B.J.G., a Juvenile v. the State of Florida

• Court: District Court of Appeal of Florida
• Decided: October 30, 2024
• Docket: 3D2023-1828
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 30, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-1828 Lower Tribunal No. J22-1519 ________________

B.J.G., a juvenile, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Orlando A. Prescott, Judge.

Carlos J. Martinez, Public Defender, and Andrew Stanton, Special Assistant Public Defender, and Anaidys D. Hernandez Fuentes, Certified Legal Intern, for appellant.

Ashley Moody, Attorney General, and Sandra Lipman, Senior Assistant Attorney General, for appellee.

Before LOGUE, C.J., and EMAS and SCALES, JJ.

PER CURIAM. Affirmed. See § 790.001(6), Fla. Stat. (2022) (defining “firearm” as “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.”) (emphasis added); Floyd v. State,

569 So. 2d 1225, 1232 (Fla.1990) (holding officers’ lay opinion testimony

that, inter alia, victim’s injuries were consistent with a struggle and murder

was committed by a “creep-in burglar,” were admissible: “Lay witness

opinion testimony is admissible if it is within the ken of an intelligent person

with a degree of experience. . . . We find the officers' testimony within the

permissible range of lay observation and ordinary police experience.”)

(internal citation omitted); L.L. v. State, 189 So. 3d 252, 257 (Fla. 3d DCA

2016) (citing Gonzales v. State, 95 So. 3d 1002, 1004 (Fla. 3d DCA 2012)

(“The opinion must be based on personal knowledge of the facts underlying

the opinion. . . . The lay witness may not rely on hearsay in forming an

opinion, but the witness may base the opinion on what the witness has

perceived.”) (internal citation omitted); Jones v. State, 440 So. 2d 570, 574

(Fla. 1983) (rejecting defendant’s argument that officer was unqualified to

testify to his opinion that a mark on the window sill was made by the recoil of

a high powered rifle: “Officer Mundy possessed a working knowledge of

2 firearms gained through his training as a police officer and through his

extensive work as an evidence technician. It was well within his realm of

experience to offer the trier of fact his opinion as to this origin of the mark on

the ‘stash house’ window sill.”) See also State v. Altman, 432 So. 2d 159,

160 (Fla. 3d DCA 1983) (“When we return to the definition of a firearm under

Section 790.001(6), it is clear that the legislature intended to denounce

separately the carrying of ‘any weapon which . . . may readily be converted

to expel a projectile by the action of an explosive’ or ‘the frame or receiver of

any such weapon.’ Defendant's hammer, handle, and barrel assembly, a

pistol without a cylinder and without the pin which holds the cylinder, fits

within this definition and therefore constitutes a firearm. Although

defendant's pistol was not operable until the missing parts were added,

operability is not a determinative factor in defining a firearm.”); Machado v.

State, 363 So. 2d 1132, 1137 (Fla. 3d DCA 1978) (rejecting argument that

State failed to prove the pistol introduced into evidence was actually a firearm

under section 790.001(6): “[O]perability is not a determinative factor in

defining a firearm. Additionally, the two arresting officers described the

weapon at trial as a ‘9 mm automatic pistol, loaded,’ and a pistol is a firearm.

Further, the weapon was introduced into evidence and the trial judge, as trier

of fact, had ample opportunity to inspect the gun and make a determination

3 as to whether Section 790.001(6) was applicable.”) (internal citations

omitted).