRY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant, Neal Nicarry.
Robert A. Butterworth, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
Nicarry committed traffic offenses in the presence of a police officer. The officer turned on his blue light to effectuate a stop but Nicarry ignored him and proceeded to SR 436 in an effort to elude the officer. Because the incidents which prompted the chase were merely traffic offenses, the officer cut off hot pursuit when Nicarry entered the highway. The officer, joined by another officer and with the assistance of a police helicopter, continued to follow Nicarry at a distance. At some point, Nicarry ran his vehicle into a fence, abandoned the vehicle, fled on foot into a neighborhood and took shelter in a shed in a resident's backyard. In order to enter the shed, Nicarry was required to remove a screwdriver which was being used in the hasp to keep the door closed. He was ultimately discovered in the shed. He exited the shed with the screwdriver in his hands and was shot twice. Nicarry was convicted of armed burglary of an occupied dwelling and aggravated fleeing and eluding. He was also charged with aggravated assault on law enforcement officers because he charged out of the shed with the screwdriver in his hands threatening the officers. The jury acquitted him of this offense. Because of traffic offenses which went awry, Nicarry was sentenced to life in prison as a Prison Releasee Reoffender for the armed burglary of an occupied dwelling and ten years concurrently on the aggravated fleeing and eluding count.
We reverse the conviction for armed burglary, finding that there was insufficient evidence that the screwdriver alleged herein was a "dangerous weapon." Although a screwdriver can qualify as a "dangerous weapon" depending on how it is used, here the allegation that Nicarry "brandished it against the law enforcement officers" was rejected by the jury in acquitting him of the aggravated assault charge. In count 1 of the information, Nicarry was charged with arming himself with "a dangerous weapon, to wit: a screwdriver." There were no allegations in count 1 indicating how the screwdriver was used. The jury was instructed that a weapon is a dangerous or deadly weapon if it is used or threatened to be used in a way likely to produce death or great bodily harm. In count 3, the information alleges that defendant used the screwdriver to assault the officers. These facts, if proved, would make the screwdriver a dangerous weapon. However, the jury not only acquitted defendant on this charge, it did not even...
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Gonzalez v. State, 3D02-415.
...was not used as a dangerous weapon. Thus, Gonzalez argues, he could not have been "armed," relying heavily upon Nicarry v. State, 795 So.2d 1114 (Fla. 5th DCA 2001), rev. denied, 819 So.2d 138 (Fla.2002). Nicarry, however, involved interlocking charges in two separate counts for being armed......
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Young v. State
...a structure without permission in order to evade capture. See Jean-Marie v. State, 947 So.2d 484 (Fla. 3d DCA 2006); Nicarry v. State, 795 So.2d 1114 (Fla. 5th DCA 2001); Britton v. State, 604 So.2d 1288 (Fla. 2d DCA 1992); Burton v. State, 925 A.2d 503 (Del.2007); Patrick v. State, 922 A.2......
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Patrick v. State, No. 170, 2006 (Del. 3/15/2007)
...statute to find that the crime of interfering with an officer may serve as the necessary underlying offense); Nicarry v. State, 795 So. 2d 1114, 1116 (Fla. Dist. Ct. App. 2001) (holding that running into a house with the intent to hide from pursuing police officers can constitute burglary).......