Third District Court of Appeal
State of Florida
Opinion filed November 10, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-0415
Lower Tribunal No. F19-17515
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Jonathan Montoya-Martinez,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Robert T.
Watson, Judge.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger,
Assistant Public Defender, for appellant.
Ashley Moody, Attorney General, and Sonia Perez, Assistant Attorney
General, for appellee.
Before LOGUE, LINDSEY, and LOBREE, JJ.
LINDSEY, J.
Appellant Jonathan Montoya-Martinez appeals a final judgment of
conviction and sentence for carrying a concealed weapon without a
permit. He entered a plea of guilty reserving the right to appeal the denial of
his dispositive motion to dismiss. Because we find no reversible error, we
affirm.
I. BACKGROUND
On October 10, 2019, two Miami Gardens Police Officers stopped a
car driven by Montoya for a traffic infraction (inoperative taillights). When
the officers approached the vehicle, they did not see a firearm. One of the
officers, Detective George Gil, asked Montoya for his license and
registration. Montoya responded that he had both items and also
volunteered that he had a firearm in the vehicle. Detective Gil then asked
Montoya to step out of the vehicle and he did so. According to Detective Gil,
when Montoya was asked where the firearm was: “[h]e said in between the
center console. The weapon was in-between the seats, wedged in the
console.”
Detective Gil then asked Montoya for permission to enter the vehicle
and make the firearm safe. Montoya consented. When Detective Gil went
into the vehicle to get the firearm, he immediately recognized the handle of
a black firearm wedged in between the seat. Before then, Detective Gil could
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not see the firearm “because [Montoya’s] right thigh was blocking it.” A
record’s check confirmed that Montoya did not have a Concealed Weapon
License.
The State filed an information charging Montoya with carrying a
concealed firearm without a license in violation of section 790.01(2), Florida
Statutes. In his motion to dismiss pursuant to Florida Rule of Criminal
Procedure 3.190(c)(4), Montoya argued the undisputed facts established
that the firearm was not “concealed” as a matter of law. The State filed a
traverse in opposition. After a hearing, the lower court denied the motion.
Montoya and the State stipulated that the motion to dismiss was
dispositive, and Montoya entered a guilty plea but reserved the right to
appeal the lower court’s ruling denying his motion to dismiss. The lower
court withheld adjudication and sentenced Montoya to one year of
nonreporting probation. Montoya timely appealed.
II. STANDARD OF REVIEW
We review de novo a denial of a Rule 3.190(c)(4) motion. Knipp v.
State,
67 So. 3d 376, 378 (Fla. 4th DCA 2011).
III. ANALYSIS
A trial court should grant a Rule 3.190(c)(4) motion where “[t]here are
no material disputed facts and the undisputed facts do not establish a prima
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facie case of guilt against the defendant.” Fla. R. Crim. P. 3.190(c)(4). A
(c)(4) motion “permit[s] a pretrial determination of the law of the case where
the facts are not in dispute . . . .” Styron v. State,
662 So. 2d 965, 966 (Fla.
1st DCA 1995) (quoting Ellis v. State,
346 So. 2d 1044, 1045 (Fla. 1st DCA
1977)).
Section 790.01(2), Florida Statutes (2021), provides that “a person
who is not licensed . . . and who carries a concealed firearm on or about his
or her person commits a felony of the third degree . . . . ”1 “Concealed
firearm” is defined as “any firearm . . . which is carried on or about a person
in such a manner as to conceal the weapon from the ordinary sight of another
person.” § 790.001(2), Fla. Stat. (2021). Our highest court has interpreted
the statutory phrase “ordinary sight of another person” to mean “the casual
and ordinary observation of another in the normal associations of life.” Ensor
v. State,
403 So. 2d 349, 354 (Fla. 1981). However, this definition was
not intended as [an] absolute standard[]. The[] purpose is to
make it clear that a weapon’s possible visibility from a point
outside the vehicle may not, as a matter of law, preclude the
weapon from being concealed under section 790.001. . . . In all
instances, common sense must prevail. The critical question
turns on whether an individual, standing near a person with a
firearm or beside a vehicle in which a person with a firearm is
1
While Montoya was not “carrying” the firearm under the plain and ordinary
meaning of the word, it is undisputed that the firearm was “about his person”
because it was next to his thigh while he was seated in his vehicle.
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seated, may by ordinary observation know the questioned object
to be a firearm.
Id. at 354-55.
While this is “ordinarily an issue for the trier of fact[,]” it can sometimes
be determined as a matter of law. Dorelus v. State,
747 So. 2d 368, 371
(Fla. 1999). In determining whether a weapon is concealed as a matter of
law, courts may consider: (1) “the location of the weapon within the vehicle[;]”
(2) “whether, and to what extent, the weapon was covered by another
object[;]” and (3) “testimony that the defendant utilized his body in such a
way as to conceal a weapon that would have otherwise been detectable by
ordinary observation.”
Id.
Here, the Dorelus factors support the trial court’s conclusion that
whether the firearm was concealed or not was a question for the trier of fact.
The firearm was wedged between the seat and the console and was
obscured from the officer’s view by Montoya’s right thigh. The officer was
only able to see the firearm after Montoya had exited the driver’s seat.
Montoya immediately told the officers that he had the firearm. Montoya
disputes that he was intentionally using his body to conceal the firearm.
This case is distinguishable from the three cases cited by Montoya:
Cope v. State,
523 So. 2d 1270 (Fla. 5th DCA 1988); Carpenter v. State,
593
So. 2d 606 (Fla. 5th DCA 1992); and O.S. v. State,
120 So. 3d 130 (Fla. 3d
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DCA 2013). In Cope, the firearm in question was in the front seat and was
visible once the officer “shined his light” into the car.
523 So. 2d at 1270.
Similarly, in Carpenter, the firearm was in the front seat beside the driver and
the officer saw the “grip and hammer were sticking up six inches above the
level of the seat” when he ultimately looked at the car’s interior.
593 So. 2d
at 607. Here, the detective looked in the car when he approached and saw
nothing. Lastly, this Court’s holding in O.S. is also distinguishable. In O.S.,
unlike here, the officer testified he immediately saw the brass knuckles in the
pocket of the driver’s door when it was opened.
120 So. 3d at 131.
Given the facts of this case, the language in sections 790.01(2) and
790.001(2), and the cases interpreting the same, the determination as to
whether Montoya’s firearm was concealed cannot be resolved as a matter
of law. Accordingly, we affirm.
Affirmed.
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