67 So. 3d 409
Fla. Dist. Ct. App.2011Background
- Smith was charged with carrying a concealed firearm under 790.01(2).
- Deputy stopped Smith for speeding; license suspended prompted inquiry about weapons.
- Smith stated there was a firearm under the front passenger seat.
- Smith exited the vehicle; deputy retrieved the firearm after seven minutes, with backup and license check.
- Trial court granted Smith’s motion to dismiss based on the firearm not being on or about Smith when retrieved outside the vehicle.
- State appealed arguing facts show firearm was readily accessible; court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the firearm was on or about Smith or readily accessible when encountered | State contends firearm was readily accessible at encounter. | Smith contends firearm was not on or about him or readily accessible. | Yes; fact pattern closer to J.E.S.; not automatic to dismiss. |
| Standard of review for a motion to dismiss in a concealed firearm case | State argues prima facie case suffices. | Smith argues most favorable view still fails to show prima facie guilt. | De novo review; prima facie standard governs dismissal. |
| Applicability of Gehring/White/Lamb to this case | State relies on those cases to require dismissal. | Smith argues those precedents are distinguishable. | Gehring/White/Lamb distinguishable; facts closer to J.E.S. |
| Effect of defendant being outside the vehicle when firearm found | State contends concealment can exist even if outside. | Smith argues concealment requires on or about person. | Not controlling; factual distinction matters. |
| What the evidence shows about “on or about the person” under 790.001(2) | Evidence indicates firearm was under seat and within reach. | Evidence could show not on or about person. | Court held evidence could support on or about the person under the circumstances. |
Key Cases Cited
- Ensor v. State, 403 So.2d 349 (Fla. 1981) (two-part test: on or about the person and hidden from ordinary sight; not absolute invisibility required; ordinary sight excludes floorboard)
- Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996) (readily accessible determination; often favors defense when weapon not on or about person)
- White v. State, 902 So.2d 887 (Fla. 1st DCA 2005) (similar facts to Lamb; motion of acquittal appropriate where weapon not on or about person)
- J.E.S. v. State, 931 So.2d 276 (Fla. 5th DCA 2006) (distinguishable from Gehring/White; firearm may be on or about person when found during immediate search after removal)
- Gehring v. State, 937 So.2d 169 (Fla. 2d DCA 2006) (reversed conviction where firearm not simultaneously on or about person; distinguishable fact pattern)
- Hinkle v. State, 970 So.2d 433 (Fla. 4th DCA 2007) (premised on firearm readily accessible during vehicle stop; distinguished when defendant outside)
- Lopez v. State, 980 So.2d 1270 (Fla. 2d DCA 2008) (firearm under seat during lawful stop; charge sufficiently alleged on or about person)
- Evans v. State, 24 So.3d 1257 (Fla. 1st DCA 2009) (distinguished White/Lamb; appellant inside vehicle; firearm readily accessible before removal)