J.W., Appellant, v. STATE (2003)

Defendant, a juvenile, forcibly entered a home with a pocket knife in his hand.   He did not threaten the resident with it or wave it at her.   Actually, as soon as he saw her, he turned and immediately ran outside and away from the scene.

Inside, the victim had heard him “jiggling and turning the doorknob.”   When he entered she saw the knife in his hand and said she was scared:

“[a] lot of crazy thoughts went through my mind.   What he had the ability to do․ He had the ability to come in the door and no telling what else he could have did.   I mean I didn't have anything to protect myself or nothing.”

The question is whether this testimony is enough to refuse to reduce a charge of first degree armed burglary (with a dangerous weapon) to simple burglary of a dwelling.¹

Under nearly identical facts in Arroyo v. State, 564 So.2d 1153, 1154 (Fla. 4th DCA 1990), we recognized that a pocket knife could conceivably constitute a dangerous weapon if actually used “in a manner likely to produce death or great bodily injury.”   Nevertheless, we held that under the circumstances it did not qualify as a dangerous weapon for purposes of that case.

That decision was released more than a decade ago.   Since then the Legislature has not made any attempt to amend the statute to treat all burglars wielding pocket knives as qualifying for first degree burglary, even if they do so non-threateningly.   Accordingly, it was error to convict defendant under the first degree burglary statute and to refuse to reduce the conviction to simple burglary of a dwelling.

REVERSED.

I agree with the majority that we are bound by Arroyo to reverse.   I would, however, urge the legislature to review the statutory definitions of weapon, dangerous weapon, and deadly weapon, particularly as applied to the objects used in the course of committing a serious crime.   It is hard to explain why, as presently interpreted, we leave it to a jury to determine whether the defendant will be subject to an enhanced sentence when an unloaded BB gun is carried in the course of the crime, as in Dale v. State, 703 So.2d 1045 (Fla.1997), but prevent the jury's involvement when an open pocket knife is used.   Patently, the threat of extensive harm to a victim is more real in the case of the knife.

FOOTNOTES

1.   § 810.02(1)(a), Fla. Stat. (2001).

FARMER, J.

WARNER, J., concurs. STONE, J., concurs specially with opinion.