CLYDE FRANKLIN WHITE, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Clyde Franklin White was convicted of carrying a concealed firearm, but the appellate court reversed, holding that the firearm found in his vehicle was not on or about his person as required by statute because he was standing outside the vehicle when it was discovered.
The conviction must be reversed because, under the undisputed evidence, the firearm was neither physically on the appellant's person nor readily accessible to him at the time it was discovered. The term 'on or about the person' requires the weapon to be either physically on the person or readily accessible, neither of which was satisfied here.
[1] A conviction for carrying a concealed firearm requires proof that the firearm was physically on the person or readily accessible to the accused.
[2] A firearm found within a vehicle is not considered "on or about the person" when the accused is outside the vehicle and not in immediate proximity to it.
Previewing 2 of 4 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 '[t]erm 'on or about the person' means physically on the person or readily accessible to him.'”
Establishes the legal standard required to prove the offense of carrying a concealed firearm
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Join FLexlaw to unlock all legal intelligenceA firearm was found inside appellant's vehicle during a search. Appellant was standing outside the automobile at the time the officer recovered the we…
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ERVIN, J.
This is an appeal from a conviction of carrying a concealed firearm. We agree with appellant that the trial court erred in denying his motion for judgment of acquittal because, accepting the evidence in the light most favorable to the state, Johnston v. State, 863 So. 2d 271, 283 (Fla.2003), under no view of the undisputed evidence is the conclusion supported that appellant “carriefd] a concealed firearm on or about his ... person,” as required by section 790.01(2), Florida Statutes (2003). We therefore reverse the conviction and set aside the judgment and sentence.
As explained in Ensor v. State, 403 So. 2d 349, 354 (Fla.1981), the “[t]erm ‘on or about the person’ means physically on the person or readily accessible to him.” In the present case, the firearm that appellant was accused of possessing complied with neither requisite. Instead, the undisputed evidence discloses that although appellant had previously occupied the vehicle in which the firearm was found, and which he admitted was his, he was standing outside the automobile at the time the searching officer recovered the weapon within it. Only after the revolver was seized was appellant arrested for its possession. Under the circumstances, we consider the essential facts practically identical to those in Lamb v. State, 668 So. 2d 666 (Fla. 2d DCA 1996), where an officer, responding to a BOLO, followed Lamb to his home and took him into custody outside his parked automobile. The firearm was later found, as the defendant told them it would be, beneath the driver’s seat. The court concluded, “At the time of his arrest, ... the appellant’s firearm was not readily accessible to him[;]” therefore, it could not be said that “he carried a concealed firearm ‘on or about his person.’ ” Id. at 668. We reach the same conclusion.
REVERSED.
KAHN, J., concurs; BENTON, J., dissents.
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State v. Hinkle, 970 So. 2d 433 (Fla. 4th DCA 2007)…es which have determined that a firearm found in a vehicle is not on or about the defendant’s person, the defendant has been outside the vehicle when the firearm is discovered. See Gehring v. State, 937 So. 2d 169 (Fla. 2d DCA 2006); White v. State, 902 So. 2d 887 (Fla. 1st DCA 2005); Lamb v. State, 668 So. 2d 666 (Fla. 2d DCA 1996). [*435] The firearm was covered by a bouquet of flowers which had to be removed to reveal its presence. For the purpose of a motion to dismiss, the evidence presented a prima faci…
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Gehring v. State, 937 So. 2d 169 (Fla. 2d DCA 2006)…rson when it was discovered. Gehring claims that he had gotten out of the car and was arrested before the detectives found the shotgun in the vehicle. Gehring relies on two cases: Lamb v. State, 668 So. 2d 666 (Fla. 2d DCA 1996), and White v. State, 902 So. 2d 887 (Fla. 1st DCA 2005). “A person who carries a concealed firearm on or about his or her person commits a felony of the third degree .... ” § 790.01(2), Fla. Stat. (2003). “For a firearm to be concealed, it must be (1) on or about the person and (2) h…
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J.E.S. v. State, 931 So. 2d 276 (Fla. 5th DCA 2006)…(2) A person who carries a concealed firearm on or about his or her person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. § 790.01(2), Fla. Stat. (2004). J.E.S. argues that, based on White v. State, 902 So. 2d 887 (Fla. 1st DCA 2005), the evidence presented by the State was insufficient to support a conviction for carrying a concealed firearm. The entire opinion in White sets forth as follows: This is an appeal from a conviction of carrying a concealed firea…1 / 2
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Elton E. Ensor v. State, 403 So. 2d 349 (Fla. 1981)
- Johnston v. State, 863 So. 2d 271 (Fla. 2003)
- Lamb v. State, 668 So. 2d 666 (Fla. 2d DCA 1996)