“It Was Right There!”: When a Judge Can Dismiss Your Concealed Weapon Charge

By: John Guidry

Here are a few basic principles of any criminal justice system:

• Juries are the fact-finders.
• Judges are the referees, calling balls and strikes.

But what happens when the facts of a case are so weak that there is no need for a jury trial? We defense attorneys ask the Judge to step into the fray and make a factual determination to dismiss the case. This is called a Motion to Dismiss. It tells the court: “Even if everything the police say is true, it’s not a crime.”

We are going to take a look at one such waste of taxpayer money found in O.S. v. State, 120 So. 3d 130 (Fla. 3d DCA 2013).

Did the officer say he saw the weapon “immediately”?

Then it wasn’t concealed. Call John today at (407) 423-1117.

The Case: O.S. v. State (The Brass Knuckles)

O.S. was convicted of Carrying a Concealed Weapon (brass knuckles) in his vehicle.

• The Stop: He was pulled over for a bad tag light (a classic pretext stop).
• The Discovery: The officer asked him to step out. Once the door opened, the officer “could observe the brass knuckles sitting in the pocket by the driver’s door.”

The Million Dollar Question: Who gets to decide if it was “concealed”—the Judge or the Jury? Usually, it’s the jury. But in this case, the defense attorney got the officer to admit on the stand that he recognized the weapon “right away.”

The “Dorelus” Factors (How to Prove It Wasn’t Hidden)

Florida Statute 790.001 defines a concealed weapon as one carried “in such a manner as to conceal the weapon from the ordinary sight of another person.”

The Appeals Court ruled that this issue didn’t need a jury; the Judge should have dismissed it “as a matter of law.” They relied on the Florida Supreme Court case Dorelus v. State, which sets out a 3-part test:

1. Location: Was the weapon covered by anything? (No, it was sitting open in the door pocket).
2. Movement: Did the defendant move his body to hide it? (No).
3. Immediate Recognition: Did the officer see it instantly? (Yes).

The Ruling: Because the officer testified he saw the knuckles “right away,” and because O.S. admitted to them immediately, the weapon was not concealed.

“Where the officer’s observation is coupled with the facts discussed above, we have no difficulty in holding that the weapon was not concealed as a matter of law.”

The conviction was overturned.

John’s 2026 Update: The “Permitless Carry” Trap

Note: In 2013, you needed a permit for guns and weapons. In 2026, the rules are split.

1. The Firearm Freedom (HB 543) As of July 1, 2023, Florida is a Permitless Carry state.

• The Rule: If you are legally allowed to own a gun, you can carry it concealed without a license.
• The Effect: If O.S. had a handgun in his door pocket in 2026, he likely wouldn’t be charged at all (assuming he was over 21 and not a felon).

2. The Brass Knuckles Trap Here is where it gets tricky. The Permitless Carry law allows you to carry weapons if you meet the criteria for a license (F.S. 790.06).

• The Problem: Florida Statute 790.06 authorizes licenses for handguns, knives, billies, and tear gas—but it does not list “metallic knuckles” as a licensable weapon.
• The Consequence: Because you technically cannot get a license for brass knuckles, the Permitless Carry law likely does not apply to them. This means carrying concealed brass knuckles is still a crime in 2026, while carrying a loaded Glock is not.

3. Why O.S. Still Matters Because the new law doesn’t save you from a brass knuckles charge, the O.S. defense is your only hope.

• The Defense: We argue that because the knuckles were visible in the door pocket (or cup holder), they were not concealed under the Dorelus standard. If they aren’t concealed, you aren’t violating the concealed weapon statute—regardless of the weird licensing loophole.

Don’t Let Them Guess You Into a Conviction

If the officer saw the item immediately, it wasn’t hidden. Don’t let the State claim it was “concealed” just because they want to make an arrest.

Call me at (407) 423-1117. Let’s file that Motion to Dismiss.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.