Motion to Dismiss Concealed Firearm Charge

The Accused in the above styled cause hereby moves this court for an order dismissing the charge of carrying a concealed firearm against the Accused pursuant to Fla.R.Crim.P. 3.190(c)(4) and as grounds would show;

There are no material disputed facts and those upon which the State would rely for conviction herein do not constitute a prima facie case of guilt.

The material undisputed facts are as follows;

1. Officer Sean Smith of the Orange County Sherriff’s Office responded 1234 Walden Drive in reference to a verbal argument over a civil dispute.
2. While traveling westbound on Walden Drive, Officer Smith observed the Accused walking at a fast pace (slight jog) towards his patrol vehicle, left hand raised in the air, “right hand holding something inside his waistband, just forward of his right front pocket, which I suspected was a black in color handgun.”
3. Officer Smith then “quickly exited [his] vehicle and ordered the Accused to the ground with his hands out to his side. [The Accused] complied with [his] commands and was secured”.
4. The Accused admits that he had a handgun in his possession, and that he has no concealed weapons permit.
5. The Accused was arrested and charged by information with carrying a concealed firearm.

Wherefore, the material undisputed facts do not constitute a prima facie case of guilt against the Accused.

Section 790.001(2) of the Florida Statutes prohibits the carrying of a firearm in a manner that conceals the firearm from another person’s “ordinary sight.” According to our Florida Supreme Court, even though “concealment” is a jury question, it is proper for a defendant to file a motion to dismiss when the material issue at hand is “concealment”. As such, whether a weapon is “concealed” within the meaning of the concealed weapon statute is not automatically a question for the jury simply because a portion of the weapon cannot be seen upon casual observation. Dorelus v. State, 747 So.2d 368 (Fla. 1999).

In our case, Officer Smith observed what he “suspected was a black in color gun”. [See Arresting Affidavit, page 2] But the issue here is not resolved by what the officer says, but rather by what he does next. Upon seeing a “suspected” black gun, the officer “quickly exited [his] vehicle and ordered [the Accused] to the ground.” He exited his vehicle “quickly” because of his observation of a gun. Florida’s Supreme Court held in Dorelus that:

“although the observations of the police officer will not necessarily be dispositive, a statement by the observing officer that he or she was able to “immediately recognize” the questioned object as a weapon may conclusively demonstrate that the weapon was not concealed as a matter of law because it was not hidden from ordinary observation. On the other hand, the mere fact that an officer does not immediately observe the firearm does not mean that the question of concealment is automatically for the jury” Id. at 372.

The Florida Supreme Court’s analysis started with the very basics of a concealed weapons charge, citing a 1867 Florida Supreme Court case that is still good law to this day, noting:

“As was stated over a century ago, the prohibition against carrying concealed weapons is designed to prevent a person with a weapon from “taking some undue advantage over an unsuspecting adversary,” who is not aware that the person is carrying a weapon.” Sutton v. State, 12 Fla. 135, 136 (1867).

The facts in our case can benefit from the Florida Supreme Court’s analysis of their decisions from both the year 1999 and 1867, cited above. The question becomes whether or not the concealment allows a person to take “some undue advantage over an unsuspecting adversary, who is not aware that the person is carrying a weapon”. Id. No such facts of “undue advantage” or “unsuspecting” persons exist in our case. Officer Smith’s sworn arrest affidavit confesses that he knew the Defendant had a gun before he even exited his vehicle, for that is why he “quickly” exited his vehicle and immediately “ordered [the Accused] to the ground”. Whether or not the officer admits to immediately recognizing the object as a firearm is not relevant in light of the officer’s actions.

The Defendant admits that he had a gun inside his waistband, just forward of his right front pocket, for which the officer immediately ordered him to the ground. As we all know, the mere carrying of a firearm is not prohibited by Florida law. In Donald v. State, 344 So. 2d 633 (Fla. 2d DCA 1977), the Second DCA reversed a carrying a concealed weapons conviction where the firearm was tucked into Donald’s pants. Donald was approached from behind for a police pat down search. The officer felt a gun tucked in the belt of the front of Donald’s pants, but could not testify as to whether or not the shirt was obscuring the sight of the pistol due to the fact that the officer was conducting the search from behind. In overturning the conviction, the court recognized that a firearm may be partially concealed by virtue of being tucked into pants and not be a concealed firearm per Florida statutes.

A similar result was reached in Powell v. State, 369 So. 2d 108 (Fla. 1st DCA 1979), where a patrol officer noticed Powell walking with the butt of chrome-plated firearm protruding from his pocket. The court in Powell overturned his conviction for carrying a concealed firearm based upon the fact that the weapon was not concealed from the ordinary sight of another person. Id.

For the foregoing reasons, the Accused requests this court to dismiss the charge against him found in count 1 of the information, carrying a concealed firearm.

Respectfully submitted this 9th day of May, 2011.

The Law Firm of John Guidry, P.A.

BY: ____________________________
JOHN P. GUIDRY II, Esquire
Attorney for the Accused
320 N. Magnolia Ave. Suite B-1
Orlando, Florida 32801
Phone (407) 423-1117
Fax (407) 423-1118
Florida Bar Number 0990086

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by hand delivery to Office of the State Attorney, Office of the State Attorney, 415 North Orange Avenue, Orlando, Florida 32801 this 9th day of May, 2011.

__________________________
John P. Guidry II

The above statements contained in this motion are true, I am a witness to said facts, and I am executing this motion voluntarily and of my own free will, without coercion or undue pressure from anyone. The foregoing document was acknowledged before me this _____ day of ________, 2011, by _______________________ who has presented _____________ as identification and who did take an oath.

__________________________
The Accused

_________________________
NOTARY PUBLIC