STATE OF FLORIDA, APPELLANT,
v.
ELTON E. ENSOR, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Florida appealed the trial court's dismissal of a concealed firearm charge, arguing that the trial court erred in finding an inconsistency between the State's 'plain view' theory and the concealed firearm charge. The appellate court held that an object may be partially visible while still constituting a concealed firearm, reversing the dismissal.
A firearm need not be entirely concealed to violate the concealed firearm statute; a weapon may be partially visible and still constitute a concealed firearm. The terms 'plain view' and 'concealed' are not mutually exclusive. The question for the trial court is whether the firearm could have been concealed from the ordinary sight of another person such that it would not be recognized as a firearm, which presents a jury question of fact.
[1] A portion of an object may be in plain view while the unseen portion supports a reasonable inference that the object is a concealed firearm.
[2] A firearm need not be entirely concealed to be considered a prohibited concealed firearm.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although it would appear that something which was in plain view could not also be concealed, and thus an inconsistency would exist in the instant case if both the motion to suppress and motion to dismiss were denied, we feel the terms 'plain view' and 'concealed' are not necessarily mutually exclusive.”
Establishes the core holding that plain view and concealment are not mutually exclusive concepts.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEnsor was stopped for a traffic offense after dark and ordered from his vehicle. A police officer used a flashlight to observe an object protruding fr…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Concealed Firearm cases and more on FLexlaw
DWIGHT L. GEIGER, Associate Judge.
Appellee herein was charged by information with carrying a concealed firearm in violation of § 790.01, Fla.Stat. (1977). The trial court granted his motion to dismiss, and the State appealed.
Prior to entertaining the motion to dismiss, the Court had denied a motion to suppress based upon the State’s contention that the firearm was in plain view. Apparently finding an inconsistency between the State’s position of “plain view” and the charge of a concealed firearm, the Court granted the Appellee’s motion to dismiss.
The facts upon which the motion to dismiss was granted are as follows: Appellee was stopped after dark for a traffic offense and ordered from his car. A police officer, using his flashlight, saw an object protruding from under the front seat. At that time he could not identify the object, but upon closer examination by looking through the open door, he determined the object to be a firearm.
Although it would appear that something which was in plain view could not also be concealed, and thus an inconsistency would exist in the instant case if both the motion to suppress and motion to dismiss were denied, we feel the terms “plain view” and “concealed” are not necessarily mutually exclusive.
In the case of Powell v. State, 369 So. 2d 108 (Fla. 1st DCA 1979), the Court held that a firearm does not need to be entirely concealed in order to be a prohibited concealed firearm. In State v. Sellers, 281 So. 2d 397 (Fla. 2d DCA 1973) the Court there indicated that in cases where the facts show the weapon could have been a concealed weapon a jury question exists. The Sellers court ruled that a weapon need not be completely concealed, but may be, as here, slightly visible and still be a concealed weapon.
Based upon the above cases we specifically hold that a portion of an unidentified object may be in plain view and yet a reasonable inference can be raised that the unseen portion is such that the object is a concealed firearm within the intent of § 790.01 Fla.Stat. (1977). The question the trial court must ask in ruling on a motion to dismiss in this type of case is whether the firearm could have been concealed from the ordinary sight of another person and thus not be recognized as a firearm. In the instant case we feel the answer is yes, and a question of fact is presented whether the firearm was concealed. The trial judge was in error in granting Appellee’s motion to dismiss. The cause is reversed and remanded for reinstatement of the information and trial.
REVERSED and REMANDED.
ANSTEAD and MOORE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Elton E. Ensor v. State, 403 So. 2d 349 (Fla. 1981)…OVERTON, Justice. This is a petition for certiorari to review a decision of the Fourth District Court of Appeal, State v. Ensor, 375 So. 2d 13 (Fla. [*351] 4th DCA 1979), which we find directly conflicts with Porchay v. State, 321 So. 2d 439 (Fla. 1st DCA 1975); Christian v. State, 303 So. 2d 405 (Fla. 3d DCA 1974), cert. denied, 314 So. 2d 778 (Fla.1975); and State v. Day, 301 So. 2d 469…
-
McGRAW v. State, 404 So. 2d 817 (Fla. 1st DCA 1981)…le. Both officers testified they immediately recognized the object partially covered by the wet suit as a pistol. In resolving the question in our previous decision, we considered the holding of the Fourth District Court of Appeal in State v. Ensor, 375 So. 2d 13 (Fla. 4th DCA 1979), but found the facts in the instant case distinguishable from those in Ensor. The basis for that distinction was that, here, the officers immediately recognized the object as a firearm, and thus it was not a concealed firearm, wh…
-
McGRAW v. State, 387 So. 2d 444 (Fla. 1st DCA 1980)…stol. While Richardson might not have been able to see the firearm from one side, he clearly saw the firearm from the passenger side. It is obvious that an object might be seen better from one angle than another. The state relies on State v. Ensor, 375 So. 2d 13 (Fla. 4th DCA 1979), for the proposition that concealed does not mean totally concealed from sight. Ensor, supra held: [Tjhat a portion of an unidentified object may be in plain view and yet a reasonable inference can be raised that the unseen port…
Authorities Cited
- State v. Elmus R. Sellers, 281 So. 2d 397 (Fla. 2d DCA 1973)
- Gallant v. Rape, 369 So. 2d 108 (Fla. 4th DCA 1979)
- Powell v. State, 369 So. 2d 108 (Fla. 1st DCA 1979)