STATE OF FLORIDA, APPELLANT,
v.
ELMUS R. SELLERS, APPELLEE
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Florida appealed the dismissal of a concealed weapon charge where the defendant's pistol had approximately a quarter-inch of its butt exposed. The court held that a weapon need not be completely hidden to be considered concealed, and that the question of whether a partially visible weapon constitutes a concealed weapon is a jury question rather than one for dismissal on motion.
A weapon need not be completely concealed to be considered a concealed weapon under Florida law. Where a weapon is carried such that an ordinary citizen viewing the accused would not see it clearly exposed as a weapon, the question of concealment should be left to the jury. The trial court's dismissal was therefore improper.
[1] A weapon is concealed when it is carried in such a manner that an ordinary citizen viewing the accused would not see the weapon clearly exposed as such.
[2] A partially exposed weapon may be considered a concealed weapon for the purposes of criminal statutes.
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Join FLexlaw to unlock all legal intelligence“The statute was not intended to infringe upon the rights of any citizen to bear arms for the 'common defense.' It merely directs how they shall be carried, and prevents individuals from carrying concealed weapons of a dangerous and deadly character, on or about the person, for the purpose of committing some malicious crime, or of taking some undue advantage over an unsuspecting adversary.”
Establishes the statutory purpose underlying Florida's concealed weapon law—to prevent the use of hidden weapons for criminal purposes while preserving the right to bear arms openly.
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Join FLexlaw to unlock all legal intelligenceA deputy responded to a call reporting a drunk person waving a gun. Upon arrival, the deputy observed a bulge in the defendant Sellers' pocket and, up…
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The trial court dismissed for factual insufficiency, under Cr.P.R. 3.190 (c)(4), 3 F.S.A., this charge of carrying a concealed weapon. We consider the question whether a pistol, the butt of which is exposed for about a quarter of an inch, could have been — (the jury will decide whether it was) — a concealed weapon within the meaning of Fla.Stat. § 790.-01(2), F.S.A. We hold that the charge was improperly dismissed.
The statute has been changed since our Supreme Court decided Sutton v. State, 1868, 12 Fla. 135, but we think the logic of that case still holds good:
“The statute was not intended to infringe upon the rights of any citizen to bear arms for the ‘common defense.’ It merely directs how they shall be carried, and prevents individuals from carrying concealed weapons of a dangerous and deadly character, on or about the person, for the purpose of committing some malicious crime, or of taking some undue advantage over an unsuspecting adver*398sary. When no such evil intentions possess the mind, men in vexed assemblies or public meetings, conscious of their advantage in possessing a secret and deadly weapon, often become insulting and overbearing in their intercourse, provoking a retort or an assault, which may be considered as an excuse for using the weapon, and a deadly encounter results, which might be avoided where the parties stand on a perfect equality, and where no undue advantage is taken.”
At that time the statute contained a proviso “that this law shall not be so construed as to prevent any person from carrying arms openly outside of all their (sic) clothes.” Th.Dig. 498, § 5. Although the proviso has been repealed, we would think a completely revealed weapon would not be a concealed weapon, and dismissal on motion would be proper. But it does not follow that a weapon, in order to be concealed, must be completely concealed. The deputy who made this arrest was responding to a call from one who claimed that a drunk person was waving a gun around. The deputy observed a bulge in Sellers’ pocket. He thought it was a gun. Closer, he observed the butt plate and a small part of the weapon exposed. We think this enough to go to the jury.
An annotation at 43 A.L.R.2d 492 collects the authorities, which reveal some division of opinion. We think that the proper rule is that where the weapon is carried in such a manner that an ordinary citizen viewing the accused would not see the weapon clearly exposed as such the question of concealment should be left to the jury.
Treating the notice of appeal as a petition for certiorari,1 we grant certiorari and quash the order dismissing the information.
LILES and BOARDMAN, JJ., concur.
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State v. Riocabo, 372 So. 2d 126 (Fla. 3d DCA 1979)…m. On that basis, the search of the car was not permissible. Christian v. State, supra, and State v. Day [Fla.App.], 301 So. 2d 469 (1st Dist. 1974) are controlling as to the definition of a concealed firearm rather than State v. Sellers [Fla.App.], 281 So. 2d 397 (2d Dist.1973) cited by the State.” The trial court’s determination upon questions of fact at a motion to suppress hearing will not be reversed unless clearly shown to be without basis in the evidence or predicated upon an incorrect application of…1 / 2
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Cope v. State, 523 So. 2d 1270 (Fla. 5th DCA 1988)…e steel handgun with wood-grain handle grips on the front seat of Cope’s truck. Officer Cutcher then also immediately recognized the black handgun from the frame sticking up. The other case relied upon by the trial court below was State v. Sellers, 281 So. 2d 397 (Fla. 2d DCA 1973). In that case, the defendant was carrying a pistol in his pocket with a quarter of an inch of the butt exposed, but apparently visible only upon close inspection by a police officer who was responding to a call that a drunk person…
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State v. Bethea, 409 So. 2d 1139 (Fla. 2d DCA 1982)…his car. While the position and visibility of the gun are not disputed, it was disputed whether the firearm was concealed. The disputed question of concealment goes to the trier of fact, which should have been a jury below. [*1141] State v. Sellers, 281 So. 2d 397 (Fla. 2d DCA 1973). The firearm need not be invisible to come within the statute’s meaning of concealment. Ensor v. State, 403 So. 2d 349 (Fla.1981). The lower court thus inappropriately resolved the disputed fact of concealment in favor of appellee…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Elliott Redden, Jr., 269 So. 2d 415 (Fla. 2d DCA 1972)
- Sutton v. State, 12 Fla. 135 (Fla. 1867)