424 So. 2d 29 | Fla. Dist. Ct. App. | 1982
Dissenting Opinion
(dissenting).
The requirement that the firearm in question be on the person of or “readily accessible” to the defendant is imposed because the very purpose of forbidding carrying a concealed weapon is to prevent its being suddenly produced in an ambush-like manner to the surprise of another who was previously unaware that his antagonist was armed. Sutton v. State, 12 Fla. 135 (1867); Carlton v. State, 63 Fla. 1, 58 So. 486 (1912). I entirely agree with the trial court that, as a matter of law, a firearm which can be secured only by unzipping two separate containers could not possibly be employed in this fashion and thus does not fall within the statutory definition.
The majority bases its conclusion, not upon any quarrel with this position, but solely upon the supreme court’s statement in Ensor v. State, 403 So.2d 349 (Fla.1981) that
[t]he term ‘on or about the person’ means physically on the person or readily accessible to him. This generally includes the*31 interior of an automobile and the vehicle’s glove compartment, whether or not locked.
403 So.2d at 354. The Ensor decision itself concerned only the issue of concealment and the reference to the accessibility question, which contains no analysis and cites to no authority on the point, is the purest dictum. Moreover, the glove compartment situation is obviously not the one involved here. While Hoffman v. Jones
. 280 So.2d 431 (Fla.1973).
Lead Opinion
The undisputed facts reveal that the defendant, about to board a plane, placed his carry-on luggage, a closed, zippered canvas bag, on the conveyor belt at a security checkpoint at the Miami International Airport. The x-ray screening device disclosed what appeared to be a pistol inside the bag. A police officer unzipped the bag and found therein a zippered soft black gun bag containing a loaded Browning pistol. The defendant was charged with carrying a concealed firearm in violation of Section 790.-01(2), Florida Statutes (1981). The trial court, finding that these undisputed facts did not establish a prima facie case of guilt against the defendant, granted Molins’ sworn motion to dismiss. The State appeals. We reverse.
For an accused to be found guilty of the offense of carrying a concealed firearm, the firearm must not only be hidden from the ordinary sight of another person, as here, but must as well be “on or about the person,” Ensor v. State, 403 So.2d 349, 354 (Fla.1981). A firearm is considered “about the person” if it is “readily accessible” to him. Ensor v. State, supra. A firearm in a closed briefcase, see Rogers v. State, 336 So.2d 1233 (Fla. 4th DCA 1976), and one in a closed but unlocked center console of an automobile, see State v. Butler, 325 So.2d 55 (Fla. 3d DCA 1976), have been held to be sufficiently accessible to the person carrying the briefcase or seated next to the console for the purposes of the statute. While it is true that in order for the defendant to gain access to the firearm in the present case, he would have had to unzip two containers, in our view the firearm was not any less accessible than one in a locked glove compartment of a vehicle which, according to Ensor, may be considered, in the words of the statute, “about the person.”
Reversed and remanded.
. In 1982, the legislature amended the concealed weapon statute and provided, inter alia, that a firearm or other weapon in a vehicle’s glove compartment, whether or not locked, is by definition “securely encased,” and the possessor thereof does not violate Section 790.01. See Chapter 82-131, House Bill No. 1173, effective April 6, 1982. This amendment is applicable only to the possession of concealed firearms within the interior of a private conveyance. Moreover, thq offense herein occurred on November 24, 1981.
