Public-domain · open source
OpenJurist

388 So. 2d 259

Docket No. 79-949/T4-523.

McDaniels v. State

Joseph Lavone McDANIELS, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided August 27, 1980.

Rehearing Denied September 29, 1980.

District Court of Appeal of Florida · decided 1980-08-27

Key passage — most relied on by later courts

“[j]udicial notice may be taken of matters that are commonly known, but may not be used to dispense with proof of essential facts that are not judicially cognizable”

quoted by 2 later decisions, including Cordova v. State, Richardson v. State

“flatly prohibits a shotgun when the barrel or barrels are less that 18 inches regardless of the overall length of the gun. Then to prevent the cutting down of the other end of the gun, namely the stock and thus enabling its concealment on the person, it prohibits any modified or altered shotgun having an overall length of less than 26 inches. We think the learned trial judge clearly understood this when he said, in replying to defense counsel’s argument that any shotgun manufactured as a shotgun with no alterations but with a barrel less than 18 inches long was not prohibited by the statute “but when you get into modifying it and changing it around then the statute refers to the overall length of it. So you can have a short barreled ... you can saw off a shotgun to 6 inches as long as you put a long stock on it? It’s not an illegal shotgun? No way”.”

quoted by 1 later decision, including State v. Graham

Relies on Burks v. United States · Amos v. Mosley · 359 So. 2d 446 - Purifoy v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1980-08-27

How this case has been cited

Cited by 7 later decisions — most recently November 2020

7 state decisions

3019801990200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*260 Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.

¶2Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Daytona Beach, for appellee.

¶3COBB, Judge.

¶4Appellant was charged with robbery,[1] armed robbery,[2] and possession of a short-barrelled shotgun[3] arising from three separate incidents. By statutory definition, a short-barrelled shotgun has a barrel length of less than 18 inches or an overall length of less than 26 inches.[4]

¶5During the trial, the state introduced the shotgun into evidence. It has a barrel length of approximately 16 inches and an overall length of approximately 25 inches.[5] At the close of the trial, the appellant moved to dismiss the possession of a short-barrelled shotgun charge on the ground that the state had failed to introduce any evidence as to either the length of the barrel of the shotgun or the overall length of the shotgun. The trial court denied the motion on the rationale that the jury had the actual gun to look at and that the trial court was taking judicial notice that it is a matter of common knowledge as to how long 18 inches is.

¶6Appellant was convicted as charged on all three counts and sentenced to three consecutive sentences. Appellant appeals the judgment and sentence imposed for possession of a short-barrelled shotgun and contends that the trial court erred in denying the appellant's motion to dismiss that charge.

¶7Showing the length of the shotgun or its barrel is an essential element of possession of a short-barrelled shotgun and must be proved. Cf. Purifoy v. State, 359 So.2d 446 (Fla. 1978); McIntire v. State, 381 So.2d 1154 (Fla. 5th DCA 1980).

¶8Judicial notice may be taken of matters that are commonly known, but may not be used to dispense with proof of essential facts that are not judicially cognizable. Amos v. Moseley, 74 Fla. 555, 77 So. 619 (1917); Moore v. Choctawhatchee Elec. Co-Op, Inc., 196 So.2d 788 (Fla. 1st DCA 1967). Without the assistance of testimony or a *261 measuring device, we do not believe that the common person can look at a shotgun barrel that is about 16 inches in length and know to the exclusion of a reasonable doubt that the barrel is less than 18 inches. Nor do we believe that the common person can look at a shotgun that is approximately 25 inches in length and know to the exclusion of a reasonable doubt that it is less than 26 inches. Under these circumstances, the trial court abused its discretion in taking judicial notice of these unproved elements and we, therefore, reverse the judgment and sentence of the appellant for possession of a short-barrelled shotgun and remand this case with directions that the trial court order a judgment of acquittal as to this count only. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

¶9REVERSED and REMANDED.

¶10FRANK D. UPCHURCH and SHARP, JJ., concur.

NOTES

¶11[1] Section 812.13(2)(c), Florida Statutes (1977).

¶12[2] Section 812.13(2)(a), Florida Statutes (1977).

¶13[3] Section 790.221, Florida Statutes (1977).

¶14[4] Section 790.001(10), Florida Statutes (1977).

¶15[5] Rather than sending this court the actual shotgun, the clerk of the trial court has sent us three poorly lit photographs of the shotgun that were taken after the trial. The photographs show the shotgun with a tape measure lying on the shotgun.

/388/so2d/259 · .json · Public domain