Here’s a few basic principles of any criminal justice system. Juries are typically the fact finders. Judges are typically referees, calling balls and strikes throughout the process. But, what happens when the facts of a case are so weak that there is no need to have a jury trial? Well, we defense attorneys ask the judge to step into the fray, and make factual determination that will cause the case to be dismissed. Prosecutors don’t want judges dismissing weak cases, because they know that many defendants cannot afford the risk of going to trial, even on weak facts. Technically, when a criminal defense attorney poses this question to a judge, it is in the form of a Motion to Dismiss. This motion tells the court that the facts of the case do not constitute the crime charged, so why waste time tax payer money? We’re going to take a look one such waste of money, found in O.S. V. State, 120 So. 3d 130 (Fla. 3d DCA 2013).
O.S. was convicted of possession of a concealed weapon (brass knuckles) in his vehicle. Now, several issues may be examined in a concealed weapons case, issues regarding the stop of the vehicle, issues regarding constructive possession, or issues regarding the definition of a weapon. But the issue for today involves what constitutes “concealed”. And, who gets to make a determination as to what is concealed–the judge, or the jury?
When O.S. was pulled over for a bad tag light (yes, a classic bogus stop) the officer asked him to step out of the car. Once the door opened, the officer “could observe the brass knuckles sitting in the pocket by the driver’s door.” Id. An important question on any concealed weapons charge involves the degree to which the weapon was recognized by the officer. In this case, the defense attorney’s cross examination noted that the officer recognized the weapon “right away”. Id. O.S. also admitted to the officer that he had the brass knuckles in the car.