Opinion
No. 91-773.
October 29, 1991.
Appeal from the Circuit Court, Dade County, Roberto Pineiro, J.
Robert A. Butterworth, Atty. Gen., and Katherine B. Johnson, Asst. Atty. Gen., for appellant.
Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellee.
Before FERGUSON, LEVY and GERSTEN, JJ.
Appellant, State of Florida, appeals the dismissal of an information charging appellee, David Harrell, with carrying a concealed firearm. We reverse.
In his deposition, the arresting officer stated that after he stopped appellee's car he shined his flashlight into the passenger area. He observed the butt of a firearm in an unzipped case located in the partially open glove compartment. The officer stated:
Well, say I'm driving, the glove compartment is right here, the butt was here and all [appellee] had to do was reach over and he would have had the gun out. He did not have to unzip any further nor did he have to open the glove compartment any further and it was readily accessible to him right there.
Based upon the arresting officer's deposition, appellee filed a 3.190(c)(4) Fla. R.Crim.P. motion to dismiss the information alleging that the facts did not establish that the gun was concealed. The State, citing Ensor v. State, 403 So.2d 349 (Fla. 1981), filed a traverse denying that the gun was "visible to the casual and ordinary observations of a person in the normal associations of life". The trial court, however, granted the motion and dismissed the information.
Appellant asserts that the trial court erred in granting the motion to dismiss because appellant filed a traverse denying the material facts alleged in the motion. Additionally, appellant argues that whether or not the firearm was concealed, for the purposes of Section 790.01(2), Florida Statutes, was a question of fact.
Appellee contends that the firearm was protruding so far out of the unzipped bag, that any individual standing beside the automobile, by ordinary observation, would know the object was a firearm. Thus, appellee argues, the firearm was not concealed.
In State v. Sawyer, 526 So.2d 191 (Fla. 3d DCA 1988) this court held:
Where a defendant's sworn motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) is met with a traverse by the State which specifically denies under oath the material facts alleged, the motion to dismiss must automatically be denied. [Citations omitted].See also Fla.R.Crim.P. 3.190(d). Here, the State's forthright traverse denied that the firearm was visible to the ordinary person. Furthermore, absolute invisibility is not a necessary element to finding that a defendant was carrying a concealed weapon. Ensor v. State, 403 So.2d at 349. We find that the officer's deposition, along with appellant's traverse, created an issue of fact.
Accordingly, we reverse and remand.
LEVY, J., concurs.
Officer Palumbo looked through the window of the defendant's automobile and observed what he immediately recognized to be a firearm protruding from a case inside the opened glove compartment. He further described the positioning of the revolver, as quoted in the majority opinion, and never intimated that the weapon was shielded from casual observance, or that it was not immediately recognizable as a firearm.
Ensor v. State, 403 So.2d 349 (Fla. 1981), is not controlling. In Ensor, the officer was not able to see the weapon without squatting and looking under a floor mat through the opened passenger door. It was held that the weapon was concealed because it was not within "the ordinary sight of another person," meaning that it was not subject to "a casual and ordinary observation of another in the normal associations of life." Id. at 354. Based on the officer's testimony in this case, the trial judge correctly concluded that Ensor was not applicable and that the undisputed facts did not establish a prima facie case.
The State's traverse to the sworn motion did not allege additional material facts. It simply alleged, in conclusive form, that on the facts presented the weapon was concealed. Compare State v. Gale, 575 So.2d 760 (Fla. 4th DCA 1991) (sworn motion to dismiss properly denied where motion did not allege any facts other than ultimate fact that the firearm was not concealed, and State's traverse denied that the firearm was not concealed and further alleged the fact that the gun was located on or near the floorboard of the car).
A sworn motion to dismiss, alleging facts in the record which justify a dismissal, is not defeated with the filing of a document styled a "traverse" which does not dispute the facts set forth in the motion or allege additional issue-creating facts. See Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA) (if State wishes to avoid effect of defendant's motion to dismiss on ground that undisputed material issues of fact fail to establish a prima facie case, its traverse must place a material issue of fact in dispute or establish that undisputed facts do establish a prima facie case), cert. denied, 352 So.2d 175 (Fla. 1977).
Under Florida law practically any person, except a convicted felon, is permitted to carry a firearm so long as the weapon is not concealed. As a reviewing court we should not be quick to register our distaste for the practice of carrying firearms by reversing decisions of trial courts which have determined, on undisputed facts, that a citizen is in substantial compliance with the law.
The trial court was eminently correct.