Gonsoulin v. State

642 So. 2d 146 | Fla. Dist. Ct. App. | 1994

COBB, Judge.

The issue posed by this appeal is whether the crime of carrying a concealed weapon is a necessarily lesser included offense of the crime of carrying a concealed firearm. The trial court refused to so instruct the jury and the appellant contends that this was error per se.

We agree with the trial judge based upon a Blockburger analysis¹ of the two offenses. By statutory definition the term “weapon” as used in section 790.01(1), Florida Statutes, excludes a firearm; therefore, the elements of the lesser offense (carrying a concealed weapon) are not encompassed by proof of the greater offense (carrying a concealed firearm). Based on the statutory language, the two offenses are mutually exclusive. See State v. Wimberly, 498 So.2d 929 (Fla.1986).

AFFIRMED.

W. SHARP and DIAMANTIS, JJ., concur.

1 . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).