Wolfram v. State, 89-965
| Decision Date | 25 October 1990 |
| Docket Number | No. 89-965,89-965 |
| Citation | 568 So.2d 992 |
| Parties | 15 Fla. L. Weekly D2661 John Patterson WOLFRAM, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Fleming Lee, Asst. Atty. Gen., Daytona Beach, for appellee.
John Patterson Wolfram appeals from his adjudication of guilt and his sentence for carrying a concealed weapon, classified by the court as a third-degree felony, following a jury verdict. We affirm the judgment, vacate the sentence, and remand for correction of the judgment to classify the crime as a misdemeanor and resentencing.
Wolfram, dressed in military camouflage fatigues and a heavy vest, was observed in the parking lot of a K-Mart store while he was returning a BB gun previously purchased at the store. The observer, believing the gun to be a .45-caliber pistol and seeing Wolfram place the gun underneath his vest before entering the store, immediately reported the incident to the police. When Wolfram exited the store about 15 minutes later, he was surrounded by police officers, placed against a wall, and searched. Unfortunately for Wolfram, the search revealed a loaded .22-caliber magnum derringer in his left front pants pocket. Wolfram told the officers he had a permit for the gun, but he was unable to produce it.
Wolfram testified at trial that he was having memory problems as a result of a fractured skull and concussions sustained in the past and that he was surprised when the officers found the derringer on his person. He also testified he believed he held a permit to carry a concealed weapon issued by his boss at a former job he held as a night security guard. The trial court excluded a permit proffered as evidence for lack of a proper predicate. The court also refused to instruct the jury upon the following instruction requested by Wolfram:
If you find the Defendant honestly and reasonably believe [sic] that he had lawful authority to carry a concealed firearm, and that belief was based on a fact about which the Defendant was mistaken, then you must find the Defendant not guilty.
The verdict form returned by the jury stated that Wolfram was guilty of carrying a concealed weapon. This is the most curious part of this appeal since the trial record reflects that:
1. The trial judge described the verdict form while charging the jury and quoted the language in it as stating:
2. The trial judge read the verdict of the jury as stating:
3. The jury form signed by the foreman of the jury states:
4. The trial court polled the jury as to whether the verdict as read by the 5. The written judgment entered by the court adjudicates Wolfram guilty of carrying a concealed weapon in violation of section 790.01, Florida Statutes (1987), and classifies it as a third-degree felony.
court was their verdict, and each one replied affirmatively.
(Emphasis added).
Wolfram appeals the denial of the requested instruction that would have required the jury to find him not guilty if they found he was mistaken about holding a gun permit. He also appeals his adjudication of guilt for a third-degree felony where the jury verdict form indicated he was guilty of carrying a concealed weapon, a misdemeanor.
Wolfram relies upon Thomas v. State, 526 So.2d 183 (Fla. 3d DCA), rev. denied, 536 So.2d 245 (Fla.1988), in support of his position that mistake is a defense and that he was entitled to a jury instruction on the first issue. In Thomas, the defendant, charged with the crime of robbery, asserted the defense that he believed the stolen object belonged to him. The third district observed that: "It is well settled that a well-founded belief in one's right to the allegedly stolen property constitutes a complete defense to a charge of theft." Id. at 184. Theft and robbery are malum in se crimes and require an element of intent to deprive another of his property. These crimes are distinguished from mala prohibita crimes where intent is inferred from the act. Judge Cowart's opinion in State v. Oxx, 417 So.2d 287 (Fla. 5th DCA 1982), explores the difference between the two types of crimes and concludes:
Unlike their common law counterparts, many ... [mala prohibita ] crimes result from neglect where the law requires care, or inaction where the law imposes a duty to act; they may not result in direct injury to persons or property but merely create a danger or possibility of danger that the law seeks to minimize.
Id. at 289 n. 4. Whether Wolfram intended to carry a concealed firearm in violation of the prohibition against concealment is immaterial as is his belief that he had a valid permit to carry the firearm. Knowledgeable possession of the concealed firearm is enough to constitute a violation. The legislature may dispense with intent as an element of a crime and prescribe punishment without regard to the mental attitude of an accused. State v. Dunmann, 427 So.2d 166 (Fla.1983).
To convict a person of the crime of carrying a concealed weapon, it must be shown, at a minimum, that the person charged knew he possessed the weapon, that he had it "on or about" his person. This knowledge of possession can be inferred from the act of actual possession. Oxx, at 291 n. 13. But while the proof of possession may create a prima facie case against a defendant, it is not conclusive, and a defendant may show that he had no knowledge of the possession. For example, he may show that without his knowledge some other person may have placed a gun in his clothing or in an article he was carrying.
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