STATE OF FLORIDA, APPELLANT,
v.
WILLIE B. WARE, APPELLEE
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The court held that the evidence presented a factual issue regarding the firearm's convertibility, which should be determined by a jury.
[1] A motion to dismiss a concealed firearm charge should be denied when the evidence shows the firearm could be assembled and loaded within a short period, creating a factua…
[2] Whether a disassembled firearm can be readily converted to expel a projectile by the action of an explosive is a question of fact for the jury.
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Join FLexlaw to unlock all legal intelligenceThe defendant was charged with carrying a concealed firearm, a disassembled shotgun. The trial court dismissed the charge, finding the firearm could n…
The full statement of facts, procedural history, and disposition for this case are member content.
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On October 1, 1970, an information was filed against appellee charging him with a violation of F.S. § 790.001(2), F.S.A. by carrying a concealed firearm, a 20 gauge shotgun, on his person. Defense counsel filed a motion to dismiss on the grounds that as per F.S. § 790.001(6) ,1 F.S.A. this particular firearm could not readily be converted to expel a projectile by the action of an explosive. The defendant had the shotgun broken down into two separate pieces. He had the barrel of the gun under his left arm inside his shirt, and it extended down into his pants. The defendant then had the stock of the gun inside the front of his shirt. The shells for the gun were in the defendant’s right pants pocket. The trial court granted defendant’s motion after a hearing thereon. The state now appeals the order. We reverse.
During the hearing on defendant’s motion to dismiss the gun itself was marked as an exhibit and introduced into evidence. The arresting officer testified that the defendant could have removed the gun from beneath his clothing, assembled the gun for use, and loaded it in under 30 seconds.
*146Indeed, some could reach a different conclusion than that reached by the trial judge and hold that as a matter of law this firearm could quickly be assembled thereby giving the defendant ample opportunity to wield the gun in a manner which could easily inflict death or grievous bodily injury on its victim. Clearly the evidence presented creates a factual issue which should and can only be determined by a jury.
Therefore, the order is quashed and the cause is remanded with instructions to proceed in a manner not inconsistent with this opinion.
HOBSON, Acting C. J., and MANN and McNULTY, JJ., concur.
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