253 So. 3d 1196
Fla. Dist. Ct. App.2018Background
- Appellant (Wiggins) was convicted of "possession of a concealed weapon by a convicted felon" under section 790.23(1), Florida Statutes, and appealed.
- The information and jury instructions repeatedly used the phrase "possession of a concealed weapon by a convicted felon," though section 790.23(1) criminalizes "have in care, custody, possession, or control any firearm… or to carry a concealed weapon."
- Section 790.001 defines "concealed firearm," "concealed weapon," "firearm," and "weapon," with subsection (13) listing "weapon" and carving out "except a firearm…" while subsection (6) defines "firearm" as a weapon that expels a projectile.
- Appellant argued a firearm is not a "weapon" under the statute and thus cannot be a "concealed weapon," and also argued the jury convicted him of a nonexistent crime (possession of a concealed weapon) because the correct statutory offense is "carrying a concealed weapon by a convicted felon."
- The court rejected the argument that a firearm is not a weapon (finding statutory definitions and precedent show firearms are deadly weapons), but held the mislabeling and inclusion of possession definitions in the jury instructions created fundamental error because the jury could have convicted of the broader, nonexistent offense.
- The conviction was reversed and remanded for a new trial on the proper offense, "carrying a concealed weapon by a convicted felon." All other issues raised on appeal were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a firearm is a "concealed weapon" under §790.001(3)(a) | Firearms are excluded from the statutory definition of "weapon" and thus cannot be "concealed weapon" | Statutory definitions (including §790.001(6)) and precedent treat firearms as deadly weapons | Rejected; firearms are "weapons"/deadly weapons and can be "concealed weapons" |
| Whether charging/instructing on "possession of a concealed weapon by a convicted felon" (nonexistent offense) was fundamental error | Repeated use of "possession" label and inclusion of possession definitions could allow conviction of nonexistent, broader offense | Jury instructions tracked elements of the correct offense and thus no reversible error | Reversed: erroneous labeling and possession definitions in instructions constituted fundamental error; remand for retrial on correct offense |
| Whether retrial violates double jeopardy after conviction for nonexistent offense | Conviction of nonexistent offense bars retrial | Nonexistent offense includes all elements of correct offense; retrial permitted | Retrial on correct offense does not violate double jeopardy; remand for new trial |
Key Cases Cited
- Baldwin v. State, 857 So.2d 249 (Fla. 2003) (Second District decision holding a gun is not a "weapon" under §790.001(13), discussed and distinguished)
- James v. State, 16 So.3d 322 (Fla. 4th DCA 2009) (reasoning that mislabeling an offense and adding broader possession definitions can lead to conviction of a nonexistent crime)
- Achin v. State, 436 So.2d 30 (Fla. 1983) (no one may be convicted of a nonexistent crime)
- Parrish v. State, 66 So.3d 1030 (Fla. 1st DCA 2011) (a deadly weapon is one likely to cause death or great bodily injury; firearms qualify)
- State v. Williams, 10 So.3d 1172 (Fla. 3d DCA 2009) (a firearm, by definition, is a deadly weapon)