JOHN THOMAS RASH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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John Thomas Rash was convicted of carrying a concealed weapon in violation of Florida Statute § 790.01 after a bench trial. He appealed, arguing he fell within the statutory exception allowing concealed firearms in one's home, but the appellate court affirmed, finding the trial judge properly rejected his testimony in favor of the officers' account of events.
The trial judge properly determined that defendant did not fall within the home exception because, based on the credible testimony of the police officers, defendant drew the firearm from underneath his shirt and initially presented it in a manner inconsistent with the statutory exception for carrying a concealed weapon within one's home.
[1] In a non-jury trial, the trial judge, as the trier of fact, has the authority to resolve conflicts in the evidence by accepting testimony deemed credible and rejecting te…
[2] A defendant is not entitled to the statutory exception for carrying a concealed firearm in one's home if the evidence supports a finding that the firearm was carried outs…
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Join FLexlaw to unlock all legal intelligence“Where there are conflicts in the evidence in a non-jury trial, it is within the province of the trial judge, sitting as the trier of the facts, to reject any testimony he finds to be untrue and rely upon that which he finds to be worthy of belief.”
Establishes the standard of appellate review for factual findings in bench trials and the deference given to trial court credibility determinations.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDefendant heard someone attempting to break into his apartment and took a gun outside to a walkway to investigate. Police arrived in response to a dis…
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PER CURIAM.
Defendant appeals his conviction for carrying a concealed weapon in violation of § 790.01, Fla.Stat. after a non-jury trial.
Defendant urges as reversible error the determination by the trial judge that he does not come within the statutory exception to § 790.01, Fla.Stat. as set forth in § 790.25, Fla.Stat., i. e. the carrying of a concealed firearm in one’s home. See also French v. State, Fla.App. 1973, 279 So. 2d 317.
Defendant testified that on the night in question, he heard someone attempting to break into his apartment and thereupon took a gun and went outside the building to a walkway. Satisfied that the burglars had fled, defendant remained on the walkway a few minutes and then started to return to his apartment when he was met by two City of Miami police officers who removed his gun and placed him under arrest. Defendant argues that at all times he had the gun in his right hand. The arresting officers testified that when they arrived on the scene, in response to a call with reference to a disturbance, a group of citizens indicated there was a person in the area with a firearm. Defendant was then pointed out to the officers who saw him at the corner of the apartment building going toward his apartment. Defendant drew a firearm from underneath his shirt and turned half way toward them. Upon seeing the officers had their firearms drawn defendant placed his weapon under his shirt, stepped up onto the walkway and started for his apartment which was 10 to 15 feet away.
Where there are conflicts in the evidence in a non-jury trial, it is within the province of the trial judge, sitting as the trier of the facts, to reject any testimony he finds to be untrue and rely upon that which he finds to be worthy of belief. Eizenman v. State, Fla.Apu.1961, 132 So. 2d 763; Hoover v. State, Fla.App.1968, 212 So. 2d 95.
The judge having concluded that the officers’ testimony was worthy of belief, we find that he was correct in determining that defendant did not come within the exception to § 790.01, Fla.Stat. See Facion v. State, Fla.App. 1974, 290 So. 2d 75.
We also reviewed defendant’s other point on appeal and find it to be without merit. See Crum v. State, Fla.App.1965, 172 So. 2d 24, 25; Wetherington v. State, Fla.App.1972, 263 So. 2d 294.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McNAIR v. State, 354 So. 2d 473 (Fla. 3d DCA 1978)…Section 790.25(3)(n), Florida Statutes (1975). This argument is without merit as McNair was carrying the pistol on his person when he was about 30 to 35 feet from his apartment. See Facion v. State, 290 So. 2d 75 (Fla. 2d DCA 1974); Rash v. State, 331 So. 2d 373 (Fla. 3d DCA 1976). Affirmed.…
Authorities Cited
- Crum v. State, 172 So. 2d 24 (Fla. 3d DCA 1965)
- Eizenman v. State, 132 So. 2d 763 (Fla. 3d DCA 1961)
- Wetherington v. State, 263 So. 2d 294 (Fla. 3d DCA 1972)
- Hoover v. State, 212 So. 2d 95 (Fla. 3d DCA 1968)
- French v. State, 279 So. 2d 317 (Fla. 4th DCA 1973)
- Facion v. State, 290 So. 2d 75 (Fla. 2d DCA 1974)