       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           JOEL RODRIGUEZ,
                              Appellant,

                                     v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D13-1515

                            [ August 12, 2015 ]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 562006CF003866A.

  Carey Haughwout, Public Defender, and Narine N. Austin, Assistant
Public Defender, West Palm Beach, for appellant.

   Joel Rodriguez, Milton, Pro Se.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers
and Monique Rolla, Assistant Attorneys General, West Palm Beach, for
appellee.

TAYLOR, J.

  Joel Rodriguez appeals his conviction and sentence for violating section
790.23(1), Florida Statutes (2006). This appeal was originally filed
pursuant to Anders v. California, 386 U.S. 738 (1967), but we ordered
supplemental briefing on a jury instruction issue.

   We now conclude, and the State concedes, that fundamental error
occurred in the jury instructions where the trial court instructed the jury
on the nonexistent crime of “possession of a weapon by a felon,” instead of
carrying a concealed weapon by a convicted felon. See James v. State, 16
So. 3d 322, 325-27 (Fla. 4th DCA 2009).

   Specifically, the jury instructions stated the following:
         To prove the crime of Possession of a Weapon by a Felon,
      the State must prove the following two elements beyond a
      reasonable doubt:

         1. Joel Rodriguez had been convicted of a felony.

         2. After the conviction, Joel Rodriguez knowingly had
            in his care, custody, possession, or control a
            weapon.

The instructions then went on to define various terms, including
“possession,” “actual possession,” and “constructive possession.” The jury
was instructed on the definition of the term “weapon,” but not the term
“concealed weapon.”

    Section 790.23(1) encompasses two separate crimes. James, 16 So. 3d
at 326. “The first is possession of a firearm, ammunition, or electric
weapon or device by a convicted felon. The second is carrying a concealed
weapon, including a tear gas gun or chemical weapon, by a convicted
felon.” Id. (citations omitted).

    In James, we held that the trial court committed fundamental error by
instructing the jury on the nonexistent crime of “possession of a concealed
weapon by a convicted felon” instead of “carrying a concealed weapon by
a convicted felon,” and by defining “possession,” “actual possession” and
“constructive possession” for the jury. Id. at 325-27. Even though the
trial court properly instructed the jury on the elements of the charged
offense of carrying a concealed weapon by a convicted felon, the trial court
instructed the jury that the defendant was charged with possession of a
concealed weapon by a convicted felon and then consistently labeled the
crime that way throughout the instructions and on the verdict form,
making it entirely possible that the jury believed the definitions for
“carrying” and for “possession” were one and the same. Id. Moreover, the
definitions of actual and constructive possession “are not supposed to be
given if the defendant is charged with carrying a concealed weapon
because the definition of ‘possession’ is different from and broader than
the definition of ‘carrying.’” Id. at 326.

    Here, as the Second District remarked in a similar case, the jury
instructions “described the wrong elements” for the offense and “effectively
allowed a conviction for a nonexistent crime.” Williams v. State, 48 So. 3d
192, 193-94 (Fla. 2d DCA 2010) (reversing judgment for “possession” of a
concealed weapon because the relevant statute makes it unlawful to
“carry,” not possess, a concealed weapon as a felon, and the jury was

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improperly instructed that it could convict if the defendant was a convicted
felon who “knowingly had in his care, custody, possession, or control a
concealed weapon”).

    In this case, the jury instructions were more harmful than those found
to be fundamental error in James. The instructions incorrectly defined a
disputed element of the crime in such a way as to reduce the State’s
burden of proof. The jury instructions here allowed for a conviction based
on mere possession of a weapon by a felon, but the relevant statute makes
it unlawful for a felon to carry a concealed weapon. Likewise, the verdict
form erroneously referred to the crime as “possession of a weapon by a
convicted felon.”

   The issue of whether appellant was carrying a weapon on his person
was disputed at trial. The officers testified that brass knuckles were found
in appellant’s pocket. But appellant testified that the brass knuckles were
part of a belt buckle that an officer found in appellant’s truck.

   The term “carrying” is narrower than the term “possessing.” James, 16
So. 3d at 326 & n.2. Possession may include actual or constructive
possession. Thus, a defendant’s possession of a weapon does not
necessarily mean that the defendant was carrying a concealed weapon.
Here, based on the incorrect instruction that possession of a weapon was
enough to convict, the jury might have convicted appellant even if the jury
believed his testimony that the brass knuckles were in his truck.
Moreover, the definitions of actual and constructive possession should not
have been given to the jury, as “those definitions were irrelevant to the
charged crime and were likely confusing and misleading to the jury.” Id.
at 326.

    In short, the erroneous jury instruction constituted fundamental error,
and appellant’s conviction for the nonexistent crime of “possession of a
weapon by a convicted felon” must be reversed and remanded for a new
trial on the charged crime1 of carrying a concealed weapon by a convicted
felon.

    Reversed and Remanded.

MAY and KLINGENSMITH, JJ., concur.


1 The amended information improperly labeled the crime as “possession of a
weapon by a convicted felon,” but the allegations of the information properly
tracked the language of section 790.23(1).

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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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