Under Florida law, it is a criminal act for person to knowingly carry a concealed
weapon on his or her person. If you have been arrested for carrying a concealed
weapon in Jacksonville, FL, contact an experienced Jacksonville Concealed Weapon
Defense Attorney to discuss your legal options. Carrying a concealed weapon is serious
offense, and an attorney is a critical asset for avoiding the devastating consequences
of a conviction.
How is “Carrying a Concealed Weapon” Defined Under Florida Law?
The offense of Carrying a Concealed Weapon is defined under Section 790.01, Florida
Statutes. The statute provides that “a person who carries a concealed weapon or
electric weapon or device on or about his or her person commits a misdemeanor of
the first degree.” As a first degree misdemeanor, Carrying a Concealed Weapon is
punishable by up to 365 days in jail.
To prove the offense of Carrying a Concealed Weapon at trial, the prosecution must
establish the following two elements beyond a reasonable doubt: (1) the accused knowingly
carried on or about his person the alleged weapon, and (2) the weapon was concealed
from the ordinary sight of another person. Thus, the defendant’s knowledge of his
or her possession of the weapon is a required element of the offense. Dorelus v.
State, 747 So. 2d 368 (Fla. 1999). He or she must know of the weapon’s presence
on or about his or her person. However, intent to conceal the weapon is not an element
the prosecution is required to prove.
A valid conviction of the crime of Carrying a Concealed Weapon (or firearm) must
also be based on a showing of either “actual possession” or “constructive possession.”
Wilcox v. State, 522 So. 2d 1062 (Fla. 3d DCA 1988); Williams v. State, 724 So.
2d 1214 (Fla. 4th DCA 1998). Actual possession exists where an accused has physical
possession of the prohibited object and knowledge of such physical possession. Hively
v. State, 336 So.2d 127 (Fla. 4th DCA 1976); Willis v. State, 320 So.2d 823 (Fla.
4th DCA 1975). Where a defendant is not in actual possession of a firearm, constructive
possession must be established. Dupree v. State, 705 So. 2d 90 (Fla. 4th DCA 1998).
Constructive possession exists where an accused does not have physical possession
of weapon, but (1) knows it is within his presence, (2) has the ability to maintain
control over it, and (3) knows of the illicit nature of the weapon. Smith v. State,
687 So. 2d 875 (Fla. 2d DCA 1997). Williams v. State, 724 So. 2d 1214, 1215 (Fla.
4th Dist. 1998).
In addition to possession and knowledge, the prosecution must also establish the
weapon in question was in fact “concealed.” For a weapon to be concealed, it must
be (1) on or about the person and (2) hidden from the ordinary sight of another person.
The term “on or about the person” means physically on the person or readily accessible
to him. This generally includes the interior of an automobile and the vehicle’s glove
compartment, whether or not locked.
The term “ordinary sight of another person” means the casual and ordinary observation
of another in the normal associations of life. See Ensor v. State, 403 So. 2d 349,
354 (Fla. 1981). A weapon need not be totally hidden from view to constitute a concealed
weapon. Id. at 353-54. In Dorelus v. State, 747 So. 2d 368, 371 (Fla. 1999), the
Florida Supreme Court noted that the issue of whether the weapon is hidden from the
ordinary sight of another turns on various factors including, “the location of the
weapon within the vehicle” and whether the weapon is covered or obstructed by something.
A court or jury may also consider the nature and type of weapon involved. Id. at
372. Thus, whether the weapon was handgun or rifle, or small knife or large hunting
knife, will all affect the inquiry into concealment.
Lastly, in a Florida prosecution for Carrying a Concealed Weapon, the prosecution
must establish that the object carried by the accused constitutes an actual “weapon”
within the meaning of the statute. Section 790.001, Florida Statutes, defines “Concealed
Weapon” as “any dirk, metallic knuckles, slingshot, billie, tear gas gun, chemical
weapon or device, or other deadly weapon.” Thus, to be convicted under Florida’s
concealed weapon statute, the defendant must have carried and concealed one of the
items listed in the statute, or a weapon considered to be a “deadly weapon.”
Florida courts have defined the term “deadly weapon” as “any instrument which will
likely cause death or great bodily harm when used in the ordinary and usual manner
contemplated by its design and construction.” SeeRobinson v. State, 547 So. 2d
321, 323 (Fla. 5th DCA 1989). An object can become a deadly weapon if its sole modern
use is to cause great bodily harm. R.V. v. State, 497 So. 2d 912 (Fla. 3d DCA 1986).
In addition, an object can be construed as a deadly weapon because of its use or
threatened use during a crime. Robinson, 547 So. 2d at 323.
Example: Defendant is pulled over by police during a DUI traffic stop. Concealed
in the Defendant’s vehicle was an ice pick. Defendant is later charged with carrying
a concealed weapon. Held: the ice pick is not a concealed weapon within the meaning
of the concealed weapons statute. The use of an ice pick in the ordinary manner contemplated
by its design was not to harm others, and there was no evidence that the defendant
used the ice pick during the commission of a crime or in a threatening manner. SeeState v. Tremblay, 642 So. 2d 64 (Fla. 4th DCA 1994).
Several types of instruments are specifically exempted from the definition of “weapon”
as used in the Florida “Carrying a Concealed Weapon” statute. These include a common
pocketknife, plastic knife, or blunt-bladed table knife.
Contrary to popular belief, there is no bright-line rule or definition of “pocketknife”
under the concealed weapon law. Whether an instrument qualifies as a “pocket knife”
is generally a question for the jury. Walls v. State, 730 So. 2d 294, 294-295 (Fla.
1st Dist. 1999). However, the Florida Supreme Court has established that a 3.75 inch
blade is a “common pocketknife” within the meaning of the statute. L.B. v. State,
700 So. 2d 370, 373 (Fla. 1997). At least one other appellate court in Florida has
held that a four-inch blade not used in a threatening manner is “common pocket knife”
exempted from the statute. J.R.P. v. State, 979 So. 2d 1178 (Fla. 3d DCA 2008). Although
these cases provide guidance on the definition of pocketknife, the outcome may change
in an individual case depending on the unique facts and circumstances involved. See
J.D.L.R. v. State, 701 So. 2d 626 (Fla. 3d DCA 1997) (holding that a foldable knife
with a pointed 3-inch blade, notched combat-style grip, and a large metal hilt guard,
was not a “common pocketknife”).
If you have been charged with Carrying a Concealed Weapon in Jacksonville, FL, contact
an experienced Jacksonville criminal attorney for a free consultation. There are
many defenses available to contest this type of charge and representation by a qualified
criminal defense attorney is essential to avoid a conviction or to mitigate potential