LEROY MCKINNEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Leroy McKinney was convicted of possession of a firearm by a convicted felon after a law enforcement dispatcher observed him toss a .357 magnum pistol from a car. The appellate court affirmed the conviction, holding that the evidence established actual possession despite McKinney's brief contact with the gun and his argument that the possession was not 'conscious and substantial.'
The court held that sufficient evidence established actual possession of the firearm by McKinney based on the dispatcher's eyewitness testimony that McKinney tossed the gun. The court further held that the 'conscious and substantial possession' rule does not apply to prosecutions under Florida Statute Section 790.23 when the defendant is charged with 'care, custody, possession or control' of a firearm.
[1] Evidence of actual manucaption of a firearm is sufficient to establish possession for the purposes of a firearm by a convicted felon charge.
[2] The "conscious and substantial possession" rule is inapplicable to prosecutions for "care, custody, possession or control" of a firearm by a convicted felon.
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“Although appellant's possession was very brief, the dispatcher unequivocally testified that the appellant was in actual possession of the firearm.”
Establishes the factual basis for finding actual possession despite the brief duration of contact.
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Join FLexlaw to unlock all legal intelligenceMcKinney was a passenger in the back seat of an automobile that was stopped by police. When he exited the vehicle, a radio dispatcher saw him toss a s…
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NIMMONS, Judge.
The appellant, convicted of possession of a firearm by a convicted felon, claims that the evidence presented at his jury trial was insufficient to establish that he was in possession of the firearm. We disagree.
The appellant was a passenger in the back seat of an automobile which was pulled over by a law enforcement officer. The driver and front seat passenger exited the vehicle whereupon the appellant exited from the back seat and, as he did so, a radio dispatcher riding with the officer saw the appellant toss a shiny object underneath the car. The officer recovered the object which proved to be a nickel-plated .357 magnum pistol.
The appellant’s brother testified that the gun must have slid from under the seat and was knocked or dragged out by his foot as he (the brother) exited the automobile. The testimony of the appellant and the other two passengers, who testified on behalf of the appellant, was in conflict as to the positions of the three of them while inside the automobile. Appellant denied any knowledge of the gun.
Although appellant’s possession was very brief, the dispatcher unequivocally testified that the appellant was in actual possession of the firearm. Appellant argues that the possession was not “conscious and substantial” citing Reynolds v. State, 92 Fla. 1038, 111 So. 285 (Fla.1926), and Jones v. State, 325 So. 2d 436 (Fla. 1st DCA 1976). Appellant’s reliance upon the “conscious and substantial possession” rule is misplaced. The origin of that rule has usually been credited to Reynolds v. State, supra. E.g., Maloney v. State, 146 So. 2d 581, 583 (Fla. 2nd DCA 1962). In Reynolds, the court observed:
To constitute possession, there need not necessarily be an actual manucaption of the liquor, nor is it necessary that it be otherwise actually upon the person of the accused. State v. Aplin, 128 Wash. 36, 221 P. 989. There must, however, be a conscious and substantial possession by the accused, as distinguished from a mere involuntary or superficial possession.
In the instant case, there was sufficient evidence from which the jury could find that there was an actual manucaption of the firearm by the appellant. Moreover, it has been suggested in Jones v. State, supra, that the conscious and substantial possession rule is inapplicable to prosecutions under Section 790.23, Florida Statutes, where, as here, the defendant is charged with “care, custody, possession or control” of the firearm. See Maloney v. State, supra.
In view of our holding that the appellant was in actual possession of the firearm, it is unnecessary for us to consider the question of whether the firearm was in the constructive possession, care, custody or control of the appellant during the time that it was situated inside the automobile immediately prior to the dispatcher’s observing the appellant toss the firearm.
AFFIRMED.
BOOTH and WIGGINTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Mungin v. State, 458 So. 2d 293 (Fla. 1st DCA 1984)…ll, a correctional officer, upon the latter’s demand therefor. Regardless of whether Mungin’s possession prior thereto was unlawful, it certainly was at that point. And even his “temporary” possession thereafter is sufficient. See McKinney v. State, 428 So. 2d 322 (Fla. 1st DCA 1983). I, therefore, agree with the trial judge that what had transpired prior thereto was irrelevant. Even if I were to agree with the majority that we should recede from Carter, I would not do so in this case.…
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McKINNEY v. Louie L. Wainwright, 458 So. 2d 1149 (Fla. 1st DCA 1984)…PER CURIAM. McKinney’s conviction for possession of a firearm by a convicted felon was affirmed by this court in McKinney v. State, 428 So. 2d 322 (Fla. 1st DCA 1983). In a petition for writ of habeas corpus filed in this court, he claims that his appellate [*1150] counsel was ineffective because of the failure to assert on appeal that the firearm should have been suppressed pursuant to Sectio…
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Ortega v. State, 438 So. 2d 934 (Fla. 3d DCA 1983)…PER CURIAM. The judgment appealed from is affirmed upon the holding that (1) the instructions as a whole clearly and adequately enabled the jury to consider the theory of the defense: McKinney v. State, 428 So. 2d 322 (Fla. 1st DCA 1983); Leonard v. State, 423 So. 2d 594 (Fla. 3d DCA 1982); Scott v. State, 396 So. 2d 271 (Fla. 3d DCA 1981); Marcum v. State, 379 So. 2d 974 (Fla. 5th DCA 1979), cert. denied, 389 So. 2d 1112 (Fla.1980); Diez v. State, 359 So. 2d 55…
Authorities Cited
- Reynolds v. State, 111 So. 285 (Fla. 1926)
- Maloney v. State, 146 So. 2d 581 (Fla. 2d DCA 1962)
- Jones v. State, 325 So. 2d 436 (Fla. 1st DCA 1975)