State v. Ortiz, 86-1753
| Decision Date | 13 March 1987 |
| Docket Number | No. 86-1753,86-1753 |
| Citation | 12 Fla. L. Weekly 771,504 So.2d 39 |
| Parties | 12 Fla. L. Weekly 771 STATE of Florida, Appellant, v. Manfredo ORTIZ, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Lauren Hafner Sewell, Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender, Bartow, and Brad Permar, Asst. Public Defender, Clearwater, for appellee.
The state appeals the trial court's dismissal of a count in its information charging the defendant, Manfredo Ortiz, with the possession of a concealed weapon by a convicted felon, a violation of section 790.23, Florida Statutes (1985). We have jurisdiction under Florida Rule of Appellate Procedure 9.140(c)(1)(A). We reverse.
The defendant filed a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4), contending that the knife seized from him, which was the basis of the state's charge, was a closed Buck type folding knife with a four-inch blade. The state's traverse agreed with the defendant's description of the size of the knife and incorporated a photograph of it; however, the state alleged additional facts to support its position. At the hearing on the motion, the defendant argued that the knife in question was a common pocketknife, and therefore, it fell within an exception to the definition of a "weapon" under section 790.001(13).
The trial court granted the defendant's motion, noting that the state's traverse was essentially a demurrer because "the additional facts alleged by the state would not be admissible into evidence." The effect of the court's ruling was to hold as a matter of law that the knife in question was a "common pocketknife" and, therefore, was excepted from the definition of a "weapon" as defined by section 790.001(13).
The state argues several theories; however, the trial court's ruling has prevented it from prosecution under any of them. Unfortunately, the trial court's order does not explain why the state's additional evidence would not be admissible, so we do not address that aspect. In passing, however, it would appear that the photograph of the knife, subject to usual rules of evidence, would be admissible.
The defendant, on the other hand, simply contends the issue before the trial court was whether the knife in question was a common pocketknife and that it was within the trial judge's discretion to decide it did not fall within the statutory definition of a weapon.
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Bunkley v. State
...for a properly instructed jury, not a pure question of law. Of particular importance, this position is confirmed by State v. Ortiz, 504 So.2d 39, 40 (Fla. 2d DCA 1987). Ortiz was charged with possession of a concealed weapon, not armed burglary, but he relied on the same statutory exception......
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Mitchell v. State, 95-02169
...issue is similar to the case law holding that whether a pocketknife is a weapon is a factual question for the jury. In State v. Ortiz, 504 So.2d 39 (Fla. 2d DCA 1987), where there was no factual dispute about the characteristics of the knife, this court held that a jury could decide whether......
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L.B. v. State, 95-01693
...that no per se test could be applied to determine whether the knife, as a matter of law, fell within the exception. See State v. Ortiz, 504 So.2d 39 (Fla. 2d DCA 1987). Subsequently, the trial court found that the particular knife carried by L.B. was too large to fit within the exception an......
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Baldwin v. State, 2D01-4777.
...is neither a "weapon" nor a "concealed weapon." We also find support for our conclusion in this court's decision in State v. Ortiz, 504 So.2d 39 (Fla. 2d DCA 1987). In Ortiz, the defendant was charged with possession of a concealed weapon by a convicted felon in violation of section 790.23,......