STATE OF FLORIDA, APPELLANT,
v.
KENT ARTHUR MURRAY, JR., APPELLEE
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Florida appealed the dismissal of a charge that the defendant carried a concealed firearm during the commission of a felony. The court held that the statutory exemption in Section 790.25 for firearms in closed, secured containers does not apply to the charge of carrying a concealed weapon during felony commission, and reversed the dismissal.
The exemption in Section 790.25(7) does not apply to carrying a concealed weapon during the commission of a felony because: (1) the exemption only permits possession of firearms without a license under specified circumstances, not carrying concealed firearms; (2) there is no license available for carrying concealed firearms during felony commission; and (3) Section 790.25(2)(a) explicitly excludes protections for violations of Section 790.07.
[1] A firearm carried in a closed briefcase can constitute a concealed firearm for the purposes of Florida Statutes Section 790.01(2).
[2] Carrying a firearm in a closed briefcase during the commission of a felony violates Florida Statutes Section 790.07.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“one who carries a firearm in a closed briefcase can be guilty of carrying a concealed weapon during the commission of a felony in violation of Section 790.07, Florida Statutes (1977)”
Establishes the core holding that transporting a firearm in a closed container does not exempt one from the concealed weapon during felony charge.
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Join FLexlaw to unlock all legal intelligenceThe defendant attempted to board a flight at Palm Beach International Airport with a closed, locked briefcase containing a pistol. An x-ray security a…
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HERSEY, Judge.
This is an appeal by the state from an order dismissing Count Y of an Information. The charge involved is carrying a concealed firearm during the commission of a felony in violation of Section 790.07, Florida Statutes (1977).
As appellee prepared to board an early morning flight at Palm Beach International Airport he passed his' closed and locked briefcase through an x-ray security device located at the aircraft boarding gate. The x-ray attendant observed the outline of a pistol in the briefcase whereupon law enforcement officers seized the briefcase. Appellee was consequently detained and searched by a deputy sheriff who discovered a small packet of cocaine in one of appel-lee’s shoes. Appellee was charged with the felony of possession of cocaine and the felony of carrying a concealed weapon during the commission of a felony. Dismissal of the latter count produced this appeal.
We reiterate our previous holding that one who carries a firearm in a closed briefcase can be guilty of carrying a concealed firearm in violation of Section 790.-01(2), Florida Statutes (1977). Rogers v. State, 336 So. 2d 1233 (Fla. 4th DCA 1976). Ipso facto, one who carries a firearm in a closed briefcase can be guilty of carrying a concealed weapon during the commission of a felony in violation of Section 790.07, Florida Statutes (1977).
The dismissal of the charge of carrying a concealed weapon during the commission of a felony was based upon the trial court’s interpretation of a portion of Section 790.25, Florida Statutes (1977), which provides in pertinent part:
EXCEPTIONS. — The provisions of ss. 790.05 and 790.06 shall not apply in the following instances and, despite said sections, it shall be lawful for the following persons to own, possess, and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes:
* * * St * sj:
(7) Any person traveling by private conveyance when the weapon is securely encased, or in a public conveyance when the weapon is securely encased and not in person’s manual possession; .
We hold that this exception (or, more properly, exemption) has no application to the facts of this case. That this is so is aptly demonstrated by examination of the language of the statute.
First, the exemption allows certain individuals under specified circumstances to be in possession of firearms without incurring the penalties for carrying or possessing them without a license. It does not, under any circumstances, permit carrying concealed firearms.
Second, there is no such thing as a license to carry a concealed firearm during the commission of a felony. Accordingly, there can be no exception to the requirement of a license.
Finally, Section 790.25(2)(a) specifically provides that the protections afforded by Section 790.25 “shall not apply to . any person using weapons or firearms in violation of . . . ” Section 790.07.
Having reached the conclusion that the exception does not apply, it is unnecessary to consider whether portions of Chapter 790 may be vulnerable to attack on constitutional grounds since the sections of the statute which apply here are clear and definite.
Therefore, we reverse the order of the trial court dismissing Count V of the Information and remand this cause to the trial court for such further proceedings as may be appropriate by virtue of this opinion.
REVERSED AND REMANDED.
BERANEK and HURLEY, JJ., concur.
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Citator
Cited By
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Zaner v. State, 444 So. 2d 508 (Fla. 1st DCA 1984)…on” within the statute making it an offense to carry a concealed firearm (Section 790.01, Florida Statutes (1981)) means "physically on the person or readily accessible to him.” Ensor v. State, 403 So. 2d 349, 354 (Fla.1981); and in State v. Murray, 382 So. 2d 1372 (Fla. 4th DCA 1980), the court reiterated its previous holding that the statute can be violated by one who carries a firearm in a closed briefcase. . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).…
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Cates v. State, 408 So. 2d 797 (Fla. 2d DCA 1982)…section 790.25(3) only eliminate the need for obtaining a license under sections 790.05 and 790.06, Florida Statutes (1979), and that they are inapplicable to prosecution for carrying a concealed weapon under section 790.01. Accord, State v. Murray, 382 So. 2d 1372 (Fla. 4th DCA 1980). However, if this is so, it overlooks the fact that section 790.-06 pertains to licenses for carrying concealed pistols and that the appellate courts of Florida have often recognized that the section 790.25(3) exceptions are appl…
Authorities Cited
- Knotts v. State, 336 So. 2d 1233 (Fla. 1st DCA 1976)