Opinion
No. 94-455.
September 16, 1994.
Appeal from the Circuit Court, Volusia County, John W. Watson, III, J.
James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.
The issue posed by this appeal is whether the crime of carrying a concealed weapon is a necessarily lesser included offense of the crime of carrying a concealed firearm. The trial court refused to so instruct the jury and the appellant contends that this was error per se.
We agree with the trial judge based upon a Blockburger analysis of the two offenses. By statutory definition the term "weapon" as used in section 790.01(1), Florida Statutes, excludes a firearm; therefore, the elements of the lesser offense (carrying a concealed weapon) are not encompassed by proof of the greater offense (carrying a concealed firearm). Based on the statutory language, the two offenses are mutually exclusive. See State v. Wimberly, 498 So.2d 929 (Fla. 1986).
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
AFFIRMED.
W. SHARP and DIAMANTIS, JJ., concur.