HOWARD E. DONALD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Howard E. Donald was convicted of carrying a concealed firearm, but the Florida Second District Court of Appeal reversed, finding the circumstantial evidence insufficient to prove beyond a reasonable doubt that the firearm was concealed from ordinary sight.
The evidence was insufficient to prove concealment beyond a reasonable doubt. While proof of concealment is an essential element of the crime, circumstantial evidence used to prove an essential element must be conclusive and inconsistent with any other reasonable hypothesis but guilt. The evidence here was consistent with a reasonable hypothesis of innocence.
[1] Proof of concealment is an essential element of the crime of carrying a concealed firearm.
[2] Circumstantial evidence relied upon to prove an essential element of a crime must be of a conclusive nature and inconsistent with any other reasonable hypothesis but that…
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Join FLexlaw to unlock all legal intelligence“Proof of concealment is an essential element of the crime which must be proven beyond a reasonable doubt.”
Establishes that concealment is a required element that must be proven to the highest standard of proof.
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Join FLexlaw to unlock all legal intelligenceDuring an investigation of a report that an intoxicated man was firing a pistol, an officer hid near a building and approached appellant from the rear…
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PER CURIAM.
Appellant, Howard E. Donald, was charged by information with carrying a concealed firearm in violation of Section 790.01, Florida Statutes. After a jury trial appellant was found guilty as charged.
The critical question for our determination on this appeal is whether the purely circumstantial evidence introduced by the state was sufficient to establish that appellant had carried a pistol “in such a manner as to conceal said firearm from the ordinary sight of another person,” as required by the concealed firearm statute. Section 790.001(2), Florida Statutes (1973) (emphasis added). Proof of concealment is an essential element of the crime which must be proven beyond a reasonable doubt. Sutton v. State, 327 So. 2d 234 (Fla. 1st DCA 1976). When circumstantial evidence is relied on to prove an essential element of the crime it must be of a conclusive nature and inconsistent with any other reasonable hypothesis but that of guilt. Harrison v. State, 104 So. 2d 391 (Fla. 1st DCA 1958); see Hall v. State, 303 So. 2d 428 (Fla. 2d DCA 1974).
The arresting officer testified at trial that pursuant to investigation of a complaint that an intoxicated man was firing a pistol he concealed himself near the building where the man was alleged to be. As appellant came out of the building he headed away from the officer. Although appellant had been seen briefly from the front as he emerged from the building, it was impossible to tell if he was in possession of a gun due to the darkness and interference from objects in the immediate area. The officer approached appellant from the rear and ordered him to stop. In the course of the “pat down” the officer felt a pistol lodged in the belt on the front side of appellant. The officer stated that he could feel part of a pistol butt which protruded from appellant’s pants, but he could not say whether appellant’s shirttail would have obscured sight of the pistol if he had viewed appellant from the front. Neither that officer nor any other witness had clearly seen appellant from the front prior to the removal of the weapon. While the arresting officer is to be highly commended for his fair and impartial testimony, we conclude that the evidence presented was not inconsistent with a reasonable hypothesis of innocence and did not conclusively prove that appellant was guilty.
For these reasons we are compelled to reverse the judgment and sentence of the trial court and remand with directions to the trial court to enter an order discharging appellant.
REVERSED and REMANDED with directions.
BOARDMAN, C. J., and GRIMES and SCHEB, JJ., concur.
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Quiroga v. State, 364 So. 2d 47 (Fla. 3d DCA 1978)…not concealed. Proof of concealment is an essential element of the crime of carrying a concealed firearm and such element must be proven beyond a reasonable doubt. Here the evidence before the jury was not susceptible of such proof. Donald v. State, 344 So. 2d 633 (Fla.2d DCA 1977). Accordingly, the judgment and sentence of the trial court are reversed and the cause is remanded with directions that appellant be discharged. Reversed and remanded with directions.…
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Nadean O. McARTHUR v. Nourse, 369 So. 2d 578 (Fla. 1979)…d v. State, 62 So. 2d 41 (Fla.1952); Lyons v. State, 47 So. 2d 541 (Fla.1950); Frank v. State, 121 Fla. 53, 163 So. 223 (1935); Bellamy v. State, 96 Fla. 808, 119 So. 137 (1928); Tillman v. State, 353 So. 2d 948 (Fla. 1st DCA 1978); Donald v. State, 344 So. 2d 633 (Fla. 2d DCA 1977); Sanders v. State, 344 So. 2d 876 (Fla. 4th DCA 1977); Interest of B. S. v. State, 320 So. 2d 459 (Fla. 3d DCA 1975). . In re Florida Rules of Criminal Procedure, 196 So. 2d 124, 164-65, 167 (Fla.1967). . Tillman v. State, 353 S…
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Powell v. State, 369 So. 2d 108 (Fla. 1st DCA 1979)…mpletely revealed weapon would not be a concealed weapon, and dismissal on motion would be proper. But it does not follow that a weapon, in order to be concealed, must be completely concealed.” (281 So. 2d at 398). Subsequently, in Donald v. State, 344 So. 2d 633 (Fla. 2d DCA 1977), the court reversed a conviction for carrying a concealed weapon where a police officer had approached appellant from the rear and discovered a pistol tucked in the belt of the front of the pants during a “pat down” search, but te…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Harrison v. State, 104 So. 2d 391 (Fla. 1st DCA 1958)
- Carlton Shipman Sutton v. State, 327 So. 2d 234 (Fla. 1st DCA 1976)
- Hall v. State, 303 So. 2d 428 (Fla. 2d DCA 1974)