Curtis DALE, Petitioner, v. STATE of Florida, Respondent, 703 So. 2d 1045

SHAW, Justice. We have for review Dale v. State, 669 So.2d 1112 (Fla. 1st DCA 1996), wherein the district court certified: Can a jury permissibly find a BB gun to be a deadly weapon and a defendant guilty of armed robbery when the evidence shows that the BB gun was found unloaded, without a C02 cartridge, and no evidence was presented that the BB gun was loaded at the time of the offense, where the defendant stated simply “I have a gun” during the commission of the robbery? Id. at 1113. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer in the affirmative and approve Dale.

Curtis Dale entered a bread store and pretended to buy a loaf of bread, but when the clerk opened the cash register, Dale said, “I got a gun,” raised his shirt, and showed a black object. After taking the money, Dale threatened, ‘You call anybody, I will be back.” He was arrested shortly later and police recovered a gas-operated BB or pellet gun, resembling a .9 mm Beretta pistol, hidden at a friend’s house with other items from the robbery. The gun was in working order, but was without BBs, pellets, or a gas cartridge.

Dale was convicted of armed robbery with a deadly weapon, and the district court affirmed, certifying the above question. Dale contends that a BB gun “is not a deadly weapon per se,” and that “on the deadly weapon continuum, a BB gun is more like a toy gun or fake gun.” The State, on the other hand, argues that a BB gun is a deadly weapon.

Section 812.13, Florida Statutes (1995), defines the crime of robbery, and provides in relevant part: (2)(

a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in [the penalty statutes]. (

b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in [the penalty statutes]. (

c) If in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree, punishable as provided in [the penalty statutes]. § 812.13, Fla. Stat. (1995). Although

section 812.13 fails to define the terms “firearm” and “weapon,” the

definitions for these terms contained in the Florida Standard Jury Instructions are a correct statement of the law: A “firearm” is legally defined as (adapt from F.S. 790.001 as required by allegations).[] A “weapon” is legally defined to mean any object that could be used to cause death or inflict serious bodily harm. Fla. Std. Jury Instr. (Crim.) 156(a). Whether a particular “weapon” is in fact deadly is a jury question: A “deadly weapon” has generally been defined to be one likely to produce death or great bodily injury.

Whether or not the weapon involved is to be classed as “deadly” is a factual question to be resolved by the jury under appropriate instructions. Goswick v. State, 148 So.2d 817, 820 (Fla. 1962), receded from on other grounds, State v. Smith, 240 So.2d 807 (Fla.1970). The issue posed here is whether the “deadliness” of a BB gun is properly a jury question, or whether a BB gun is so innocuous that it is always a non-deadly weapon as a matter of law.

Our review of pertinent caselaw reveals that Florida’s district courts have overwhelmingly concluded that a BB or pellet gun can be a deadly weapon, and that the issue of “deadliness” is a jury question. We agree with the district courts and hold that whether a BB or pellet gun is a deadly weapon — i.e., whether it is “likely to produce death or great bodily injury” — is a factual question to be answered by the jury in each case. Goswick, 143 So.2d at 820. The jury’s finding will be sustained on review if supported by competent substantial evidence.

In the present case, the jury had a sufficient basis for concluding that Dale’s weapon was deadly. Of key importance is the fact that the jury had an opportunity to view the weapon first-hand. Further, Officer Stone testified concerning the circumstances under which the gun was found and the condition it was in when found, and Investigator Corder showed the jury in detail how the gun operated. The fact that the gun was recovered without BBs, pellets, or gas cartridge is not dispositive. Competent substantial evidence supports the jury’s finding.

We answer the certified question in the affirmative and approve Dale. It is so ordered. KOGAN, C. J., and HARDING, WELLS and ANSTEAD, JJ., concur. GRIMES, J., concurs with an opinion. OVERTON, J., dissents with an opinion. . The parties do not argue, and we do not decide, whether a BB gun is a firearm. .

Section 790.001 defines "firearm” thusly: "Firearm” means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term "firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime. § 790.001(6), Fla. Stat. (1995). . See, e.g., Dale v. State, 669 So.2d 1112 (Fla. 1st DCA 1996) (whether a BB gun is a deadly weapon is a jury question); Gooch v.

State, 652 So.2d 1189 (Fla. 1st DCA 1995) (whether a BB gun is a deadly weapon is a jury question); State v. Jeffers, 490 So.2d 968 (Fla. 5th DCA 1986) (whether a pellet gun is a deadly weapon is a jury question); Duba v. State, 446 So.2d 1167 (Fla. 5th DCA 1984) (whether a BB gun is a deadly weapon is a jury question). See also Lynn v. State, 567 So.2d 1043 (Fla. 5th DCA 1990) (a pellet pistol can be a deadly weapon); In re W.M., 491 So.2d 1263 (Fla. 4th DCA 1986) (a BB gun is a deadly weapon); Emshwiller v. State, 443 So.2d 488 (Fla. 2d DCA 1984) (a BB gun is a deadly weapon); Depasquale v.

State, 438 So.2d 159 (Fla. 2d DCA 1983) (a BB gun can be a deadly weapon). . Cf. Bentley v. State, 501 So.2d 600, 602 (Fla.1987) ("Whether the gun in [the defendant's] possession was loaded or whether [the defendant] had available ammunition is irrelevant.”).