Rinzler v. Carson, No. 41065

CourtUnited States State Supreme Court of Florida
Writing for the CourtMASON; ROBERTS; CARLTON; ERVIN; ERVIN
Citation262 So.2d 661
PartiesLeonard RINZLER, Appellant, v. Dale CARSON, Appellee.
Docket NumberNo. 41065
Decision Date03 May 1972

Page 661

262 So.2d 661
Leonard RINZLER, Appellant,
v.
Dale CARSON, Appellee.
No. 41065.
Supreme Court of Florida.
May 3, 1972.

Page 663

Joseph M. Glickstein, Jr., Jacksonville, for appellant.

James C. Rinaman, Jr., David U. Tumin and J. Edward Wall, Jacksonville, for appellee.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., as amicus curiae.

MASON, Circuit Judge.

This is a direct appeal under the provisions of Section 4(2) of Article V of the Constitution of the State of Florida, F.S.A., from a summary final judgment of the Circuit Court of the Fourth Judicial Circuit in and for Duval County. We are asked to review the judgment on the assumption that in and by it the trial court initially passed upon the constitutionality of Section 790.221, Florida Statutes of 1969, F.S.A.

The judgment below was entered in a replevin suit wherein the appellant (plaintiff below) filed suit to recover possession of 'One Model MP 40, 9mm Erma SubMachine Gun, Serial No. 3040.'

The litigation arose from a rather peculiar and interesting state of facts. The appellant was the owner of the firearm in question and had registered it in accordance with the provisions of the National Firearms Act of 1968. He kept it in his place of business at 527 Main Street in the City of Jacksonville, Florida, and on or about September 2, 1969, a certain individual threatened to kill him with a deadly weapon. To protect himself, the appellant fired the submachine gun at his assailant's feet. As a result of the incident the appellee (defendant below), Sheriff of Duval County, arrested him on a charge of aggravated assault and simultaneously took possession of the gun in question. Subsequently, appellant was charged with aggravated assault in the Municipal Court of Jacksonville and with assault with the intent to commit murder in the Criminal Court of Record of Duval County. Both of these prosecutions terminated in favor of the appellant with the pending charges being dismissed. The state prosecution was nol prossed on June 5, 1970. The appellee sheriff had seized the gun to be used as evidence against the appellant under the provisions of Section 790.08, Florida Statutes, F.S.A. Following the dismissal of all charges against the appellant he made demand upon the appellee for the return of the gun.

After the arrest of the appellant and the seizure of the gun by the Sheriff and before

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the dismissal of the charges against appellant the Legislature of the State of Florida enacted Section 790.221, Florida Statutes, F.S.A., which became law on October 1, 1969. This section makes it 'unlawful for any person to own or to have in his care, custody, possession or control any short-barreled rifle, short-barreled shotgun, or machine gun which is, or may readily be made, operable.' There is expressly excepted from the provisions of this section 'antique firearms' and 'firearms in violation hereof which are lawfully owned and possesed under the provisions of federal law . . ..' It is conceded that the firearm is not an antique firearm within the definition of that term as defined by the aforesaid statute. Upon receipt of the demand for the return of the weapon the appellee sheriff refused to return the gun, citing as his reason therefor the enactment of Section 790.221, Florida Statutes, F.S.A., which became effective subsequent to his seizure of the gun, and also advising appellant that he has no right of possession in the gun, not only by virtue of the statute, but also by virtue of an ordinance of the City of Jacksonville, which made it unlawful for any person to possess, use, keep or store any submachine gun within the City of Jacksonville.

Upon the refusal of the sheriff to return the weapon to him appellant filed this replevin action on July 23, 1970. In his complaint, which is the usual and customary form of a replevin complaint, appellant alleges that he is lawfully entitled to the possession of the gun in question and that the appellee sheriff had possession and detained it from him in Duval County, Florida. The complaint is sworn to by appellant as plaintiff. To the complaint the appellee sheriff filed an answer in which he denied appellant's right of possession and also denied that he wasd in possession of the property at the time of the institution of the suit.

Replevin is a possessory action and the plaintiff must establish his right of possession as of the time of the filing of his suit. Whether he was entitled to the possession of the gun in question depends upon his right of possession at the time of filing the suit, which in turn is dependent on whether the gun was outlawed at that time.

When this appeal was first filed in this Court we had doubt as to our jurisdiction because the judgment of the trial court was in general terms and did not specifically state that the basis of the court's decision was a determination that appellant had no right of possession to the gun in question because of the operation of Section 790.221. That is to say, it was not evident from a perusal of the trial court's summary judgment that the court reached its conclusion by passing upon the constitutionality of the statute. Being in doubt as to whether the trial judge passed upon the validity of the statute, we temporarily relinquished jurisdiction to him for him to enter an order advising this Court specifically whether he had passed on the validity of the statute. The trial judge has by advisory order informed us that he did specifically and directly pass upon and upheld the validity of the statute, and that it was only through inadvertence that specific reference thereto was not included in the summary judgment. He further stated that his judgment in favor of the appellee and against the appellant was because of the prohibition contained in Florida Statute 790.221, F.S.A. Consequently, we have jurisdiction under the express provision of Section 4(2), Article V of the Florida Constitution of 1968 to review the trial court's judgment.

It is the position of the appellee that the judgment of the trial court may be upheld on the theory that the appellant failed to prove an essential allegation of his complaint, namely: that the appellee sheriff was in physical possession of the weapon in question at the time of the filing of the replevin suit. This position of appellee is predicated upon his assumption that the affidavits filed by him in support of his motion for summary final judgment in

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which he denied physical possession of the weapon, stating that it was in the physical possession of the...

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52 practice notes
  • Oefinger v. Zimmerman, Civ. A. No. 83-3013.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 19 Diciembre 1984
    ...Act contains a warning that the license does not exempt from state law." 293 F.Supp. at 421 footnotes omitted. In Rinzler v. Carson, 262 So.2d 661 (Fla. 1972), a state statute made possession of certain firearms unlawful, however, the state legislature specifically exempted from the operati......
  • Norman v. State, No. SC15–650
    • United States
    • United States State Supreme Court of Florida
    • 2 Marzo 2017
    ...one convicted of a felony, civil rights not restored, [was] a reasonable public safeguard." Id. at 855–56. Then, in Rinzler v. Carson , 262 So.2d 661 (Fla. 1972), this Court upheld a statute that barred the usage of an entire class of firearms, explaining that "[a]lthough the Legislature ma......
  • Robertson v. City and County of Denver, No. 93SA91
    • United States
    • Colorado Supreme Court of Colorado
    • 2 Mayo 1994
    ...Leonard, 36 Conn.Supp. 108, 413 A.2d 489 (1979) (right to bear arms subject to reasonable exercise of police power); Rinzler v. Carson, 262 So.2d 661 (Fla.1972) (right to bear arms subject to valid police power regulation); Carson v. State, 241 Ga. 622, 247 S.E.2d 68, 72 (1978) ("the questi......
  • 82 Hawai'i 143, State v. Mendoza, No. 17839
    • United States
    • Supreme Court of Hawai'i
    • 21 Junio 1996
    ...960 (1991); Fife v. State, 31 Ark. 455, 460 (1876); Rabbitt v. Leonard, 36 Conn.Supp. 108, 413 A.2d 489, 490 (1979); Rinzler v. Carson, 262 So.2d 661, 665-66 (Fla.1972); Landers v. State, 250 Ga. 501, 299 S.E.2d 707, 709 (1983); Carson v. State, 241 Ga. 622, 247 S.E.2d 68, 72 (1978); State ......
  • Request a trial to view additional results
52 cases
  • Oefinger v. Zimmerman, Civ. A. No. 83-3013.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 19 Diciembre 1984
    ...Act contains a warning that the license does not exempt from state law." 293 F.Supp. at 421 footnotes omitted. In Rinzler v. Carson, 262 So.2d 661 (Fla. 1972), a state statute made possession of certain firearms unlawful, however, the state legislature specifically exempted from the operati......
  • Norman v. State, No. SC15–650
    • United States
    • United States State Supreme Court of Florida
    • 2 Marzo 2017
    ...one convicted of a felony, civil rights not restored, [was] a reasonable public safeguard." Id. at 855–56. Then, in Rinzler v. Carson , 262 So.2d 661 (Fla. 1972), this Court upheld a statute that barred the usage of an entire class of firearms, explaining that "[a]lthough the Legislature ma......
  • Robertson v. City and County of Denver, No. 93SA91
    • United States
    • Colorado Supreme Court of Colorado
    • 2 Mayo 1994
    ...Leonard, 36 Conn.Supp. 108, 413 A.2d 489 (1979) (right to bear arms subject to reasonable exercise of police power); Rinzler v. Carson, 262 So.2d 661 (Fla.1972) (right to bear arms subject to valid police power regulation); Carson v. State, 241 Ga. 622, 247 S.E.2d 68, 72 (1978) ("the questi......
  • 82 Hawai'i 143, State v. Mendoza, No. 17839
    • United States
    • Supreme Court of Hawai'i
    • 21 Junio 1996
    ...960 (1991); Fife v. State, 31 Ark. 455, 460 (1876); Rabbitt v. Leonard, 36 Conn.Supp. 108, 413 A.2d 489, 490 (1979); Rinzler v. Carson, 262 So.2d 661, 665-66 (Fla.1972); Landers v. State, 250 Ga. 501, 299 S.E.2d 707, 709 (1983); Carson v. State, 241 Ga. 622, 247 S.E.2d 68, 72 (1978); State ......
  • Request a trial to view additional results

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