5D07-3030 Allie Brook v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-3030

Case Date: 01/05/2009

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2008

ALLIE BROOK, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed January 9, 2009 Appeal from the Circuit Court for Orange County, Alicia Latimore, Judge. James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D07-3030

PLEUS, R., Senior Judge. The defendant appeals from his conviction and sentence for carrying a concealed firearm after he pled nolo contendere. The sole point on appeal concerns whether the trial court erred in denying the defendant's motion to dismiss which was predicated on the fact that the defendant is an employee of the business premises on which he was found in possession of the

concealed firearm.

The defendant argued unsuccessfully below that subsection

790.25(3)(n), Florida Statutes, permits a person to possess a firearm in certain specific locations, including his or her place of business. The issue on appeal is a question of law and review is de novo. See State v. Walthour, 876 So. 2d 594 (Fla. 5th DCA 2004). Police officers entered a business after smelling cannabis emanating from the business. Several men, including the defendant, were observed playing cards, with cannabis on the table. The defendant was found in possession of a concealed firearm. He was charged by information with carrying a concealed firearm in violation of section 790.01(2), Florida Statutes (2006). The defense filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), averring the material facts established that the defendant was present at a closed business playing cards when the arresting officer entered and seized the handgun from under his shirt. The defendant orally amended his motion to reflect that he was an employee of the business where the incident took place. The State did not challenge this contention which comported with the police report. The State did note that the incident occurred at 9:00 p.m. when no lawful business was being conducted on the premises. The trial court denied the motion, explaining that the exemption relied upon by the defendant does not apply to persons having a concealed weapon at another person's place of business. The trial court relied upon State v. Paulk, 588 So. 2d 60 (Fla. 5th DCA 1991) which rejected a claim that the exemption encompassed a person's possession of a concealed firearm in another person's residence.

2

The defendant entered a negotiated plea of nolo contendere to the charge of possession of a concealed firearm, reserving his right to appeal the denial of the dispositive motion to dismiss. The recent United States Supreme Court decision of District of Columbia v. Heller, 128 S. Ct. 2783 (2008), held that a ban on handgun possession in the home violates the Second Amendment. The instant case involves possession of a concealed firearm at a place of business. Article I, section 8(a) of the Florida Constitution, consistent with the Second Amendment to the United States Constitution, provides that the right of the people to keep and bear arms in defense of themselves and of the lawful authority of the State shall not be infringed, except that the manner of bearing arms may be regulated by law. Weapons and firearms are regulated by Chapter 790, Florida Statutes (2006). Section 790.01(2), Florida Statutes, provides that "A person who carries a concealed firearm on or about his or her person commits a felony of the third degree . . . ." Section 790.25, Florida Statutes, entitled "Lawful ownership, possession, and use of firearms and other weapons" enunciates at subsection (1) the following Declaration of Policy: The Legislature finds as a matter of public policy and fact that it is necessary to promote firearms safety and to curb and prevent the use of firearms and other weapons in crime and by incompetent persons without prohibiting the lawful use in defense of life, home, and property, and the use by United States or state military organizations, and as otherwise now authorized by law, including the right to use and own firearms for target practice and marksmanship on target practice ranges or other lawful places, and lawful hunting and other lawful purposes.

3

Subsection (2)(a) then provides "Uses not authorized:" This section does not authorize carrying a concealed weapon without a permit, as prohibited by

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