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 three 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;
- At that time, the defendant was not licensed to carry a concealed weapon or firearm.
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 term “on or about the person” means physically on the person or readily accessible to him/her. Ensor v. State, 403 So. 2d 349 (Fla. 1981); Fla. Std. Jury Instr. (Crim) 10.1.
In cases involving vehicles (i.e. private conveyances), this element is not met where the firearm or weapon at issue is “securely encased or is otherwise not readily accessible for immediate use.” Section 790.25(5), Florida Statutes. Thus, a conviction for Carrying a Concealed Firearm can not be sustained where where an unloaded firearm is found hidden in the passenger compartment with ammunition kept separately in a closed center console. State v. Weyant, 990 So. 2d 675, 677-78 (Fla. 2d DCA 2008).
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. Ensor, 403 So. 2d at 354.
A firearm may be considered ‘concealed from ordinary sight’ so long as it is obscured or hidden in such a way that a person would not immediately recognize the object as a firearm. Id. at 355. Total invisibility or impossibility of viewing is not required for a weapon to be ‘concealed.’ State v. Benjamin, 187 So. 3d 352, 357 (Fla. 4th DCA 2016) (reversing dismissal of a concealed firearm charge where police could not immediately see a firearm hidden beneath a passenger seat, even though the weapon may have been theoretically visible from another vantage point).
The element of “ordinary sight” is not met, however, where all or part of a firearm is visible to officers and readily recognizable as a firearm. State v. Hodges, 305 So. 3d 313 (Fla. 3d DCA 2019)(citing Dorelus, 747 So. 2d at 371-73; Quiroga v. State, 364 So. 2d 47 (Fla. 3d DCA 1978)(holding that concealment element was not met where the firearm was partially and readily visible to officers).
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 include substantial jail or prison.
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 carried on or about his person);
- Lack of proof as to knowledge of the firearm;
- Weapon was not readily accessible or, in the case of private conveyances such as an automobile, was not readily accessible for immediate use (see below);
- Weapon was within ordinary sight;
- Weapon not found in the defendant’s exclusive control, and thus knowledge of the weapon’s presence, or possession of the weapon, cannot be proven;
- Defendant had a concealed carry license;
- The weapon was “securely encased” (see below) or not otherwise available for immediate use.
Concealed Weapon Exceptions
In addition to the defenses described above, Florida law contains several concealed weapon exceptions, where criminal liability will not attach or differing legal standards apply.
Florida’s criminal statute does not apply to the unlicensed carrying of concealed weapons or firearms where the weapon or firearm in question is “securely encased” within a motor vehicle or other ‘private conveyance.’ Section 790.25(5), Florida Statutes, provides:
[I]t is lawful and is not a violation of s. 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.
Under Section 790.001(17), “securely encased” means: (i) in a glove compartment, whether or not locked; (ii) snapped in a holster; (iii) in a gun case, whether or not locked; (iv) in a zippered gun case; or (v) in a closed box or container which requires a lid or cover to be opened for access.
Based on these provisions, Florida appellate courts have consistently held that it is not a violation of section 790.01 for a person to have an unlicensed concealed firearm inside a vehicle’s closed center console or other qualifying closed container.
- Bell v. State, 636 So. 2d 80, 81 (Fla. 2d DCA 1994) (closed center console);
- City of Miami v. Swift, 481 So. 2d 26, 27 (Fla. 3d DCA 1985) (closed center console);
- Gemmill v. State, 657 So. 2d 900, 901-02 (Fla. 4th DCA 1995) (closed box, which required a lid or cover to be opened for access);
- Trock v. State, 990 So. 2d 1195, 1196 (Fla. 5th DCA 2008) (zippered duffle bag);
- Alexander v. State, 477 So. 2d 557, 560 (Fla. 1985) (zippered purse);
- Uriquiola v. State, 590 So. 2d 497, 498 n.1 (Fla. 3d DCA 1991) (plastic pouch with closed flap).
No Immediate Usability (Private Conveyances)
Under Section 790.25(5), Florida Statutes, Florida’s concealed firearms statute does not apply in scenarios involving vehicles or other ‘private conveyances’ so long as the firearm in question is not “readily accessible for immediate use.”
“Readily accessible for immediate use” is defined under Section 790.001(16), Florida Statutes, to mean:
[t]hat a firearm or other weapon is carried on the person or within such close proximity and in such a manner that it can be retrieved and used as easily and quickly as if carried on the person.
Thus, where an unloaded gun is concealed in a car, but the ammunition is stored separately in a closed container, a Concealed Firearm charge must be dismissed because the firearm can not be retrieved and used as easily and quickly as if carried on the person. State v. Weyant, 990 So. 2d 675, 677-78 (Fla. 2d DCA 2008) (ammunition stored in center console); Striketaylor v. State, 997 So. 2d 488 (Fla. 2d DCA 2008) (ammunition stored in glove box).
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).
Fishing, Camping, and Hunting
Under Section 790.25(3)(h), Florida Statutes, concealed carry license requirements (Section 790.06), as well as the prohibitions on open carrying of firearms (Section 790.053), do not apply to “person(s) engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition.”
Unlawful Arrests Based Solely on Presence of Weapon
A law enforcement officer may not use the presence of a concealed weapon or firearm as the sole basis for detaining or arresting an individual. Kilburn v. State, 297 So 3d 671, 675 (Fla. 1st DCA 2020). Thus, where an officer approaches a vehicle, sees a portion of a weapon in the passenger compartment, and attempts to conduct an arrest or investigative detention solely on the basis of viewing a weapon, any evidence obtained as a result must be suppressed under the Fourth Amendment exclusionary rule. Id.
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.