MARK GONSOULIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
Explore caselaw by topic → Browse Blockburger Test cases and more on FLexlaw
COBB, Judge.
The issue posed by this appeal is whether the crime of carrying a concealed weapon is a necessarily lesser included offense of the crime of carrying a concealed firearm. The trial court refused to so instruct the jury and the appellant contends that this was error per se.
We agree with the trial judge based upon a Blockburger analysis1 of the two offenses. By statutory definition the term “weapon” as used in section 790.01(1), Florida Statutes, excludes a firearm; therefore, the elements of the lesser offense (carrying a concealed weapon) are not encompassed by proof of the greater offense (carrying a concealed firearm). Based on the statutory language, the two offenses are mutually exclusive. See State v. Wimberly, 498 So. 2d 929 (Fla.1986).
AFFIRMED.
W. SHARP and DIAMANTIS, JJ., concur. . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Doyle Fryer v. State, 732 So. 2d 30 (Fla. 5th DCA 1999)…fense. See, e.g., Lewellen v. State, 682 So. 2d 186 (Fla. 2d DCA 1996) (since definition of petit theft excludes certain items, including automobiles, petit theft cannot be considered lesser included offense of grand theft auto); Gonsoulin v. State, 642 So. 2d 146 (Fla. 5th DCA 1994) (crime of carrying a concealed weapon is not lesser included offense of carrying a concealed firearm, since statutory definition of “weapon” excludes firearm). Grand theft auto, a third-degree felony, also appears to be a necess…
Authorities Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
- State v. Wimberly, 498 So. 2d 929 (Fla. 1986)