State v. Smith

• Decision Date: 10 August 2011
• Docket Number: No. 4D10–1785.,4D10–1785.
• Citation: 67 So.3d 409
• Parties: STATE of Florida, Appellant,v.Michael SMITH, Appellee.
• Court: Florida District Court of Appeals

67 So.3d 409

STATE of Florida, Appellant,

v.Michael SMITH, Appellee.

No. 4D10–1785.

District Court of Appeal of Florida, Fourth District.

Aug. 10, 2011.

Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. McIntire, Assistant Attorney General, West Palm Beach, for appellant.Iman I. Abouelazm of Law Offices of Iman I. Abouelazm, P.A., Fort Lauderdale, for appellee.HAZOURI, J.

Michael Smith was charged by information with carrying a concealed firearm pursuant to section 790.01(2), Florida Statutes (2009). Smith filed a motion to dismiss, alleging as undisputed facts that he was operating his motor vehicle on July 11, 2009, when he was stopped by a sheriff's deputy for unlawful speed. Upon the realization that Smith's license was suspended, the deputy asked him whether he had any weapons or drugs in the vehicle. Smith informed the deputy that there was a firearm under the passenger seat.

At the deputy's request, Smith stepped out of his vehicle and accompanied the deputy to his patrol car where the deputy waited for backup and conducted a license check. Approximately seven minutes later, the deputy returned to Smith's vehicle and retrieved the firearm from under the front passenger seat.

At the hearing on the motion to dismiss, defense counsel argued that dismissal was warranted because the firearm was not “readily accessible” to Smith when the firearm was retrieved while he was outside the vehicle. The trial court granted Smith's motion to dismiss.

On appeal, the state argues the trial court erred in granting Smith's motion to dismiss because there was a prima facie case that the firearm was “readily accessible” to Smith at the time the deputy encountered Smith, and therefore Smith failed to set forth undisputed facts demonstrating that a prima facie case was not established. The state further argues that in order to prevail, Smith has to demonstrate that the weapon was not on or about his person, and that the weapon was not hidden from the ordinary sight of another person. The facts demonstrated that the weapon was under the seat beside Smith when he was approached by the deputy, and the deputy, knowing of this threat, asked Smith to exit the vehicle prior to retrieving it. We agree that the trial court erred and reverse.

In entering its order granting the motion to dismiss the trial court held:

The issue before the Court is one of the statutory interpretation of F.S. § 790.01, i.e., is under the passenger seat of a vehicle, when the Defendant is outside of his vehicle, “on or about his person.” In this particular case, under the undisputed facts, the firearm is not “on or about” the Defendant's person.

Accordingly, the Motion to Dismiss, filed pursuant to Rule 3.190(c)(4) of the Florida Rules of Criminal Procedure is GRANTED. State v. Hinkle, 970 So.2d 433 (Fla. 4th DCA 2007); Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996).

The standard of review on a motion to dismiss is de novo because “[t]he purpose of a motion to dismiss is to allow a pretrial determination of the law of the case when the facts are not in dispute.” State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002) (citing Styron v. State, 662 So.2d 965 (Fla. 1st DCA 1995)). On such a motion, the state “is required only to show a prima facie case,” and “is entitled to the most favorable construction of the evidence, and all inferences should be resolved against the defendant.” Id. (citation omitted). The motion to dismiss should be granted “only where the most favorable construction to the state would not establish a prima facie case of guilt.” Id. (citation omitted).

Section 790.01(2), Florida Statutes (2009), reads in pertinent part: “A person who carries a concealed firearm on or about his or her person commits a felony of the third degree.”

Concealed firearm is defined by section 790.001(2), Florida Statutes (2009): “ ‘Concealed firearm’ means any firearm, as defined in subsection (6), which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.”

In Ensor v. State, 403 So.2d 349 (Fla.1981), the supreme court held:

We ... find that absolute invisibility is not a necessary element to a finding of concealment under section 790.001. The operative language of that section establishes a two-fold test. For a firearm to be concealed, it must be (1) on or about the person and (2) hidden from the ordinary sight of another person. The term “on or about the person” means physically on the person or readily accessible to him. This generally includes the interior of an automobile and the vehicle's glove compartment, whether or not locked. The term “ordinary sight of another person” means the casual and ordinary observation of another in the normal associations of life. Ordinary observation by a person other than a police officer does not generally include the floorboard of a vehicle, whether or not the weapon is wholly or partially visible.

These statements are not intended as absolute standards. Their purpose is to make it clear that a weapon's possible visibility from a point outside the vehicle may not, as a matter of law, preclude the weapon from being a concealed weapon under section 790.001. Similarly, a weapon's location in some extreme part of the vehicle's interior may be such that the trier of fact finds the weapon to be not “about the person,” and thus not concealed. In all instances, common sense must prevail. The critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm. The ultimate decision must rest upon the trier of fact under the circumstances of each case.

Id. at 354–55.

In Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996), an officer, in response to a BOLO, followed the defendant's vehicle to his home. The defendant testified that when he arrived home, he removed his firearm from the front seat and placed it beneath the driver's seat. The defendant then locked the car and walked toward his home. The defendant realized he did not have his house key and was unable to enter. The officer lost sight of the defendant for thirty seconds and when the defendant reappeared, “he was nonchalantly walking out of his carport.” Lamb, 668 So.2d at 667. The officer ordered the defendant to raise his hands and handcuffed him because he was concerned he might be armed. He was taken to the hospital due to an injury which occurred prior to the BOLO. The police returned with the defendant to his home and asked where the firearm was. He told them it was under the seat of the vehicle. They charged him with carrying a concealed firearm, among other things. He was found guilty. On appeal, in determining whether the firearm was “ ‘on or about the person’ [which] means physically on the person or readily accessible to him,” id. at 667–68 (citations omitted), the Second District held:

The trial court had to decide whether as a matter of law the firearm was “readily accessible.” At the time of his arrest, we conclude as a matter of law that the appellant's firearm was not readily accessible to him. We agree with the appellant that no view of the undisputed evidence supports the conclusion that he carried a concealed firearm “on or about his person” in this instance. We, therefore, hold that the trial court erred in its denial of the appellant's motion for judgment of acquittal as to the charge of carrying a concealed firearm and reverse said conviction and set aside the judgment and sentence therefor.

Id. at 668.

In White v. State, 902 So.2d 887 (Fla. 1st DCA 2005), the undisputed evidence showed that although the defendant “had previously occupied the vehicle in which the firearm was found, and which he admitted was his, he was standing outside the automobile at the time the searching officer recovered the weapon within it. Only after the revolver was seized was appellant arrested for its possession.” Id. at 888. Citing Lamb, the First District held that the defendant's motion for judgment of acquittal should have been granted because the essential facts were practically identical to those in Lamb and the undisputed evidence did not support a finding that the defendant carried a concealed weapon on or about his person.

In J.E.S. v. State, 931 So.2d 276 (Fla. 5th DCA 2006), rev. denied, 941 So.2d 1171 (Fla.2006), two officers on patrol in their unmarked vehicle were being tailgated. At a red light, the officers got out and approached the vehicle tailgating them. One officer smelled burning marijuana inside the vehicle. There were three people in the car and the defendant was in the back seat. The officer took each of the individuals out of the car one at a time and searched each of them. He made them sit on the curb. He found leafy pieces and seeds of marijuana throughout the car and while searching, he found a handgun under the front passenger seat. “When he put the handgun on the roof of the car, J.E.S. made a spontaneous statement that the handgun belonged to him” and he found it in a ditch earlier that day. Id. at 277. The trial court adjudicated him guilty. J.E.S. filed a motion for reconsideration arguing that he was not guilty “because the weapon was found in the car after he was removed from the vehicle and, therefore, he did not have actual or constructive possession of the firearm.” Id. The trial court denied the motion and the defendant appealed. He argued “that when a gun is found in an empty vehicle, an accused cannot be convicted of carrying a concealed firearm even if he admits to ownership of the firearm,” relying on White. Id. at 278.

The Fifth District quoted at length from White and Lamb. The court in White said the facts therein were practically identical to Lamb. However, in J.E.S., the court concluded that the facts therein were distinguishable from White and Lamb because J.E.S. had just...