STATE OF FLORIDA, APPELLANT,
v.
DAN ENRIQUE LOPEZ, APPELLEE
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The State appeals the dismissal of a concealed firearm charge against Lopez, a convicted felon found with a firearm under his vehicle's driver's seat during a lawful traffic stop and consensual search. The court reverses, holding that the evidence sufficiently showed Lopez simultaneously carried and concealed the firearm, distinguishing the factual circumstances from a prior case that had required dismissal.
The evidence was sufficient to support a conviction for carrying a concealed firearm. A firearm found under the driver's seat of a vehicle operated by the defendant during a lawful traffic stop and search satisfies the statutory requirement that the firearm be 'simultaneously carried by' the defendant and 'concealed.'
[1] A motion to dismiss under rule 3.190(c)(4) requires a pretrial determination of law when facts are undisputed, and the standard of review on appeal is de novo.
[2] Under Florida Rule of Criminal Procedure 3.190(c)(4), a defendant may move to dismiss if undisputed facts do not establish a prima facie case of guilt.
Previewing 2 of 6 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“A person who carries a concealed firearm on or about his or her person commits a felony of the third degree.”
Sets forth the statutory language under Florida Statute § 790.01(2) that defines the crime of carrying a concealed firearm.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuring a valid traffic stop, Lopez consented to a vehicle search and exited the car as requested. The officer discovered a firearm directly under the …
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LaROSE, Judge.
The State appeals the trial court’s order dismissing the concealed firearm charge against Dan Enrique Lopez. We have jurisdiction, see Fla. R.App. P. 9.140(c)(1)(A), and reverse.
During a valid traffic stop, Mr. Lopez, the driver, consented to a search of his vehicle. At the officer’s request, Mr. Lopez exited the car to facilitate the search. The officer found a firearm directly under the driver’s seat. Mr. Lopez was arrested and charged with possession of a firearm by a convicted felon and carrying a concealed firearm. Section 790.01(2), Florida Statutes (2005), provides that “[a] person who carries a concealed firearm on or about his or her person commits a felony of the third degree.... ” The trial court concluded that Mr. Lopez had violated his probation and sentenced him to a prison term on the felon in possession charge. The trial court dismissed the concealed firearm charge.
In dismissing that charge, the trial court relied on Gehring v. State, 937 So. 2d 169 (Fla. 2d DCA 2006). In Gehring, the defendant arrived home where police detectives were waiting to arrest him for aggravated stalking. Id. at 170. After he got out of his car, the detectives arrested him and placed him in a patrol car. Id. Searching the car, they found a shotgun under a jacket on the passenger seat. Id. We reversed the conviction for carrying a concealed firearm, holding that the evidence “did not show that the firearm was simultaneously carried by Gehring and concealed.” Id. at 171.
Our opinion in Gehring distinguished J.E.S. v. State, 931 So. 2d 276 (Fla. 5th DCA 2006), which held that the evidence was sufficient to support a conviction for carrying a concealed firearm where the defendant was ordered out of his vehicle during a valid traffic stop and a legal search of the vehicle revealed a firearm hidden under the seat. Gehring, 937 So. 2d at 171. Mr. Lopez’ case is quite similar to J.E.S. See also Ensor v. State, 403 So. 2d 349, 351-53 (Fla.1981) (holding trial court erred in dismissing concealed weapon charge where officers saw firearm under floormat after defendant got out of car as instructed following valid traffic stop); Mense v. State, 570 So. 2d 1390, 1391-92 (Fla. 3d DCA 1990) (affirming conviction where police ordered defendant to exit vehicle after valid stop and discovered shotgun on front seat floorboard); State v. Strachan, 549 So. 2d 235, 236 (Fla. 3d DCA 1989) (reversing dismissal of concealed firearm charge where officer saw firearm on floor of car after defendant got out following valid stop). Indeed, when the officer first encountered Mr. Lopez, Mr. Lopez had a firearm under his seat. The charge against Mr. Lopez alleged sufficiently that the firearm was simultaneously on or about his person and concealed. We reverse the dismissal of the charge of carrying a concealed weapon and remand for further proceedings.
Reversed and remanded.
CASANUEYA and DAVIS, JJ., Concur.
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Citator
Cited By
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State v. Smith, 67 So. 3d 409 (Fla. 4th DCA 2011)…overed. Id. at 434 (citations omitted). This court then cited Gehring, White, and Lamb. The facts of Hinkle, however, are not similar and this court found that a prima facie case of concealment had been shown by the state. [*414] In State v. Lopez, 980 So. 2d 1270 (Fla. 2d DCA 2008), during a valid traffic stop, the defendant/driver consented to have his vehicle searched. The officer requested he get out of the car to facilitate the search. The firearm was found under the driver’s seat. The trial court dismis…
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State v. Brice, 192 So. 3d 692 (Fla. 2d DCA 2016)…fining trespassing on school grounds); Gehring v. State, 937 So. 2d 169, 170 (Fla. 2d DCA 2006) (describing when a firearm is “concealed” and when it is “on or about the person” for the purposes of a concealed carry charge); see also State v. Lopez, 980 So. 2d 1270 (Fla. 2d DCA 2008) (distinguishing cases where a firearm was simultaneously on or about a person and concealed from those where the elements were not simultaneous). This is doubtless why. Mr. Brice’s counsel presented these matters to the jury in th…
Authorities Cited
- Elton E. Ensor v. State, 403 So. 2d 349 (Fla. 1981)
- Gehring v. State, 937 So. 2d 169 (Fla. 2d DCA 2006)
- 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)
- J.E.S. v. State, 931 So. 2d 276 (Fla. 5th DCA 2006)
- Mense v. State, 570 So. 2d 1390 (Fla. 3d DCA 1990)