State v. Pelzer, 53480
| Decision Date | 27 February 1982 |
| Docket Number | No. 53480,53480 |
| Citation | 640 P.2d 1261,230 Kan. 780 |
| Parties | STATE of Kansas, Appellant, v. Lawrence G. PELZER, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. For purposes of sentencing under K.S.A.1980 Supp. 21-4618, a "firearm" is defined as an object having the design or capacity to propel a projectile by force of an explosion, gas, or other combustion.
2. The use of a firearm, as the word "firearm" is defined in Syl. P 1, in the commission of any crime set out in Article 34 of Chapter 21 of Kansas Statutes Annotated requires the imposition of a mandatory sentence as provided in K.S.A.1980 Supp. 21-4618, regardless of whether the firearm is operable or inoperable.
Jack Peggs, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on the brief for appellant.
Edward J. Healy, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause and was on the brief for appellee.
This is an appeal by the State on a question reserved pursuant to K.S.A.1980 Supp. 22-3602. The sentencing court, after the defendant was convicted of the crime of aggravated robbery while armed with a dangerous weapon (a handgun), refused to impose a mandatory minimum sentence under K.S.A.1980 Supp. 21-4618 when it was established that defendant used an inoperable handgun in the commission of the crime. The State appeals.
The question concerning the operability of the handgun arose in this manner. The defendant requested that the handgun be test-fired by the firearms laboratory of the Wichita Police Department prior to the entry of any plea. The test-firing disclosed that the handgun could not fire a bullet because of a mechanical defect in the firing mechanism. The firing pin would not strike the cartridge when the trigger was pulled.
Armed with the findings and report of the Wichita Police Department, defendant entered a plea of guilty to the crime of aggravated robbery while armed with a dangerous weapon. He does not quarrel with the charge. The State requested a mandatory minimum sentence under K.S.A.1980 Supp. 21-4618 which prohibits probation or suspension of sentence for those convicted of certain crimes, which include aggravated robbery, "in which the defendant used any firearm in the commission thereof."
This statute does not define a "firearm," so this court supplied a definition in State v. Davis, 227 Kan. 174, Syl. P 2, 605 P.2d 572 (1980):
"For purposes of sentencing under K.S.A.1978 Supp. 21-4618, a 'firearm' is defined as an object having the design or capacity to propel a projectile by force of an explosion, gas or other combustion."
Although certain amendments to 21-4618 have been made since Davis was handed down, none affect the definition of a firearm adopted by this court in Davis.
In Davis we were concerned with a starter pistol which had been used in committing the crime. The starter pistol had a permanent plug in the barrel which prevented the firing of a projectile. It was neither designed nor did it have the capacity to propel a projectile. This court held it was a dangerous weapon, which if used in the commission of a robbery would raise the offense from robbery to aggravated robbery. However, since it was neither designed nor capable of propelling a projectile it could not be considered a firearm within the meaning of 21-4618.
In State v. Deutscher, 225 Kan. 265, 589 P.2d 620 (1979), this court had previously held that an unloaded revolver was a firearm within the meaning of 21-4618 even though the defendant did not have access to any cartridges for the revolver. There it was said that "(t)he failure of the officers to find live ammunition within reach of the defendant when he was stopped does not make the revolver any less a firearm." 225 Kan. at 272.
Whether a particular weapon falls within the statutory terms, dangerous weapon or firearm, depends in large part upon the intent of the legislature. State v. V. F. W. Post No. 3722, 215 Kan. 693, 695, 527 P.2d 1020 (1974). Where no definition of a statutory term has been provided in the statute, it rests with this court to construe the term based upon the nature and purpose of the statute in which it is used. The nature and purpose of the statute is of primary importance. State v. Deutscher, 225 Kan. at 270, 589 P.2d 620.
When 21-4618 was being considered in legislative committee the...
To continue reading
Request your trial
-
State v. Gantt
...those where the question turns on the extent to which the weapon may be readily returned to operable condition. State v. Pelzer, 230 Kan. 780, 781, 640 P.2d 1261, 1263 (1982) (surveying cases). Most of the courts that have resolved the issue have concluded that whether a particular weapon f......
-
State v. Craddick
...a projectile), the district court's firearm designation was erroneous. 227 Kan. at 175, 178, 605 P.2d 572; see State v. Pelzer, 230 Kan. 780, 780–82, 640 P.2d 1261 (1982) (applying Davis definition to hold that handgun with defective firing mechanism was a firearm despite being inoperable).......
-
State v. Alvarez
...said that the definition of “firearm” includes inoperable weapons that were designed to fire projectiles. See State v. Pelzer, 230 Kan. 780, 782, 640 P.2d 1261 (1982). In Pelzer, the court interpreted the caselaw definition of “firearm” from State v. Davis, 227 Kan. 174, 177–78, 605 P.2d 57......
-
York v. State
...this case (unlike the tear gas gun in Howell ) had been designed, manufactured and presumably sold as a firearm. See State v. Pelzer, 230 Kan. 780, 640 P.2d 1261 (1982). The infliction of death or serious bodily harm was its raison d'etre. The only factor detracting in any degree from its a......