If you are a convicted felon in Miami, you are not allowed to carry a concealed weapon. In a recent appellate decision, the court considered an appeal from conviction for possession of a concealed weapon by a convicted felon. If you are facing firearms charges, contact a Miami gun crime attorney as soon as possible.
The defendant raised several arguments on appeal. The first argument he raised was that a firearm was not a weapon under Florida Statutes section 790.001(3)(a) and therefore couldn’t be treated as a concealed weapon. The appellate court explained that phrases have to be read within their context, not in isolation and a law needs to be interpreted to provide effect to every clause it contains so that there is harmony or meaning.
A concealed weapon under section 790.001 includes any firearm carried on or about someone so as to hide the firearm from ordinary sight. Firearms include any weapon that can be easily converted to send out a projectile or is designed to do so. It also includes the receiver or frame of that type of weapon. Weapons can include metallic knuckles, tear gas gun, dirk, chemical weapon or device or another deadly weapon carried on someone so as to hide the weapon from ordinary sight.
The defendant argued that the appellate court should following an earlier holding that a gun is not a weapon. However, the appellate court distinguished this holding, explaining that a gun is expressly listed as a weapon under section 790.001(6) and the earlier holding didn’t consider that. It reasoned that it’s a basic aspect of legal interpretation to avoid literal interpretations that result in an absurd conclusion. Accepting the defendant’s argument would mean that firearms aren’t deadly weapons, an absurd conclusion that runs counter to case law.
The defendant also argued that the lower court had made a fundamental error by instructing the jury on possession of a concealed weapon by a convicted felon, rather than carrying a concealed weapon by a convicted felon. The appellate court explained that under section 790.23(1), it’s illegal for a convicted felon to have custody, possession, control or care of a firearm or to carry a concealed weapon. In this case, the jury instructions repeated “possession of a concealed weapon,” which isn’t an offense that exists. The defendant was found guilty of a crime that doesn’t exist.
The appellate court reasoned that “possession of a concealed weapon by a convicted felon” is a broader offense than carrying. Therefore, the jury had convicted the defendant of a broad crime that didn’t exist, which made the mistaken instruction a fundamental error. Nobody can be convicted of a crime that doesn’t exist.
The appellate court reversed the conviction and sent it back for a new trial hinging on the crime of carrying a concealed weapon by a convicted felon. It noted that a retrial where the initial trial had to do with a nonexistent crime didn’t violate a bar against double jeopardy where the nonexistent crime included all the elements of the correct crime to be charged. The other issues were affirmed.
If you’re charged with a firearm offense in Miami, you should hire a skillful criminal defense attorney. Call The Hoffman Firm at (305) 249-0090 or (800) 223-1866, or contact us via our online form.