DANIEL ARITA AMAYA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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[*886] PER CURIAM.
We reverse the trial court’s denial of defendant’s motion to dismiss and defendant’s sentence of probation in this prosecution for carrying a concealed weapon in violation of section 790.01(2), Florida Statutes (1987).
Defendant contends that the conduct with which he was charged falls within the exception created by section 790.-25(5) that “it is lawful ... to possess a concealed firearm ... within the interior of a private conveyance, without a license, if the firearm ... is ... not readily accessible for immediate use.” He argues that because, while the firearm was concealed under the passenger seat, its clip and bullets were lying separately in open view upon the seat, the firearm was not “readily accessible for immediate use.”
We must agree with that contention. We cannot agree with the state’s argument that the statutory exception was not applicable because a firearm need not be operable in order to be accessible for immediate use, e.g., for use in pointing it at someone in a threatening manner. Section 790.25(5), we conclude, contemplates an operable firearm. In reaching this conclusion we are persuaded by that section’s additional language that “[t]his subsection shall be liberally construed in favor of ... lawful use.... ” We also cannot agree with the state’s argument that the statutory exception was not applicable because the firearm could have been loaded and become operable. That exception requires that the firearm be “readily accessible for immediate use.” (Emphasis added.)
Reversed and remanded for entry of judgment of acquittal.
SCHEB, A.C.J., and LEHAN and HALL, JJ., concur.
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State v. Ashley, 601 So. 2d 1230 (Fla. 4th DCA 1992)…cased or is otherwise not readily accessible for immediate use.” According to Ashley, the firearm found in his car was not readily accessible for immediate use because it was unloaded. Ashley relied on a recent second district case, Amaya v. State, 580 So. 2d 885 (Fla. 2d DCA 1991), in which that court held that an unloaded firearm is not readily accessible for immediate use. The circuit court, relying on Amaya, granted the motion to dismiss. The court noted that no cases from the fourth district had address…1 / 2
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Ridley v. State, 621 So. 2d 409 (Fla. 1993)…OVERTON, Justice. We have for review State v. Ridley, 602 So. 2d 616 (Fla. 4th DCA 1992), based on conflict with Amaya v. State, 580 So. 2d 885 (Fla. 2d DCA 1991), disapproved by Ashley v. State, 606 So. 2d 1164 (Fla.1993). We have jurisdiction pursuant to article V, section 3(b)(3), of the Florida Constitution. The facts reflect that Ridley, after being lawfully stopped by police officers…
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