WOODROW D. PORTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the crime of attempted possession of a firearm by a convicted felon exists in Florida.
Appellant was charged with possession of a firearm by a convicted felon and found guilty of attempted possession. He appealed, contending the crime di…
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GRIMES, Chief Judge.
Appellant was charged with possession of a firearm by a convicted felon and found guilty of attempted possession of a firearm by a convicted felon. He now contends that he was convicted of a nonexistent crime.
The question of whether there can be crimes involving attempted possession continues to recur. In State v. Thomas, 363 So. 2d 1348, No. 52,759 (Fla., filed September 21, 1978), our supreme court recently held that there is no crime of attempted possession of burglary tools. The court reasoned that the tools used in burglary are innocent by themselves and that no crime is committed until these tools are in the actual or constructive possession of a person with the requisite criminal intent. In reaching its conclusion the court said:
Although it may be possible for a person to be convicted of an attempt to possess items which are contraband per se, burglary tools are not contraband per se State v. Thomas, supra at 1350.
Like burglary tools, a firearm is not contraband, per se; yet, in the hands of a convicted felon, a firearm becomes equivalent to contraband for purposes of Section 790.23, Florida Statutes (1977). The Fourth District Court of Appeal has consistently held that attempted possession of contraband is a crime. Silvestri v. State, 332 So. 2d 351 (Fla. 4th DCA 1976); McClam v. State, 288 So. 2d 285 (Fla. 4th DCA 1974); Nichols v. State, 248 So. 2d 199 (Fla. 4th DCA 1971).
We cannot say that it is logically impossible to visualize a factual setting in which a convicted felon could attempt to gain possession of a firearm but fail in the perpetration. See Section 777.04(1), Florida Statutes (1977). Therefore, we hold that there exists in Florida the crime of attempted possession of a firearm by a convicted felon.
AFFIRMED.
HOBSON and RYDER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Devard B. Burney v. State, 402 So. 2d 38 (Fla. 2d DCA 1981)…The appellant preserved the issue by properly objecting to the court’s failure to give the requested instruction. This court has recognized that there does exist the crime of attempted possession of a firearm by a convicted felon. Porter v. State, 363 So. 2d 41 (Fla.2d DCA 1978). Ordinarily, we would be required to reverse for failure to give the required instruction. Lomax v. State, 345 So. 2d 719 (Fla.1977); State v. Terry, 336 So. 2d 65 (Fla.1976). Those cases speak in terms of requiring lesser included…
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Boston v. State, 411 So. 2d 1345 (Fla. 1st DCA 1982)…and other courts in the state, the attempted possession of a weapon by a state prisoner must be recognized as a crime. See, Hall v. State, 400 So. 2d 102, (Fla. 1st DCA 1981); Thorpe v. State, 377 So. 2d 221 (Fla. 1st DCA 1977); and Porter v. State, 363 So. 2d 41 (Fla. 2nd DCA 1978), cert. den. 368 So. 2d 1372 (Fla.1979). We agree, however, with the state’s contention that the trial court denied the requested attempt instruction because, in the trial judge’s view, the evidence was not susceptible to an inter…
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Thorpe v. State, 377 So. 2d 221 (Fla. 1st DCA 1979)…hat they have been disposed of by decisions of this or other appellate courts of the State, and do not merit further detailed treatment. Attempted possession of a firearm by a convicted felon is an offense under the laws of Florida. Porter v. State, 363 So. 2d 41 (Fla. 2nd DCA 1978). A pistol is a firearm within the meaning of Section 790.-001(6), Florida Statutes. Martin v. State, 367 So. 2d 119 (Fla. 1st DCA 1979). Appellant’s contention that he has been subjected to “triple jeopardy” and “triple punishmen…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Silvestri v. State, 332 So. 2d 351 (Fla. 4th DCA 1976)
- Nichols v. State, 248 So. 2d 199 (Fla. 4th DCA 1971)
- McCLAM v. State, 288 So. 2d 285 (Fla. 4th DCA 1974)