CHARLES NORMAN CHRISTIAN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Christian was convicted of carrying a concealed firearm and illegal marijuana possession following a vehicle search. The court reversed, finding the state's evidence insufficient to prove the firearm was concealed under Florida law, and therefore the search lacked proper legal basis.
The state failed to prove all elements of carrying a concealed firearm because the gun's butt was visible to the officer, meaning it was not hidden from ordinary sight as required by statute. Consequently, the vehicle search lacked legal justification and the marijuana should have been suppressed.
[1] A conviction for carrying a concealed firearm requires proof that the firearm was hidden from ordinary sight.
[2] If a firearm is in plain view, it cannot simultaneously be considered concealed for the purpose of a concealed firearm charge.
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Join FLexlaw to unlock all legal intelligence“the firearm (a .38 caliber Colt automatic pistol) was concealed as contemplated by Fla.Stat. § 790.01”
Establishes the legal standard for concealment under Florida statute
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Join FLexlaw to unlock all legal intelligenceA police officer stopped Christian's vehicle for speeding and shined his light toward the passenger floor, observing what appeared to be the butt of a…
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HENDRY, Judge.
The appellant was adjudicated guilty of the offenses of carrying a concealed firearm and illegal possession of marijuana. He was sentenced to serve a total of three years imprisonment.
On appeal, appellant raises two points. First, he contends that the state’s evidence was insufficient to establish that the firearm (a .38 caliber Colt automatic pistol) was concealed as contemplated by Fla.Stat. § 790.01, F.S.A. Second, appellant asserts that there was no legal basis for a search of the vehicle in which the appellant was riding as a passenger, and therefore the marijuana and the gun seized therein should have been suppressed.
In response to appellant’s contentions, the state has taken a contradictory position. The state argues that the firearm was concealed within the meaning of Fla. Stat. § 790.001(2), F.S.A. in that it was hidden “from the ordinary sight of another person.”
Yet, under point two the state urges that the search was justified because a portion of the firearm was within the plain view of the officer, therefore affording probable cause to search the vehicle.
Obviously, either the firearm was within the ordinary sight of another or it was not. A police officer testified that when he shined his light in the passenger’s side of the vehicle towards the floor (after stopping the car for speeding) he saw what appeared to be the butt of a gun protruding from the seat in which the appellant was sitting.
The officer placed the appellant under arrest for carrying a concealed firearm, then searched the car, finding the marijuana.
In our view, the state did not prove all of the elements of the crime of carrying a concealed firearm, and we think it follows that the search of the car also was not permissible. State v. Day, Fla.App.1974, 301 So. 2d 469, opinion filed October 15, 1974; Lawson v. State, Fla.App.1971, 251 So. 2d 683; Attorney General’s Opinion 072-161, May 2, 1972.
Therefore, for the reasons stated and upon the authority cited, the judgment and sentence appealed are reversed with directions to discharge the appellant from custody.
Reversed with directions.
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Citator
Cited By
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Elton E. Ensor v. State, 403 So. 2d 349 (Fla. 1981)…ion for certiorari to review a decision of the Fourth District Court of Appeal, State v. Ensor, 375 So. 2d 13 (Fla. [*351] 4th DCA 1979), which we find directly conflicts with Porchay v. State, 321 So. 2d 439 (Fla. 1st DCA 1975); Christian v. State, 303 So. 2d 405 (Fla. 3d DCA 1974), cert. denied, 314 So. 2d 778 (Fla.1975); and State v. Day, 301 So. 2d 469 (Fla. 1st DCA 1974), cert. denied, 312 So. 2d 748 (Fla.1975). We grant the petition for review.1 The issue to be determined is whether an object observed f…1 / 3
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State v. Riocabo, 372 So. 2d 126 (Fla. 3d DCA 1979)…the firearm was visible to the officers. The court, in its order, set forth the grounds for its holding, as follows: “1. The only reason the officers suspected the defendant had a firearm was that it was visible to them. “2. In Christian v. State, 303 So. 2d 405, the District Court of Appeal of Florida, Third District, in 1974, held that a firearm visible to the officer, protruding from the seat of the vehicle, was not a concealed firearm. On that basis, the search of the car was not permissible. Christian…1 / 2
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State v. Christian, 314 So. 2d 778 (Fla. 1975)…Certiorari denied. 303 So. 2d 405. ADKINS, C. J., and BOYD, McCAIN, OVERTON and ENGLAND, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lawson v. State, 251 So. 2d 683 (Fla. 3d DCA 1971)
- State v. DAY, 301 So. 2d 469 (Fla. 1st DCA 1974)