RENE SITO PADRON-CANTO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
The judgment of conviction and sentence for carrying a concealed firearm [§ 790.-01(2), Fla.Stat. (1979) ] under review by this appeal is reversed and the cause is remanded to the trial court with directions to discharge the defendant from the cause.
Our review of the record on appeal reveals that no evidence was ever adduced below tending to show that the firearm admittedly possessed in this ease by the defendant was ever concealed; indeed, the evidence is to the contrary that the firearm was held by the defendant in such a way that it was plainly visible to the ordinary sight of another person. The law is clear that proof of concealment is an essential element of the crime of carrying a concealed firearm under Section 790.01(2), Florida Statutes (1981), and such element must be proven beyond a reasonable doubt. As such, the trial court erred in denying the defendant’s motion for judgment of acquittal made at the close of the state’s case and renewed at the close of all the evidence. Quiroga v. State, 364 So. 2d 47 (Fla. 3d DCA 1978); Donald v. State, 344 So. 2d 633 (Fla. 2d DCA 1977).
Reversed and remanded with directions to discharge the defendant from the cause.
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Sonny Wilson v. State, 530 So. 2d 1111 (Fla. 5th DCA 1988)…also Powell v. State, 369 So. 2d 108 (Fla. 1st DCA), dismissed, 373 So. 2d 461 (Fla.1979) (denial of motion to dismiss reversed where police officer clearly saw handle of firearm protruding from defendant’s rear pants pocket); Padron-Canto v. State, 414 So. 2d 1151 (Fla. 3d DCA 1982) (judgment reversed where evidence showed that the firearm held by the defendant was plainly visible to the ordinary sight of another person). In Cope v. State, 523 So. 2d 1270 (Fla. 5th DCA 1988), this court recently recited the…
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Merejildo Garcia Villegas v. State, 696 So. 2d 818 (Fla. 2d DCA 1997)…. See Ensor v. State, 403 So. 2d 349 (Fla.1981); Carpenter v. State, 593 So. 2d 606 (Fla. 5th DCA 1992). Proof of such concealment is an essential element of the offense charged which must be proven beyond a reasonable doubt. Padrone-Canto v. State, 414 So. 2d 1151 (Fla. 3d DCA 1982). Here, the only evidence of Villegas’ possession of the firearm was testimony that Villegas held the firearm in such a way as to be plainly visible to the ordinary sight of another. Because there was no proof of concealment, the c…
Authorities Cited
- Quiroga v. State, 364 So. 2d 47 (Fla. 3d DCA 1978)
- Donald v. State, 344 So. 2d 633 (Fla. 2d DCA 1977)