FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-739
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ANTHONY BERNARD WIGGINS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Duval County.
Steven B. Whittington, Judge.
August 16, 2018
B.L. THOMAS, C.J.
Appellant challenges his conviction for possession of a
concealed weapon by a convicted felon. Appellant raises seven
arguments on appeal, only three of which merit discussion: That
a firearm is not a “weapon” as defined by Florida Statutes and
therefore cannot be a “concealed weapon”; that “possession of a
concealed weapon by a convicted felon” is not an offense in the
Florida Statutes; and that his conviction for a nonexistent crime
was fundamental error. We reject the first argument but reverse
and remand on the final argument.
I. Whether a firearm constitutes a “concealed weapon”
as defined by section 790.001(3)(a), Florida Statutes.
Questions of statutory interpretation are reviewed de novo.
State v. Burris, 875 So. 2d 408, 409 (Fla. 2004). “[A] ‘statute
should be interpreted to give effect to every clause in it, and to
accord meaning and harmony to all of its parts.’” Acosta v.
Richter, 671 So. 2d 149, 153-54 (Fla. 1996) (quoting State ex rel.
City of Casselberry v. Mager, 356 So. 2d 267, 269 n.5 (Fla. 1979)).
“‘[S]tatutory phrases are not to be read in isolation, but rather
within the context of the entire section.’” Id. (quoting Jackson v.
State, 634 So. 2d 1103, 1105 (Fla. 4th DCA 1994)).
Section 790.001, Florida Statutes, provides the following
definitions:
(2) “Concealed firearm” means any firearm, as defined
in subsection (6), which is carried on or about a person
in such a manner as to conceal the firearm from the
ordinary sight of another person.
(3)(a) “Concealed weapon” means any dirk, metallic
knuckles, billie, tear gas gun, chemical weapon or
device, or other deadly weapon carried on or about a
person in such a manner as to conceal the weapon from
the ordinary sight of another person.
....
(6) “Firearm” means any weapon (including a starter
gun) which will, is designed to, or may readily be
converted to expel a projectile by the action of an
explosive; the frame or receiver of any such weapon; . . . .
....
(13) “Weapon” means any dirk, knife, metallic knuckles,
slingshot, billie, tear gas gun, chemical weapon or
device, or other deadly weapon except a firearm or a
common pocketknife, plastic knife, or blunt-bladed table
knife.
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(Emphasis added.)
“Where possible, courts must give effect to all statutory
provisions and construe related statutory provisions in harmony
with one another.” Young v. Progressive Se. Ins. Co., 753 So. 2d
80, 84 (Fla. 2000) (quoting Forsythe v. Longboat Key Beach
Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992)) (emphasis
in original). “The general rule is that, if it is possible to do so,
inconsistent provisions within a statute should be construed in a
manner that reconciles the inconsistencies.” Jordan v. Food
Lion, Inc., 670 So. 2d 138, 140 (Fla. 1st DCA 1996). “If that is not
possible, the inconsistencies should be resolved in a manner that
will give effect to the last expression of the legislative will.” Id.
When first enacted in 1969, sections 790.001(3)(a), 790.001(6),
and 790.001(13), Florida Statutes, all read in relevant part as
they do today. Ch. 69-306, Laws of Fla.
Appellant argues that this court should follow the Second
District’s holding in Baldwin v. State that, because a firearm is
not a “weapon” as defined by section 790.001(13), it cannot be a
“concealed weapon” as defined by section 790.001(3)(a). 857
So. 2d 249, 252 (Fla. 2d DCA 2003). However, the Second
District did not address the fact that section 790.001(6), Florida
Statutes, defines “firearm” as a “weapon . . . designed to . . . expel
a projectile.” Id. at 251-52. Appellant’s argument is incorrect to
the extent that it is based on Baldwin’s holding that a “gun is not
a ‘weapon,’” 857 So. 2d at 251, because a gun is a weapon under
section 790.001(6), a fact which the Baldwin court did not
consider in reaching its conclusion.
A “basic rule of statutory construction requires a court to
avoid a literal interpretation that would result in an absurd or
ridiculous conclusion.” M.D. v. State, 993 So. 3d 1061, 1063 (Fla.
1st DCA 2008). Appellant’s desired construction would establish
that “firearms” are not “deadly weapons,” a definition that is not
only absurd but contrary to case law. See Parrish v. State, 66 So.
3d 1030, 1033 (Fla. 1st DCA 2011) (holding, for purposes of
Chapter 790, that “[a] deadly weapon is one likely to cause death
or great bodily injury”). See also State v. Williams, 10 So. 3d
1172, 1174 (Fla. 3d DCA 2009) (“A firearm is, by definition, a
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deadly weapon because it is designed to expel a projectile by the
action of an explosive which is likely to cause death or great
bodily injury.”); Miller v. State, 613 So. 2d 530, 531 (Fla. 3d DCA
1993) (“A firearm is, by definition, a deadly weapon which fires
projectiles likely to cause death or great bodily harm; . . . .”);
Riggins v. State, 557 So. 2d 185, 185 (Fla. 3d DCA 1990) (“it is
well settled that a firearm, as here, is a ‘deadly weapon’ within
the meaning of” section 784.045, the aggravated battery statute). *
See also Baldwin, 857 So. 2d at 254 (Silberman, J., concurring
specially) (noting that, regarding section 790.001(13), “[t]he
definition of ‘weapon’ contemplates that a firearm and common
pocketknife would normally be included in the category of ‘deadly
weapon’ or there would have been no reason for the legislature to
use the language ‘except a firearm or a common pocketknife’”).
Thus, we reject Appellant’s argument that a firearm is not a
deadly weapon.
II. Whether the trial court fundamentally erred by
instructing the jury on the non-existent crime of
“possession of a concealed weapon by a convicted felon”
instead of “carrying a concealed weapon by a convicted felon.”
Section 790.23(1), Florida Statutes, makes it unlawful for a
convicted felon “to have in his or her care, custody, possession, or
control any firearm . . . or to carry a concealed weapon[.]”
Appellant was charged by information with “possession of a
concealed weapon by a convicted felon . . . contrary to the
provisions of Section 790.23(1)(a), Florida Statutes.” However,
“possession of a concealed weapon” is not an offense named in
section 790.023(1), Florida Statutes. The jury instructions
* The rule of lenity, codified in section 775.021, Florida
Statutes, requires that penal statutes be strictly construed, with
ambiguity resolved in the manner most favorable to the accused.
However, “[t]his rule of lenity is a canon of last resort and only
applies if the statute remains ambiguous after consulting
traditional canons of statutory construction.” Paul v. State, 129
So. 3d 1058, 1064 (Fla. 2013). Because Appellant’s desired
construction would lead to an absurd result, the rule of lenity
does not apply.
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repeated the incorrect name of the offense; while the instructions
did track the correct elements for the actual offense of “carrying a
concealed weapon by a convicted felon,” the instructions also
contained the definitions of “possess” and “actual possession,”
which are not applicable to the “carrying” offense in regards to a
concealed weapon. Appellant was thus found guilty by a jury of
the nonexistent offense of “possession of a concealed weapon by a
convicted felon.”
We agree with the Fourth District’s holding in James v.
State, 16 So. 3d 322 (Fla. 4th DCA 2009) that, because the
definition of “carrying” is narrower than the definition of
“possession,” the repeated mislabeling of the offense as
“possession of a concealed weapon by a convicted felon” and the
inclusion in the jury instructions of the definitions of “possess”
and “actual possession” made it possible for the jury to convict
Appellant of the broader and nonexistent offense, thus making
the erroneous instructions fundamental error, as “no one may be
convicted of a nonexistent crime.” Achin v. State, 436 So. 2d 30,
31 (Fla. 1982).
Appellant’s conviction for “possession of a concealed weapon
by a convicted felon” is reversed and remanded for a new trial on
the crime of carrying a concealed weapon by a convicted felon.
See id. (holding retrial on remand of nonexistent crime does not
violate prohibition against double jeopardy where the nonexistent
offense includes all elements of correct offense).
We affirm all other issues raised by Appellant.
AFFIRMED in part, REVERSED in part, and REMANDED for new
trial.
BILBREY and JAY, JJ., concur.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, Victor D. Holder, Assistant
Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Samuel B. Steinberg,
Assistant Attorney General, Tallahassee, for Appellee.
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