ROBERT RAY HOLMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
AFFIRMED.
DAUKSCH, C. J., and ORFINGER and SHARP, JJ., concur.
DAUKSCH, Chief Judge.
The motion for rehearing is granted and the suggestion that the principal question involved in the appeal be certified as one of great public importance is denied. The rehearing is granted so that this court can express its opinion that it is unnecessary for the state to prove that a short-barreled shotgun found in the possession of a defendant on trial for violation of section 790.221(1), Florida Statutes, was not an antique firearm. It is the holding of this court that the exception in that statute is a matter of defense rather than an essential element of proof. The defendant is obligated to show he falls within the exception allowing possession of an antique short-barreled shotgun rather than for the state to prove it was not an antique. State v. Kahler, 232 So. 2d 166, 168 (Fla.1970); Hernandez v. State, 289 So. 2d 16 (Fla. 3d DCA 1974); Benitez v. State, 172 So. 2d 520 (Fla. 2d DCA 1965).
With this clarification we certify this case to be in conflict with Thompson v. State, 378 So. 2d 859 (Fla. 1st DCA 1979).
MOTION FOR REHEARING GRANTED.
SUGGESTION FOR CERTIFICATION OF QUESTION DENIED.
ORFINGER and SHARP, JJ., concur.
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State v. Snell, 391 So. 2d 299 (Fla. 5th DCA 1980)…and this cause is remanded for further proceedings consistent with this opinion. QUASHED and REMANDED. DAUKSCH, C. J., and ORFINGER, J., concur. . Fla.R.App.P. 9.140(c)(1)(B). . See State v. Thompson, 390 So. 2d 715 (Fla.1980); Holmes v. State, 389 So. 2d 214 (Fla. 5th DCA 1980). . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . See Fla.R.Crim.P. 3.2200).…
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Robarge v. State, 432 So. 2d 669 (Fla. 5th DCA 1983)…which proscribes possession of such firearms, includes a proviso that “this section shall not apply to antique firearms.” The court held that this exception is a matter of defense rather than an essential element of proof. See also Holmes v. State, 389 So. 2d 214 (Fla. 5th DCA 1980). . It is on this point that the instant case is clearly distinguishable from Hicks v. State, 407 So. 2d 252 (Fla. 5th DCA 1981), rev’d, 421 So. 2d 510 (Fla.1982), wherein the supreme court ruled that non-consent to entry is not…
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Rodrigues Elijah Wright v. State, 174 So. 3d 558 (Fla. 4th DCA 2015)…t of the offense.” State v. Thompson, 390 So. 2d 715, 716 (Fla.1980) (footnote omitted) (affirming conviction under section 790.221, Florida Statutes (1977), barring short-barreled rifles, short-barreled shotguns, and machine guns); Holmes v. State, 389 So. 2d 214, 214 (Fla. 5th DCA 1980) (same). Further, [i]n passing on a motion for judgment of acquittal where a defendant has asserted an affirmative defense, “the proper test is to determine, first, whether the defendant produced competent evidence of an aff…
Authorities Cited
- State v. Kahler, 232 So. 2d 166 (Fla. 1970)
- Kelly v. Patek, 172 So. 2d 520 (Fla. 3d DCA 1965)
- Benitez v. State, 172 So. 2d 520 (Fla. 2d DCA 1965)
- Hernandez v. State, 289 So. 2d 16 (Fla. 3d DCA 1974)
- Heyward Thompson v. State, 378 So. 2d 859 (Fla. 1st DCA 1979)