RAYMOND BENITEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Raymond Benitez was convicted under Florida law for unlawfully possessing a firearm after being convicted of a felony. The court affirmed his conviction, holding that the state was not required to prove that his civil rights had not been restored, as the restoration of rights is a matter of defense to be established by the defendant.
The state was not required to prove that the appellant's civil rights had not been restored. The restoration of civil rights operates as an exception in a subsequent clause of the statute and constitutes a matter of defense that must be proven by the defendant.
“if there is an exception in the enacting clause of a statute the party pleading must show that his adversary is not within the exception, but (as in the enactment of § 790.23, supra) if there is an exception in a subsequent clause, or a subsequent statute, that is a matter of defense, and is to be shown by the other party”
Establishes the distinction between exceptions in enacting clauses versus subsequent clauses and determines who bears the burden of proof
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Join FLexlaw to unlock all legal intelligenceBenitez was charged, convicted, and sentenced under Section 790.23, F.S.A., which prohibits persons convicted of a felony from owning or possessing fi…
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On Information, the appellant-defendant was charged, convicted, and sentenced for being guilty of violating Section 790.23, F.S.A. We affirm.
Section 790.23, F.S.A. reads:
“(1) It shall be unlawful for any person who has been convicted of a felony to own or to have in his care, custody, possession or control any pistol, sawed-off rifle or sawed-off shotgun. A sawed-off rifle or sawed-off shotgun is defined for the purposes of this section as being any rifle or shotgun with a caliber greater than twenty-two caliber and with a barrel less than eighteen inches long.
“(2) This section shall not apply to a person having been convicted of a felony whose civil rights have been restored.”
Appellant’s assignments of error are not addressed to any judicial act, but are addressed to the verdict of the jury; hence, they are insufficient in law, Appellate Rule 3.5(c), 31 F.S.A.; however, we will review appellant’s point relied on for reversal, which is:
WAS THE STATE REQUIRED TO PROVE, PRODUCE OR SUBMIT EVIDENCE TO SHOW THAT APPELLANT’S CIVIL RIGHTS HAD NOT BEEN RESTORED ?
Our answer to this proposition is in the negative. Paragraph (2) of § 790.23, F.S.A., is an exception to the rule of law prescribed in paragraph (1). Section 906.-12, F.S.A., provides that, “No indictment or information for an offense created or defined by statute shall be invalid or insufficient merely for the reason that it fails to negative any exception, excuse or proviso contained in the statute creating or defining the offense.” This statute is consistent with the decisional law as announced in Baeumel v. State, 26 Fla. 71, 7 So. 371, holding that if there is an exception in the enacting clause of a statute the party pleading must show that his adversary is not within the exception, but (as in the enactment of § 790.23, supra) if there is an exception in a subsequent clause, or a subsequent statute, that is a matter of defense, and is to be shown by the other party See also Ferrell v. State, 45 Fla. 26, 34 So. 220. “Matters *522that are not essential elements of the offense, but are in the nature of a defense, need not be negatived in charging the offense.” (Italics supplied). 17 Fla.Jur., § 33, p. 231. When matters need not be negatived, their negative need not be proved.
Affirmed.
SMITH, C. J., and SHANNON, J., concur.
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Citator
Cited By (12 total)
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State v. Kahler, 232 So. 2d 166 (Fla. 1970)…ful.” .226 So. 2d 399 (Fla.1969). . Id. at 401. . See e. g., Gurr v. State, 150 Fla. 65, 7 So. 2d 590 (1942); Cortina v. State, 135 Fla. 268, 184 So. 838 (1938); Buchanan v. State ex rel. Hunt, 171 So. 2d 186 (Fla.App.3rd 1965); Benitez v. State, 172 So. 2d 520 (Fla.App.2nd 1965). . 333 F. 2d 210, rehearing 342 F. 2d 408 (C.A.9 1963), cert. denied 382 U.S. 829, 86 S.Ct. 63, 15 L.Ed.2d 72 (1965). . 21 U.S.C. § 174: “Whenever on trial for violation of this section the defendant is shown to have or have had…
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Hicks v. State, 407 So. 2d 252 (Fla. 5th DCA 1981)…contexts, see: State v. Buchman, 361 So. 2d 692 (Fla.1978), (sale of unregistered securities); State v. Kahler, 232 So. 2d 166 (Fla.1970), (possession of certain unlabeled drugs as prima facie evidence that possession is unlawful); Benitez v. State, 172 So. 2d 520 (Fla.2d DCA 1965) (possession of firearms by convicted felons). . Grammatically, the word “unless” is considered a subordinating conjunction, thus it precedes and connects a subordinate clause or a dependent clause, with the remainder. See Harbrace…1 / 2
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Nelson v. State, 195 So. 2d 853 (Fla. 1967)…nd was not designed as a shield for the individual man, who is prone to load his stomach with liquor and his pockets with revolvers or dynamite, and make of himself a dangerous nuisance to society.” See, 13 Fla.L.J. 253 (1939). . Benitez v. State, 172 So. 2d 520 (Fla.App.2nd 1965); Maloney v. State, 146 So. 2d 581 (Fla.App.2nd 1962). . Cases v. United States, 131 F. 2d 916 (C.C.A.1st 1942), cert. denied Cases Velazquez v. United States, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943); United States v. Ad…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Baeumel v. State, 26 Fla. 71 (Fla. 1890)
- Ferrell v. State, 45 Fla. 26 (Fla. 1903)