STATE OF FLORIDA, PETITIONER,
v.
HEYWARD THOMPSON, RESPONDENT
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The Florida Supreme Court reversed the First District Court of Appeal's decision that the state must prove a firearm is not an antique as an element of the crime of possessing a short-barreled shotgun. The Court held that whether a weapon qualifies as an antique is an affirmative defense that the defendant must prove, not an element the prosecution must disprove.
The Court held that whether a proscribed weapon is an antique is a matter of defense, not an element of the offense that the state must prove. The state is not required to prove the negative—that the weapon is not an antique—as part of its case-in-chief.
[1] Whether a proscribed weapon is an antique is a matter of defense, and the state is not required to prove the negative as an element of the offense.
[2] In a statutory offense, whether a particular matter is one of defense or an element of the crime depends on the words of the statute.
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“if there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause, or subsequent statute, that is a matter of defense, and is to be shown by the other party.”
Establishes the rule from Baeumel v. State for determining whether an exception to a statute is an element the prosecution must disprove or an affirmative defense
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Join FLexlaw to unlock all legal intelligenceHeyward Thompson was convicted by a jury of possession of a short-barreled shotgun in violation of Florida Statute § 790.221. The charged statute proh…
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McDonald, justice.
The First District Court of Appeal has certified its decision in Thompson v. State, 378 So. 2d 859 (Fla. 1st DCA 1979), as passing on a question of great public interest because that decision will affect a Florida standard jury instruction in criminal cases. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution (1972), and reverse the district court’s decision.
A jury convicted Thompson of possession of a short-barreled shotgun in violation of section 790.221, Florida Statutes (1977).1 The district court reversed his conviction, holding that the state needed to prove, as an element of the crime, that Thompson’s shotgun was not an antique weapon. To support its holding, the court quoted the following general rule, as stated in Baeumel v. State:
if there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause, or subsequent statute, that is a matter of defense, and is to be shown by the other party.
378 So. 2d at 860.
Immediately preceding the above-quoted rule, however, the Baeumel court set out the other part of that rule:
“In a statutory offense, it depends very much, though not exclusively, on the words of the statute, whether a particular matter is one of defense, or whether the negative of the matter enters into the definition of the crime . .. . ”
26 Fla. at 75, 7 So. at 372 (quoting Bishop on criminal law). After citing the complete rule, the court held that whether Baeumel was a druggist was a matter of defense, not an element which the state had to disprove, notwithstanding the relative locations of the definition and the exception in the statute.
Looking at the words of the instant statute, we find the antique weapon proviso to be an exception just as much as the exception in 790.221(3).3 We cannot determine the reason for placing that exception in the statute’s first subsection, but we also cannot divine any legislative intent that lack of an exemption is an element of the offense. See State v. Buchman, 361 So. 2d 692 (Fla.1978). We hold, therefore, that whether a proscribed weapon is an antique 4 is a matter of defense; the state is not required to prove the negative as an element of the offense.
The decision of the First District Court of Appeal is quashed and this case is remanded with directions to affirm the judgment of the trial court.
It is so ordered.
SUNDBERG, C. J., and ADKINS, OVER-TON and ENGLAND, JJ., concur. BOYD and ALDERMAN, JJ., dissent.
. § 790.221 provides:
(1) It is unlawful for any person to own or to have in his care, custody, possession, or control any short-barreled rifle, short-barreled shotgun, or machine gun which is, or may readily be made, operable; but this section shall not apply to antique firearms.
(2) Any person convicted of violating this section is guilty of a felony and upon conviction thereof shall be punished by imprisonment in the state penitentiary not to exceed 5 years.
(3) Firearms in violation hereof which are lawfully owned and possessed under provisions of federal law are excepted.
. 26 Fla. 71, 7 So. 371 (1890).
. Unlike the 1st DCA, therefore, we find the antique weapon proviso to be “an exception in a subsequent clause.” A “clause” is defined as “a word group formed by subject and predicate elements but constituting a member of a complex or compound sentence instead of ranking as a completed sentence.” Webster’s New International Dictionary 497 (2d ed. 1947). We find that the exception contained in subsection 790.221(1) meets this definition.
.§ 790.001(1), Fla.Stat. (1977), defines “antique firearm” as:
[A]ny firearm manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1898; and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.
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Wright v. State, 442 So. 2d 1058 (Fla. 1st DCA 1983)…Crim.P. § 639). The excep [*1060] tion contained in section 944.47(l)(c) is analogous to the exception contained in section 790.221(1), Florida Statutes (1977), which was found to be an exception contained in a subsequent clause. State v. Thompson, 390 So. 2d 715 (Fla.1980). See also State v. Hicks, 421 So. 2d 510 (Fla.1982), interpreting the burglary statute, where the court found that the word “unless,” as used in section 810.02(1), was a qualifier to the primary sentence of the statute, separating the con…
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Hicks v. State, 407 So. 2d 252 (Fla. 5th DCA 1981)…urglary” means entering or remaining in a structure or conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain. In State v. Thompson, 390 So. 2d 715 (Fla.1980), the Supreme Court confirmed the rule of construction asserted in Baeumel v. State, 26 Fla. 71, 7 So. 371 (1890), as follows: In a statutory offense, it depends very much, though not exclusively, on the words of the statute, whether a pa…1 / 2
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State v. Robarge, 450 So. 2d 855 (Fla. 1984)…McDONALD, Justice. We accepted this case because the district court’s opinion in Robarge v. State, 432 So. 2d 669 (Fla. 5th DCA 1983), appeared to be in conflict with State v. Thompson, 390 So. 2d 715 (Fla.1980), State v. Buchman, 361 So. 2d 692 (Fla.1978), and State v. Kohler, 232 So. 2d 166 (Fla.1970). On January 19, 1982 a jury convicted Robarge of aggravated assault and manual possession of a firearm without a license. On appeal the district…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Baeumel v. State, 26 Fla. 71 (Fla. 1890)
- Quick v. State, 361 So. 2d 692 (Fla. 1977)
- Heyward Thompson v. State, 378 So. 2d 859 (Fla. 1st DCA 1979)