JIMMIE ROGERS BELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed a conviction for possession of a concealed weapon by a convicted felon, finding the nature of the weapon was a jury question. However, it reversed a conviction for carrying a concealed weapon, ruling that both offenses stemmed from a single act of possession.
Yes, the determination of whether the item was a "weapon" was a jury question. No, a defendant cannot be convicted and sentenced for both offenses as they arose from a single criminal episode and involved the same act of possession.
[1] Whether an object constitutes a "weapon" under Florida Statutes section 790.001(13) is a question for the jury.
[2] A defendant may not be convicted and sentenced for both possession of a concealed weapon by a convicted felon and carrying a concealed weapon when both offenses arise fro…
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Join FLexlaw to unlock all legal intelligence“whether it constituted a “weapon,” as defined in section 790.001(13), Florida Statutes (1993), was a jury question.”
Establishes the court's reasoning for affirming the conviction for possession of a concealed weapon by a convicted felon.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of possession of a concealed weapon by a convicted felon and carrying a concealed weapon, and his probation was revoked based …
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PER CURIAM.
In this direct criminal appeal, appellant seeks review of convictions for possession of a concealed weapon by a convicted felon and carrying a concealed weapon, and of the revocation of his probation in another case based on those convictions. We have examined the knife involved in these cases, and conclude that whether it constituted a “weapon,” as defined in section 790.001(13), Florida Statutes (1993), was a jury question. E.g., State v. Ortiz, 504 So. 2d 39 (Fla. 2d DCA 1987). Accordingly, we affirm appellant’s conviction for possession of a concealed weapon by a convicted felon without further discussion.
However, we agree that appellant may not be convicted of, and sentenced for, both possession of a concealed weapon by a convicted felon and carrying a concealed weapon, because both offenses arose out of a single episode, and both involved the same act of possession. Maxwell v. State, 666 So. 2d 951 (Fla. 1st DCA), review granted, No. 87,290 (Fla. Apr. 11, 1996); Brown v. State, 670 So. 2d 965 (Fla. 1st DCA 1995); M.P.C. v. State, 659 So. 2d 1293 (Fla. 5th DCA 1995); A.J.H. v. State, 652 So. 2d 1279 (Fla. 1st DCA 1995).
See also State v. Steams, 645 So. 2d 417, 418 (Fla.1994) (interpreting State v. Brown, 633 So. 2d 1059 (Fla. 1994), as standing for proposition that “a defendant could not be convicted and sentenced for two crimes involving a firearm that arose out of the same criminal episode”).
Accordingly, we reverse appellant’s conviction and sentence for carrying a concealed weapon, and remand with directions that the trial court enter an amended order revoking probation in appellant’s prior case, deleting any reference to carrying a concealed weapon as a basis for revocation; and amended orders placing appellant on community control, followed by probation, for possession of a concealed weapon by a convicted felon only, deleting any reference to the offense of carrying a concealed weapon.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
MINER and WEBSTER, JJ., and SMITH, Senior Judge, concur.
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Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996)…ion of section 775.021(4), Florida Statutes, in all circumstances in which a firearm is an element of companion offenses, each otherwise containing an element or elements not contained in the other. We note conflict on this point with Bell v. State, 673 So. 2d 556 (Fla. 1st DCA 1996), and Maxwell v. State, 666 So. 2d 951 (Fla. 1st DCA), rev. granted, No. 87,290, 673 So. 2d 30 (Fla. Apr. 11,1996). [*617] We also affirm as to an evidentiary issue raised, regarding whether certain testimony falls under the hears…
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Bunkley v. State, 882 So. 2d 890 (Fla. 2004)…5 So. 2d 479 (Fla.2003); see also Mitchell v. State, 698 So. 2d 555, 561 (Fla. 2d DCA 1997) (citing Ortiz for the rule that “whether a pocketknife is a weapon is a factual question for the jury”), approved, 703 So. 2d 1062 (Fla.1997); Bell v. State, 673 So. 2d 556 (Fla. 1st DCA 1996) (affirming a defendant’s- convictions for concealed weapons offenses and citing Ortiz for the rule that whether a knife qualified as a “weap [*895] on” under section 790.001(13) is a jury question). Ortiz was decided on March 13…1 / 2
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Walls v. State, 730 So. 2d 294 (Fla. 1st DCA 1999)…th of the blade, utilizing the term “approximately” to establish the blade’s dimensions. Under these facts, we adhere to pre-L.B. case law indicating that whether the knife at issue [*295] constituted a weapon was a jury question. See Bell v. State, 673 So. 2d 556 (Fla. 1st DCA 1996). To the extent that L.B. establishes a per se rule for the definition of common pocketknife, the rule may be invoked only by a defendant who establishes conclusively that the knife in question has a blade length of four inches or…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Brown, 633 So. 2d 1059 (Fla. 1994)
- City OF Sarasota v. Mikos, 645 So. 2d 417 (Fla. 1994)
- State v. Stearns, 645 So. 2d 417 (Fla. 1994)
- Pedersen v. State, 652 So. 2d 1279 (Fla. 5th DCA 1995)
- State v. Manfredo Ortiz, 504 So. 2d 39 (Fla. 2d DCA 1987)
- Everett v. Brown, 670 So. 2d 965 (Fla. 1st DCA 1995)
- Maxwell v. State, 666 So. 2d 951 (Fla. 1st DCA 1996)
- M.P.C. v. State, 659 So. 2d 1293 (Fla. 5th DCA 1995)