Special Alert

Given the frequency that firearms are recovered incident to a DUI stop and arrest, an a recent restatement of the law by the Florida Supreme Court, an update on carrying a concealed firearm is set out.

Florida Statute 790.01(2) makes it unlawful (3rd degree felony) to “carry a concealed firearm on or about (one’s) person.” § 790.001(2), F.S., defines “concealed firearm” as any firearm “carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.” There are exceptions, i.e. persons with a concealed weapons permit, firearms securely encased inside a motor vehicle.

All cases construing this statute refer back to the Ensor decision decided by the Florida Supreme Court in 1981. (Ensor v. State, 403 So.2d 349 (Fla. 1981). So when the Court was called upon most recently to reinterpret the carrying a concealed firearm law it was no surprise that they too looked to Ensor for guidance. See, James Dorelus v. State, 24 FLW S457 (Sept. 30, 1999).

In Ensor the Florida Supreme Court ruled that the issue of whether a weapon is concealed within the meaning of the statute is always for the jury to resolve. In Dorelus the Court receded from Ensor and ruled that the issue of concealment is ordinarily an issue for the jury. That is, it is a factual question for the jury to determine and not a legal issue for the trial judge to rule upon most, not all, of the time. In other-words the defendant can seek a ruling from the trial court pre-trial that the firearm was not concealed as a matter of law, and thereby deny the State a trial on the issue.

The Court in Dorelus cited with approval the Ensor decision in defining “concealed’ and ordinary sight.” In Ensor the Court held that for a weapon to be concealed within the meaning of the statute it need not be absolutely invisible. The Ensor Court also held that the statutory phrase “ordinary sight of another person,” means “the casual and ordinary observation of another in normal associations of life.” However, the Dorelus Court went on to state “…we also reject the proposition that simply because a portion of a weapon cannot be seen upon casual observation the issue is automatically for the jury.” Moreover, the Court went on to rule that the focus of the reviewing court should be “the manner in which the weapon is carried…The crux of concealment is the location of the weapon in the vehicle.”

“While the statute does not allow for hard-and-fast rules, variables that can be taken into consideration by the trial court in evaluating whether the weapon has been carried in such a manner as to be hidden from ordinary sight include the location of the weapon within the vehicle, such as the floorboard, the seat, a seat pocket, or an open console. The court should also consider whether, and to what extent, the weapon was covered by another object, such as a sheet or towel. In addition, although the specific intent of the defendant to conceal the weapon is not an element of the crime, the court may consider testimony that the defendant utilized his body in such a way as to conceal a weapon that would otherwise have been detectable by ordinary observation.” (Dorelus at S458).

The Court concluded with the following sage advice, “In considering these and other variables, in all instances common sense should prevail. The focus should remain on whether the weapon was carried in such a manner as to conceal it from ordinary sight.”

We would like to thank State Attorney Barry Krischer for the Fifteenth Judicial Circuit, for permitting us to publish this article. From time to time we will be featuring articles and memorandums by other prosecutors.

Approved by:
Enoch J. Whitney
General Counsel