Florida District Courts of Appeal, 1994

Gonsoulin v. State

Florida District Courts of Appeal · Decided September 16, 1994 · Cobb, Diamantis, Sharp

642 So. 2d 146; 1994 Fla. App. LEXIS 8869; 1994 WL 501297 (Southern Reporter, Second Series)

Cases that cite this one

1 later published case cites this decision.

Fryer v. State (Fla. Dist. Ct. App. 1999)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

COBB, Judge.

The issue posed by this appeal is whether the crime of carrying a concealed weapon is a necessarily lesser included offense of the crime of carrying a concealed firearm. The trial court refused to so instruct the jury and the appellant contends that this was error per se.

We agree with the trial judge based upon a Blockburger analysis1 of the two offenses. By statutory definition the term “weapon” as used in section 790.01(1), Florida Statutes, excludes a firearm; therefore, the elements of the lesser offense (carrying a concealed weapon) are not encompassed by proof of the greater offense (carrying a concealed firearm). Based on the statutory language, the two offenses are mutually exclusive. See State v. Wimberly, 498 So.2d 929 (Fla. 1986).

AFFIRMED.

W. SHARP and DIAMANTIS, JJ., concur.

. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

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