THE STATE OF FLORIDA v. DEMETREIUS MAYES

Third District Court of Appeal
State of Florida
Opinion filed July 20, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-0720
Lower Tribunal No. F20-8149
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The State of Florida,
Appellant,
vs.
Demetreius Mayes,
Appellee.
An appeal from the Circuit Court for Miami-Dade County, Richard
Hersch, Judge.
Ashley Moody, Attorney General, and Sonia Perez, Assistant Attorney
General, for appellant.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger,
Assistant Public Defender, for appellee.
Before LOGUE, HENDON, and MILLER, JJ.
MILLER, J.
Appellant, the State of Florida, challenges an order granting a motion
to dismiss an information charging appellee, Demetreius Mayes, with
carrying a concealed firearm. Concluding the State’s traverse and demurrer
did not contravene the material facts alleged in the motion to dismiss, namely
that the firearm was within plain view and thus was not “concealed” within
the meaning of section 790.001(2), Florida Statutes (2020), we affirm. See
§ 790.001(2), Fla. Stat. (“‘Concealed firearm’ means any firearm . . . which
is carried on or about a person in such a manner as to conceal the firearm
from the ordinary sight of another person.”); see also Ensor v. State, 403 So.
2d 349, 354 (Fla. 1981) (“The term ‘ordinary sight of another person’ means
the casual and ordinary observation of another in the normal associations of
life.”); Cope v. State, 523 So. 2d 1270, 1271–72 (Fla. 5th DCA 1988) (“We
hold that a pistol with the butt and part of the frame exposed on the front seat
of a truck, instantly recognizable upon casual observation as a blue steel
pistol with wood-grain handle grips, cannot be termed ‘concealed,’ given the
ordinary meaning of that word.”); Dorelus v. State, 747 So. 2d 368, 372 (Fla.
1999) (“[A]lthough the observations of the police officer will not necessarily
be dispositive, a statement by the observing officer that he or she was able
to ‘immediately recognize’ the questioned object as a weapon may
conclusively demonstrate that the weapon was not concealed as a matter of
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law because it was not hidden from ordinary observation.”); O.S. v. State,
120 So. 3d 130, 132 (Fla. 3d DCA 2013) (“More importantly, the officer
testified that he identified the weapon ‘right away.’ As noted in Dorelus, this
alone may demonstrate as a matter of law that the weapon was not
concealed. . . . [H]ere, where the officer’s observation is coupled with the
facts discussed above, we have no difficulty in holding that the weapon was
not concealed as a matter of law.”).
Affirmed.
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