From Casetext: Smarter Legal Research

Holmes v. State

District Court of Appeal of Florida, Fifth District
Oct 8, 1980
389 So. 2d 214 (Fla. Dist. Ct. App. 1980)

Opinion

No. 79-964/T4-529.

July 23, 1980. On Rehearing October 8, 1980.

Appeal from the Circuit Court, Brevard County, Tom E. Waddell, Jr., J.

Richard L. Jorandby, Public Defender, and Jorge Labarga, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.


AFFIRMED.

DAUKSCH, C.J., and ORFINGER and SHARP, JJ., concur.


ON MOTION FOR REHEARING AND SUGGESTION FOR CERTIFICATION OF QUESTION


The motion for rehearing is granted and the suggestion that the principal question involved in the appeal be certified as one of great public importance is denied. The rehearing is granted so that this court can express its opinion that it is unnecessary for the state to prove that a short-barreled shotgun found in the possession of a defendant on trial for violation of section 790.221(1), Florida Statutes, was not an antique firearm. It is the holding of this court that the exception in that statute is a matter of defense rather than an essential element of proof. The defendant is obligated to show he falls within the exception allowing possession of an antique short-barreled shotgun rather than for the state to prove it was not an antique. State v. Kahler, 232 So.2d 166, 168 (Fla. 1970); Hernandez v. State, 289 So.2d 16 (Fla. 3d DCA 1974); Benitez v. State, 172 So.2d 520 (Fla. 2d DCA 1965).

With this clarification we certify this case to be in conflict with Thompson v. State, 378 So.2d 859 (Fla. 1st DCA 1979).

MOTION FOR REHEARING GRANTED.

SUGGESTION FOR CERTIFICATION OF QUESTION DENIED.

ORFINGER and SHARP, JJ., concur.


Summaries of

Holmes v. State

District Court of Appeal of Florida, Fifth District
Oct 8, 1980
389 So. 2d 214 (Fla. Dist. Ct. App. 1980)
Case details for

Holmes v. State

Case Details

Full title:ROBERT RAY HOLMES, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fifth District

Date published: Oct 8, 1980

Citations

389 So. 2d 214 (Fla. Dist. Ct. App. 1980)

Citing Cases

Wright v. State

Generally, courts have held that “whether a proscribed weapon is an antique is a matter of defense; the state…

State v. Snell

The state argued that under the rule set forth in the cases of State v. Sobel, 363 So.2d 324 (Fla. 1978);…