Emshwiller v. State

443 So. 2d 488

Opinion

443 So.2d 488 (1984)

Dude EMSHWILLER, Appellant,
v.
STATE of Florida, Appellee.

No. 83-1116.

District Court of Appeal of Florida, Second District.

January 13, 1984.

Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.

LEHAN, Judge.

For the following reasons we disagree with all three of appellant's contentions.

A BB gun is a deadly weapon within the meaning of section 784.045, Florida Statutes (1981). See Depasquale v. State, 438 So.2d 159 (Fla. 2d DCA 1983).

Under the particular facts shown by the record in this case, there was no error in the trial court's denial of defendant's motion for mistrial based upon a witness's general reference to other charges against defendant, about which the witness knew nothing. See Pait v. State, 112 So.2d 380, 385-86 (Fla. 1959). The testimony was in direct response to defense counsel's questions on cross-examination.

The question of whether the trial court properly retained jurisdiction for portions of the concurrent sentences was not raised below. See Brown v. State, 428 So.2d 369 (Fla. 5th DCA 1983).

AFFIRMED.

OTT, C.J., and BOARDMAN, J., concur.