State v. Sellers, 73--25
| Decision Date | 17 August 1973 |
| Docket Number | No. 73--25,73--25 |
| Citation | 281 So.2d 397 |
| Parties | STATE of Florida, Appellant, v. Elmus R. SELLERS, Appellee. |
| Court | Florida District Court of Appeals |
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellant.
Edward D. Foreman, St. Petersburg, for appellee.
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 this 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 adversary.
When no such evil intentions possess the mind, men in vexed assemblies or public meetings, concious 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 Although the proviso has been repealed, we would think a Completely revealed weapon would not be a concealed weapon, and dismissal on motion would be proper.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 waiving 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...
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Commonwealth v. Montgomery
...that "some portion of the handle" of the weapon may have been visible renders it "no less a concealed weapon"); State v. Sellers , 281 So.2d 397, 398 (Fla. Dist. Ct. App. 1973) (holding that "where the weapon is carried in such a manner that an ordinary citizen viewing the accused would not......
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Cope v. State, 87-798
...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 ......
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State v. Riocabo, 78-453
...(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 The trial court's determination upon questions of fact at a motion to suppress hearing will not be reverse......
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State v. Williams, 80-1402
...established a prima facie case of guilt against the defendant. 2 State v. Riocabo, 372 So.2d 126 (Fla. 3d DCA 1979); State v. Sellers, 281 So.2d 397 (Fla. 2d DCA 1973). See also Oliver v. State, 393 So.2d 1191 (Fla. 3d DCA 1981); Compare Powell v. State, 369 So.2d 108 (Fla. 1st DCA 1979); C......