THE STATE OF FLORIDA, APPELLANT,
v.
PATRICK JAMES POLLOCK, APPELLEE
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The State appeals a trial court's dismissal of a concealed firearm charge against Patrick Pollock, a passenger in a vehicle stopped for traffic. The appellate court reverses, holding that the defendant failed to meet his burden on the motion to dismiss by not establishing undisputed facts showing the firearm was within ordinary sight.
The court reversed the dismissal, holding that the defendant failed to meet his burden as movant to establish undisputed facts demonstrating the firearm was within the ordinary sight of another person. A weapon on or near a vehicle's floorboard or seat, even if partially visible, is not necessarily within ordinary sight as a matter of law.
[1] A defendant filing a sworn motion to dismiss must demonstrate that the undisputed facts fail to establish a prima facie case or establish a valid defense.
[2] For a firearm to be concealed, it must be on or about the person and hidden from the ordinary sight of another person.
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Join FLexlaw to unlock all legal intelligence“For a firearm to be concealed, it must be (1) on or about the person and (2) hidden from the ordinary sight of another person.... The term "ordinary sight of another person" means the casual and ordinary observation of another in the normal associations of life. Ordinary observation by a person other than a police officer does not generally include the floorboard of a vehicle, whether or not the weapon is wholly or partially visible.”
Establishes the two-part test for concealment and defines ordinary sight, emphasizing that visibility from inside a vehicle does not necessarily preclude concealment.
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Join FLexlaw to unlock all legal intelligencePollock was a passenger in a vehicle stopped by police for a traffic infraction. The arresting officer observed Pollock ducking down in his seat two o…
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PER CURIAM.
The State appeals an order of the trial court granting a sworn motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4).* We reverse.
Patrick James Pollock was charged with carrying a concealed firearm in violation of subsection 790.01(2), Florida Statutes (1991). Pollock was a passenger in a vehicle which was stopped by the police for a traffic infraction. The sworn motion to dismiss states, in part:
3. The arresting officer claims to have noticed the defendant ducking down in his seat two or three times prior to the stop.
4. According to the arresting officer upon looking inside the passenger seat of the vehicle he noticed the butt of a handgun protruding from the end of the seat.
5. At that point the officer retrieved the gun and placed the defendant under arrest.
(R. 15). Defendant Pollock also relied on the arresting officer’s deposition testimony, which stated, in part:
I looked inside the passenger’s seat of the vehicle down into the passenger’s seat area. And I noticed the butt of a handgun protruding from the end of the seat. At which time, I retrieved the handgun and placed the defendant under arrest.
(R. 8). The State filed no traverse.
The trial court granted the motion to dismiss, reasoning that the officer’s description did not show the extent to which the gun was protruding from under the seat. That being so, the court concluded that the firearm was not shown to be concealed.
In filing a sworn motion to dismiss, the defendant must, among other things, “demonstrate that the undisputed facts fail to establish a prima facie case or that they establish a valid defense....” Ellis v. State, 346 So. 2d 1044, 1045 (Fla. 1st DCA 1977). Under the statute, there is a twofold test for a concealed weapon:
For a firearm to be concealed, it must be (1) on or about the person and (2) hidden from the ordinary sight of another person.... The term “ordinary sight of another person” means the casual and ordinary observation of another in the normal associations of life. Ordinary observation by a person other than a police officer does not generally include the floorboard of a vehicle, whether or not the weapon is wholly or partially visible.
These statements are not intended as absolute standards. Their purpose is to make it clear that a weapon’s possible visibility from a point outside the vehicle may not, as a matter of law, preclude the weapon from being a concealed weapon under section 790.001[, Florida Statutes].
Ensor v. State, 403 So. 2d 349, 354 (Fla.1981) (emphasis added).
Here, the defendant did not meet its burden in the first instance. It was the defendant’s responsibility, as the movant, to set forth undisputed facts which demonstrated that the weapon was situated so that it was within the ordinary sight of another person. Id. It is not entirely clear whether the weapon was on the floorboard protruding from the end of the seat, or was in the seat itself, but under either reading on this record the motion should have been denied. See id.; O.H. v. State, 577 So. 2d 696, 697 (Fla. 3d DCA 1991); State v. Puig, 551 So. 2d 552, 553 (Fla. 3d DCA 1989), review denied, 563 So. 2d 633 (Fla.1990); State v. Strachan, 549 So. 2d 235, 236 (Fla. 3d DCA 1989); Myers v. State, 546 So. 2d 754 (Fla. 3d DCA 1989).
The order under review is reversed and the cause remanded for further proceedings consistent herewith.
*
The parties agree, and it is clear from the transcript, that the trial court granted the sworn motion to dismiss. The order under review contains a scrivener’s error indicating that the order is one which grants a motion to suppress evidence. We treat the order as one which grants a sworn motion to dismiss.
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Dennis v. State, 51 So. 3d 456 (Fla. 2010)…4) motion to dismiss. To be entitled to dismissal under rule 3.190(c)(4), “the defendant must ‘demonstrate that the undisputed facts fail to establish a prima facie case.’ ” Dorelus v. State, 747 So. 2d 368, 373 (Fla.1999) (quoting State v. Pollock, 600 So. 2d 1313, 1314 (Fla. 3d DCA 1992)). If the State specifically alleges that the material facts are in dispute or that the facts refute the defendant’s claim, the motion to dismiss must be denied. State v. Kalogeropolous, 758 So. 2d 110, 112 (Fla.2000). Sectio…
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Dorelus v. State, 747 So. 2d 368 (Fla. 1999)…5 n. 2 (Fla. 5th DCA 1994); State v. Diaz, 627 So. 2d 1314, 1315 (Fla. 2d DCA 1993). In bringing a rule 3.190(c)(4) motion to dismiss, the defendant must “demonstrate that the undisputed facts fail to establish a prima facie case.” State v. Pollock, 600 So. 2d 1313, 1314 (Fla. 3d DCA 1992) (quoting Ellis v. State, 346 So. 2d 1044, 1045 (Fla. 1st DCA 1977)). Dorelus’s sworn motion to dismiss quotes the arresting officer’s probable cause affidavit that while standing outside the defendant’s vehicle the officer…
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State v. Blanco, 702 So. 2d 597 (Fla. 2d DCA 1997)…ealed,” the weapon must be on or about the person and hidden from the ordinary sight of another person. “Ordinary sight of another person” means the casual and ordinary observation of another in the normal associations of life. See State v. Pollock, 600 So. 2d 1313 (Fla. 3d DCA 1992). A weapon’s possible visibility from outside a vehicle may not, as a matter of law, preclude it from being “concealed” within the meaning of section 790.01(2), Florida Statutes (1995). See Pollock. After a review of the record and…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Elton E. Ensor v. State, 403 So. 2d 349 (Fla. 1981)
- Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977)
- State v. Puig, 551 So. 2d 552 (Fla. 3d DCA 1989)
- Myers v. State, 546 So. 2d 754 (Fla. 3d DCA 1989)
- Hydra Villas at Samari Lakes Condo. Ass'n, Inc. v. Hydra Villas AT Samari Lakes Co., Inc., 549 So. 2d 235 (Fla. 3d DCA 1989)
- State v. Strachan, 549 So. 2d 235 (Fla. 3d DCA 1989)
- Snell v. State, 577 So. 2d 696 (Fla. 3d DCA 1991)