ALLEN S. KRAAY, APPELLANT,

v.

STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2014-09-10

No. 1D14-602

VAN NORTWICK and MAKAR, JJ„ concur.

148 So. 3d 789 Florida District Court of Appeal, First District (2014) Positive Treatment

Cited by 7 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Allen Kraay appealed his conviction for possession of a firearm by a convicted felon, arguing that the trial court erred in denying his pre-trial motion to dismiss based on Weeks v. State. The court affirmed, holding that while Weeks was binding on trial courts, it declared the statute unconstitutional only as applied to antique firearm replicas, not facially, and Kraay's firearm was a modern .22 caliber rifle.

Holding

The trial court's ruling was correct because Weeks did not hold section 790.23 facially unconstitutional but rather declared it unconstitutional only as applied to antique firearm replicas, and Kraay's modern .22 caliber automatic rifle does not fall within that limited holding.

Headnotes

[1] An appellate decision is binding on trial courts within its district from the date of its issuance, even if a motion for rehearing is pending.

[2] A statute is not facially unconstitutional if it is only declared unconstitutional as applied to a specific category of items, and the case at bar does not involve that c…

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Key Quotes

“the trial court's ruling was correct because, contrary to the argument in the motion to dismiss, Weeks did not hold section 790.23 facially unconstitutional; it merely declared the statute unconstitutional as applied to replicas of antique firearms”
Establishes the central holding that Weeks is an as-applied, not facial, constitutional challenge

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Facts & Procedural History

Kraay was charged with possession of a firearm by a convicted felon under section 790.23(1), Florida Statutes. Before trial, he moved to dismiss based…

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Topics

Unconstitutional As Applied Binding Precedent Facial Unconstitutionality Possession Of A Firearm By A Convicted Felon

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Opinion of the Court

WETHERELL, J.

Allen Kraay raises one issue in this direct appeal of his judgment and sentence for possession of a firearm by a convicted felon: whether the trial court erred in denying his pre-trial motion to dismiss based on Weeks v. State, 2013 WL 6818869, 39 Fla. L. Weekly D35 (Fla. 1st DCA Dec. 26, 2013). We affirm.

Kraay was charged with possession of a firearm by a convicted felon in violation of section 790.23(1), Florida Statutes (2012). Prior to trial, Kraay filed a motion to dismiss the charge based upon Weeks. The trial court denied the motion, reasoning that it was not bound by Weeks because the decision was then pending on rehearing and thus was not yet final. The case thereafter proceeded to trial. The jury found Kraay guilty as charged and the trial court sentenced him to a mandatory minimum term of three years in prison.

The reasoning underlying the trial court’s ruling on the motion to dismiss was erroneous because Weeks was binding on the trial courts of this district from the date the opinion was issued.1 However, the trial court’s ruling was correct because, contrary to the argument in the motion to dismiss, Weeks did not hold section 790.23 facially unconstitutional; it merely declared the statute unconstitutional as applied to replicas of antique firearms,2 and here, Kraay stipulated that the firearm he was charged with possessing was not an antique and the evidence presented at trial showed that the firearm was a modern .22 caliber automatic rifle. Accordingly, Weeks does not apply to this case.

AFFIRMED.

VAN NORTWICK and MAKAR, JJ„ concur.

. See Rock v. State, 800 So.2d 298, 300 (Fla. 3d DCA 2001) (rejecting argument that Florida Supreme Court decision was not controlling because it was not yet final due to a pending motion for rehearing and explaining that the non-final decision “controls until it is altered or overturned”); Philip Padovano, Florida Appellate Practice § 20.7, at 404 (2011-2012 ed.) (explaining that finality of an appellate opinion and its effective date are distinct concepts and "[t]he effective date of an appellate decision is the date appearing on the face of the decision, even though most decisions do not become final until after the time has expired for filing a motion for rehearing”); but cf. Henderson v. State, 698 So.2d 1205 (Fla.1997) (explaining that when the Florida Supreme Court explicitly states that a ruling is prospective only, the ruling does not take effect until the time for rehearing has run).

. See Weeks v. State, 146 So.3d 81, 85 39 Fla. L. Weekly D1798, D1800 (Fla. 1st DCA Aug. 26, 2014) (revised opinion) ("In sum, we hold section 790.23 is unconstitutionally vague as to antique replica firearms because the phrases 'firearm' and 'antique firearm' defined in chapter 790, do not give adequate notice of what constitutes a permissible replica of an antique firearm which may be lawfully carried by a convicted felon_”); accord Sexton v. State, 146 So.3d 515, 39 Fla. L. Weekly D1712 (Fla. 2d DCA Aug. 13, 2014) ("Because the constitutional concern addressed in [the original opinion in] Weeks appears to arise only in cases involving firearms that arguably might be regarded as a replica of an antique firearm, the issue does not result in the facial unconstitutionality of section 790.23(1).”); Walker v. State, 137 So.3d 594 (Fla. 2d DCA 2014) ("As we read [the original opinion in] Weeks, the First District seemingly found the statute unconstitutional as applied — i.e., to antique or replica firearms.... ”).

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Citator

Cited By

Cortez Hatten v. State, 152 So. 3d 849 (Fla. 1st DCA 2014)

…eserved by a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). We affirm the first and second issues without comment. We affirm the third issue based upon Weeks v. State, 146 So. 3d 81 (Fla. 1st DCA 2014), and Kraay v. State, 148 So. 3d 789 (Fla. 1st DCA 2014). We affirm the fourth issue based upon Kelly v. State, 137 So. 3d 2, 6-7 (Fla. 1st DCA 2014), wherein this court held that “circuit courts in the First District may, pursuant to [the 10-20-Life statute], impose a sentence in add…
Laron Coleman v. State, 148 So. 3d 865 (Fla. 1st DCA 2014)

…PER CURIAM. AFFIRMED. See Kraay v. State, 148 So. 3d 789 (Fla. 1st DCA 2014). LEWIS, C.J., CLARK and MARSTILLER, JJ., concur.…
Tawa Montgomery v. State, 156 So. 3d 1128 (Fla. 1st DCA 2015)

…PER CURIAM. AFFIRMED. See Kraay v. State, 148 So. 3d 789, 790 (Fla. 1st DCA 2014). LEWIS, C.J., BENTON, and THOMAS, JJ., concur.…

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Authorities Cited

Henderson v. State, 698 So. 2d 1205 (Fla. 1997)
Carlton Rock v. State, 800 So. 2d 298 (Fla. 3d DCA 2001)
Walker v. State, 137 So. 3d 594 (Fla. 2d DCA 2014)
Weeks v. State, 146 So. 3d 81 (Fla. 1st DCA 2014)
Sexton v. State, 146 So. 3d 515 (Fla. 2d DCA 2014)

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ALLEN S. KRAAY, APPELLANT, v. STATE OF FLORIDA, APPELLEE

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ALLEN S. KRAAY, APPELLANT,

v.

STATE OF FLORIDA, APPELLEE