STATE OF FLORIDA, APPELLANT,
v.
WAYNE BALLEW, APPELLEE
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Florida appeals from dismissal of an information charging Ballew with carrying a concealed firearm. The court reverses, holding that the trial court erred in granting the motion to dismiss where the state's traverse alleged sufficient facts that the gun was not in plain view and the trier of fact should decide the concealment question.
The trial court erred in granting the motion to dismiss. The state's traverse contained sufficient allegations of fact to require denial of the motion, and the question of whether the weapon was concealed must be determined by the trier of fact under the circumstances of each case.
[1] A traverse to a motion to dismiss must specifically deny the material facts set forth in the motion to dismiss.
[2] A state's traverse need not present additional facts consistent with guilt, but must deny the material facts alleged in the motion to dismiss.
Previewing 2 of 5 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“The critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm. The ultimate decision must rest upon the trier of fact under the circumstances of each case.”
Establishes the legal standard for what constitutes a concealed firearm—determined by ordinary observation of an average person.
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Join FLexlaw to unlock all legal intelligenceBallew was arrested for carrying a concealed firearm. Ballew filed a sworn motion to dismiss alleging the arresting officer saw the gun in plain view.…
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PER CURIAM.
The state appeals from an order dismissing an information which charged Wayne Ballew with carrying a concealed firearm contrary to Section 790.01(2), Florida Statutes (1981). Appellee filed a sworn motion to dismiss alleging that the arresting officer saw the gun in plain view. The state filed a traverse specifically denying the allegation that the gun was in plain view and further alleging that the arresting officer saw the handle of a gun protruding under a T-shirt which covered appellee’s right hand.
The supreme court in Ensor v. State, 403 So. 2d 349 (Fla.1981), addressed the question of what constitutes a concealed weapon as defined in Section 790.001(2), Florida Statutes (1977). The court characterized the district court opinions as conflicting and irreconcilable. The court stated at 355:
The critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm. The ultimate decision must rest upon the trier of fact under the circumstances of each ease.
... It should be emphasized that the permissible and legal observations of a police officer in making an arrest and the observation of an average person making normal contact with an individual are clearly not the same. We hold that appellant’s prosecution for possession of a concealed firearm was permissible and that the firearm was wrongfully suppressed. The jury should determine whether this weapon was concealed under these facts.
Applying the test set forth in Ensor v. State to the facts of this case we conclude that the state’s traverse contained sufficient allegations to require the trial court to deny appellee’s motion to dismiss. See State v. Oberholtzer, 411 So. 2d 376 (Fla. 4th DCA 1982), pet. for rev. den., 419 So. 2d 1199 (Fla.1982).
Therefore, we reverse the trial court’s order granting appellee’s motion to dismiss and remand this cause with directions to reinstate the information and for trial on the merits.
REVERSED AND REMANDED with directions.
ANSTEAD, C.J., and DOWNEY and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Elton E. Ensor v. State, 403 So. 2d 349 (Fla. 1981)
- State v. Oberholtzer, 411 So. 2d 376 (Fla. 4th DCA 1982)