State v. Ware

253 So. 2d 145, 1971 Fla. App. LEXIS 5835

• Court: District Court of Appeal of Florida
• Decided: October 6, 1971
• Docket: No. 70-903
• Status: Published

Opinion

PER CURIAM.

On October 1, 1970, an information was filed against appellee charging him with a violation of F.S. § 790.001(2), F.S.A. by carrying a concealed firearm, a 20 gauge shotgun, on his person. Defense counsel filed a motion to dismiss on the grounds that as per F.S. § 790.001(6) ,¹ F.S.A. this particular firearm could not readily be converted to expel a projectile by the action of an explosive. The defendant had the shotgun broken down into two separate pieces. He had the barrel of the gun under his left arm inside his shirt, and it extended down into his pants. The defendant then had the stock of the gun inside the front of his shirt. The shells for the gun were in the defendant’s right pants pocket. The trial court granted defendant’s motion after a hearing thereon. The state now appeals the order. We reverse.

During the hearing on defendant’s motion to dismiss the gun itself was marked as an exhibit and introduced into evidence. The arresting officer testified that the defendant could have removed the gun from beneath his clothing, assembled the gun for use, and loaded it in under 30 seconds.

Indeed, some could reach a different conclusion than that reached by the trial judge and hold that as a matter of law this firearm could quickly be assembled thereby giving the defendant ample opportunity to wield the gun in a manner which could easily inflict death or grievous bodily injury on its victim. Clearly the evidence presented creates a factual issue which should and can only be determined by a jury.

Therefore, the order is quashed and the cause is remanded with instructions to proceed in a manner not inconsistent with this opinion.

HOBSON, Acting C. J., and MANN and McNULTY, JJ., concur.

1 . F.S. § 790.001(6) “Firearm” means any weapon (including a starter gun) which will, or is designed to or may readily be converted to, expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term “firearm” shall not include an antique firearm.