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Florida Court Rules a Person May Have Gun Wedged Between Two Front Seats of Car When Ammunition is in Closed Center Console
Posted by: Mark Horwitz
October 30, 2008

In the case of State v. Weyant, 990 So. 2d 675 (Fla. 2d DCA 2008), the state appealed the trial court's order granting a motion to dismiss. The defendant had been arrested for carrying a concealed weapon. The defendant's firearm was wedged between the two front seats. A magazine for the firearm, containing six rounds, was in the closed center console.

The case interpreted section 790.01(2), Florida Statutes (2006), which makes it is a felony to carry a concealed firearm on or about one's person. Section 790.001 (2) defines "concealed firearm" as a firearm "which is carried on or about the person in such a manner as to conceal the firearm from the ordinary sight of another person." The court considered § 790.25(5) which addresses the possession of a concealed firearm in a private conveyance. It notes that the statute makes it legal to possess a concealed firearm 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.

The term "securely encased" is defined in § 790.001(17): "means in a glove compartment, whether or not locked; snapped in a holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access." 990 So. 2d at 677.

The court discussed cases including Bell v. State, 636 So. 2d 80, 81 (Fla. 2d DCA 1994); City of Miami v. Swift, 481 So. 2d 26, 27 (Fla. 3d DCA 1985); and Gemmill v. State, 657 So. 2d 900, 901-02 (Fla. 4^th DCA 1995). The court stated, "[U]nder these authorities, if Weyant's firearm had been loaded and kept in the closed console, or if it was unloaded but kept together with the ammunition in the closed console, he would not have been in violation of section 790.01(2)." 990 So. 2d at 677.

The court then notes that when a firearm is located inside a vehicle and is not loaded, the court must consider the location and the accessibility of both the firearm and the ammunition when determining whether the firearm was readily accessible. See Ridley v. State, 621 So. 2d 409 (Fla. 1993) (holding that an unloaded firearm located under the driver's seat was readily accessible for immediate use because a fully loaded magazine was located under the passenger's seat); Ashley v. State, 619 So. 2d 294, 296 (Fla. 1993) (holding that a firearm located in the front passenger floorboard area was not readily accessible for immediate use when no ammunition was found in the vehicle...) In Ashley, the supreme court disapproved the decision of Amaya v. State, 580 So. 2d 885 (Fla. 2d DCA 1991), concluding "that an unloaded firearm located under the passenger's seat of a vehicle is readily accessible for immediate use when ammunition for that firearm is lying in open view on the passenger's seat." 619 So.2d at 295.

In this case, the ammunition was not in open view on the passenger seat, but rather was inside the closed center console of the vehicle and the firearm was wedged between the front seats. The court found that under these circumstances, Weyant would not have been able to retrieve and use the firearm as easily and quickly as if he carried it on his person. The court of appeals affirmed the dismissal.

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