Definition of Carrying a Concealed Firearm
The crime of carrying a concealed firearm is defined in Section 790.01(2), Florida Statutes. The law provides that “a person who carries a concealed firearm on or about his person commits a felony of the third degree.”
To prove the offense at trial, the State must establish the following two elements beyond a reasonable doubt:
- The defendant knowingly carried on or about his person a firearm;
- The firearm was concealed from the ordinary sight of another person.
- See Fla. Std. Jury Instr. (Crim) 10.1
Knowledge of Possession
In a concealed firearm prosecution, the element of knowledge is satisfied where the defendant is aware that the firearm is in his or her possession. There is no requirement that the accused intended to “conceal” the gun. Dorelus v. State, 747 So. 2d 368, 371 (Fla. 1999).
‘On or About the Person’
The phrase “on or about the person” means physically on the person or readily accessible to him/her. This generally includes the interior of an automobile and the vehicle’s glove compartment, whether or not locked. Ensor v. State, 403 So. 2d 349 (Fla. 1981).
Ordinary Sight of Another Person
The phrase “ordinary sight of another person” means the casual and ordinary observation of another in the normal associations of life. Ordinary observation by a person other than a police officer does not generally include the floorboard of a vehicle, whether or not the weapon is wholly or partially visible. See Ensor, 403 So. 2d at 354.
Ordinary Observation Standard
To be “concealed” within the meaning of the statute, a firearm does not have to be completely invisible or out of view. Ultimately, the question of concealment will turn on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm. Dorelus, 747 So. 2d at 371.
Penalties for Carrying a Concealed Firearm
The penalties for Carrying a Concealed Firearm in Florida are severe. The offense is generally classified as a third degree felony, punishable by up to 5 years in prison or 5 years of probation, and a $5,000 fine.
The potential for significant incarceration in a concealed firearm case is real. Prosecutors in many judicial circuits will frequently begin negotiations with offers that range from 13 to 16 months Florida State Prison.
These offenses are taken seriously by the State Attorney’s Office, and, for this reason, it is critical to hire an attorney in the early stages of the case (immediately following arrest) so that proper mitigation can be presented. A delay in presenting exculpatory or mitigating evidence before arraignment can make the difference between prison and a non-prison resolution.
Defenses to Carrying a Concealed Firearm
Under Florida law, there are numerous defenses available to contest a charge of Carrying a Concealed Firearm. Some of the most common examples include:
- The defendant was not in possession of the firearm (not carries on or about his person);
- Lack of proof as to knowledge of the firearm;
- Weapon was not readily accessible;
- Weapon was within ordinary sight;
- Weapon not found in the defendant’s exclusive control, and thus knowledge of weapon’s presence cannot be inferred;
- Defendant had a permit;
Concealed Weapon Exceptions
In addition to the defenses described above, Florida law contains several concealed weapon exceptions, where criminal liability will not attach.
Home and Place of Business
Under Section 790.25(3)(n), Florida Statutes, it is not unlawful for a person to carry a concealed weapon “at his or her home or place of business.”
The phrase “at his or her home or place of business” refers to an individual’s surrounding property as well as the buildings and structures situated thereon. Collins v. State, 475 So. 2d 968, 969 (Fla. 4th DCA 1985). If the firearm is possessed at a business, the business does not have to be owned by the defendant himself. State v. Commons, 592 So. 2d 317, 318 (Fla. 3d DCA 1991).
The term “business” includes premises where the individual is employed by another. Commons, 592 So. 2d at 318. However, the exception contained in Section 790.25(3)(n) does not apply where the defendant is in another person’s home. Florida courts have interpreted the exception to apply only to the accused’s own home. State v. Paulk, 588 So. 2d 60 (Fla. 5th DCA 1991).
Another well-known exception is where the concealed firearm or weapon is possessed in a private conveyance. Under Section 790.25(5), Florida Statutes, it is lawful and is not a violation of Section 790.01 for a person 18 years of age or older to possess a concealed firearm or other weapon for self-defense or other lawful purpose within the interior of a private conveyance, without a license, if the firearm or other weapon is securely encased or is otherwise not readily accessible for immediate use.
Contact an Attorney
If you are charged with Carrying a Concealed Firearm, you may have defenses available to contest the charge or to avoid the harsh penalties of a conviction. Contact Hussein & Webber, PL today for a free consultation. Our attorneys handle cases throughout Northeast and Central Florida.