Mitchell v. State (703 So. 2d 1062, 1997)

SHAW, Justice.

We have for review Mitchell v. State, 698 So.2d 555, 557 (Fla. 2d DCA 1997), wherein the district court certified:

If the State fails to prove that a BB pistol is loaded and operable at the time of an offense, can it be classified as a dangerous or deadly weapon when the defendant’s actions cause the victim to reasonably believe that the BB pistol is loaded and operable?

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We recently addressed this issue in Dale v. State, 703 So.2d 1045 (Fla.1997), wherein we held that whether a BB gun— loaded or unloaded — is a deadly weapon is a jury question. We approve Mitchell.

It is so ordered.

KOGAN, C.J., HARDING, WELLS and ANSTEAD, JJ., and GRIMES, Senior Justice, concur.

OVERTON, Justice,

dissenting.

“I dissent for the reasons expressed in my dissent in Dale v. State, 703 So.2d 1045 (Fla.1997).”