Walls v. State

• Decision Date: 27 January 1999
• Docket Number: No. 97-3962,97-3962
• Citation: 730 So.2d 294
• Parties: Larry M. WALLS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

730 So.2d 294

Larry M. WALLS, Appellant, v. STATE of Florida, Appellee.

No. 97-3962

District Court of Appeal of Florida, First District.

January 27, 1999.

Rehearing Denied February 25, 1999.

Nancy A. Daniels, Public Defender and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General, and Laura Fullerton Lopez, Assistant Attorney General, Tallahassee, for Appellee.

KAHN, J.

We affirm appellant's conviction and sentence for possession of a concealed weapon by a convicted felon, as well as his attendant violation of probation. The trial court did not err by denying appellant's sworn motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4).

The sworn motion indicates that the search of appellant revealed "[a]n open folding knife, with a blade approximately four inches long and an overall length of approximately nine inches...." The record further reveals that the knife was "locked" in an open position. In L.B. v. State, the Florida Supreme Court held that the term "common pocketknife" as used in section 790.001(13), Florida Statutes (1995), is not unconstitutionally vague. 700 So.2d 370, 373 (Fla.1997). A common pocketknife is excepted from the definition of "weapon" contained in section 790.001(13). This definition applies to the concealed weapon charge involved in the present case.

Appellant now argues that under L.B. the knife he had was a common pocketknife as a matter of law. Appellant compares his legal position to the juvenile appellant in L.B. who had a "folding knife with a 3 ¾-inch blade and an approximate overall length of 8 ½ inches." The supreme court found such a knife to be a common pocketknife "under any intended definition of that term." 700 So.2d at 373.

This case is different. Here, appellant carried the knife in his pocket in an open, locked position. Moreover, the sworn motion is not specific as to the length of the blade, utilizing the term "approximately" to establish the blade's dimensions. Under these facts, we adhere to pre-L.B. case law indicating that whether the knife at issue constituted a weapon was a jury question. See Bell v. State, 673 So.2d 556 (Fla. 1st DCA 1996)

. To the extent that L.B. establishes a per se rule for the definition of common pocketknife, the rule may be invoked only by a defendant who establishes conclusively that the knife in question has a blade length of four inches or less and that it was carried in the common manner, i.e. in a folded position.

AFFIRMED.

VAN NORTWICK, J., concurs; BENTON, J., dissents with written opinion.

BENTON, J., dissenting.

After the learned trial judge denied the motion to dismiss in the present case, our supreme court ruled in L.B. v. State, 700 So.2d 370, 372-73 (Fla.1997):

[W]e note that Webster's defines "common" as: "known to the community; occurring or appearing frequently esp. in the ordinary course of events; of, relating to, or typical of the many rather than the few." Webster's Third New International Dictionary 458 (1986). Webster's defines "pocketknife" as "a knife with a blade folding into the handle to fit it for being carried in the pocket." Id. at 1747. From these definitions, we can infer that the legislature's intended definition of "common pocketknife" was: "A type of knife occurring frequently in the community which has a blade that folds into the handle and that can be carried in one's pocket."

. . . .

As to the knife at issue here, we hold that petitioner's knife plainly falls within the statutory exception to the definition of "weapon" found in section 790.001(13). In 1951, the Attorney General of Florida opined that a pocketknife with a blade of four inches in length or less was a "common pocketknife." Op. Att'y Gen. Fla. 051-358 (1951). The knife appellant carried, which had a 3 ¾-inch blade, clearly fell within this range.4 Accordingly, appellant's conviction is vacated as we find that the knife in question was a "common pocketnife" under any intended definition of that term.

4We note that neither the Attorney General nor this Court maintains that four inches is a...