The State of Florida v. Andre Adams

Third District Court of Appeal

State of Florida

Opinion filed June 25, 2025.

Not final until disposition of timely filed motion for rehearing.

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No. 3D23-2305

Lower Tribunal No. B23-10074

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The State of Florida,

Appellant,

vs.

Andre Adams,

Appellee.

An Appeal from the County Court for Miami-Dade County, Marcus

Bach Armas, Judge.

James Uthmeier, Attorney General and Sandra Lipman, Senior

Assistant Attorney General, for appellant.

Carlos J. Martinez, Public Defender and John Eddy Morrison, Assistant

Public Defender, for appellee.

Before LOGUE, C.J., and GORDO and BOKOR, JJ.

GORDO, J.

The State of Florida (“State”) appeals from an order dismissing an

open carry charge against Andre Adams (“Adams”). We have jurisdiction.

Fla. R. App. P. 9.140(c)(1)(A). For the reasons that follow, we reverse.

I.

On May 23, 2023, a Miami-Dade police officer conducted a traffic stop

of a vehicle driven by Adams. During the stop, the officer observed a loaded

handgun on top of the passenger seat. Adams was subsequently arrested

and charged with one count of open carrying of a weapon in violation of

section 790.053, Florida Statutes (2022),1 and one count of resisting an

officer without violence in violation of section 843.02, Florida Statutes.

1

Section 790.053(1), Florida Statutes (2022) provides:

Except as otherwise provided by law and in

subsection (2), it is unlawful for any person to

openly carry on or about his or her person any

firearm or electric weapon or device. It is not a

violation of this section for a person licensed to carry

a concealed firearm as provided in s. 790.06(1), and

who is lawfully carrying a firearm in a concealed

manner, to briefly and openly display the firearm to

the ordinary sight of another person, unless the

firearm is intentionally displayed in an angry or

threatening manner, not in necessary self-defense.

§ 790.053(1), Fla. Stat. (2022) (emphasis added).

2

The trial court held a pretrial hearing. After briefly hearing the factual

basis for the open carry charge, the trial court asked Adams, who had not

previously moved to dismiss, if he wanted to move to dismiss the charge:

[THE COURT]: It seems to me that the facts are

undisputed in this case as to the open carry charge,

okay? And it appears to me that there’s no allegation

by the State that the weapon was carried on or about

his person. And, so, I’m going to ask for a stipulation

as to that fact. If – If that is, in fact, the case, then –

And we need to get that confirmed but I understand

that to be the case. And I will entertain a late

motion to dismiss if the Defense wishes to do so

because the fact is, it doesn’t support – the

stipulation does not support a charge of open carry.

It has to be on or about the person. This is not a case

of possession where constructive possession

counts. The statute specifically says that the weapon

must be carried on or about their person. Having a

weapon in your vehicle does not qualify as having it

on or about their person.

...

[THE COURT]: Okay. So, Mr. Perez, I think that now

that we are in a trial posture, everybody’s got a pretty

good grasp of the facts and it sounds like everybody

is in agreement that at this point the facts are clear

that the defendant was pulled over and a weapon

was discovered in his car. There is not going to be

any evidence presented and there has been no

evidence uncovered during discovery that reveals

that the defendant had on or about his person a

weapon. We can talk about the legal argument as to

constructive possession and those issues but I want

to get the facts out of the way first. Do you have any

disagreement or do you object to any such stipulation

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that he was pulled over and that’s how the weapon

was discovered?

(Emphasis added).

The State supplemented the subject firearm “was unsecured meaning

it was not in a holster or any sort of other compartment that would otherwise

make it secure or encased. And it was found in plain view on top of the

passenger seat directly next to the defendant who was driving, and it was

within a close proximity in such a manner that it could have been retrieved

immediately.” In turn, Adams supplemented there was a “partial obstruction

of the firearm . . . it was plastic cup lids.” The following exchange then took

place:

[THE COURT]: Okay. The – I think the key being

everybody stipulates the defendant was pulled over.

He was not seen by an officer carrying a weapon.

The weapon was discovered on a seat or in the

vehicle, not on his person –

[DEFENSE COUNSEL]: Correct.

[THE COURT]: – okay?

[PROSECUTOR]: I just – I do disagree with that

characterization that he was not seen carrying the

firearm because it was right next to him. But I know

Your Honor’s about to go into that.

[THE COURT]: Fair enough. So, we can agree to the

facts that we’ve – that we’ve just discussed; is that

correct? We don’t need to take testimony or have an

evidentiary hearing? Defense, you stipulate –

4

[DEFENSE COUNSEL]: That – That is correct, Your

Honor.

[THE COURT]: – with your supplementation? And,

State, you stipulate?

[PROSECUTOR]: (No verbal response.)

[THE COURT]: Okay. So, if – if Defense would like

to argue a motion, I’ll entertain it at this time. You

know, 3.190 states as follows – Well, it states that a

motion to dismiss where there are no material

disputed facts and the undisputed facts do not

establish a prima facie case of guilt against the

defendant is one of the key – the key parts of this.

[PROSECUTOR]: So, Your Honor –

[THE COURT]: It must be in writing unless the Court

waives the requirement to be writing for good cause

shown and the State could file a traverse but, like I

said, I think we have the stipulation of facts.

(Emphasis added).

The State strongly objected to an ore tenus motion to dismiss, arguing

the motion should be in writing so the State would have an opportunity to

prepare its version of the facts for consideration by the trial court. The trial

court responded:

[THE COURT]: Well, I mean, in terms of preparation

for the argument, State, it’s no different than dealing

with this at a directed verdict or a judgment of

acquittal phase, right? We’re just sparing the

unnecessary expense and wasting of time on trying

a charge that – for which the facts are undisputed

5

and do not support a prima facie case of guilt if that,

in fact, is what I decide. [It] sounds like there’s not a

factual dispute here, so a traverse would be in

essence a waste of time. Defense, why did you not

file this motion earlier?

[DEFENSE COUNSEL]: Your Honor, there – there –

It seems there wasn’t exactly a factual dispute but it

– I believe that there was a – maybe a difference in

interpretation that has come to light now that we are

now clear on. And that is why we are now making

this ore tenus motion to dismiss.

Adams accepted the trial court’s offer and orally moved to dismiss,

arguing the subject firearm was never “carried” because it was not on his

person. The State responded the firearm was “about” Adams’ person

because it was “in the passenger seat right next to him” and that is sufficient

to support an open carry charge.

The trial court addressed the open carry statute:

[THE COURT]: Quite simply, a defendant driver

traveling in a private vehicle with a gun on the

passenger seat may be violating other laws but

certainly is not openly carrying a weapon [on] or

about his person. The concept of constructive

possession and openly carrying something on or

about your person are distinct concepts under the

law. And these concepts are available to the

legislature because constructive possession is an

established doctrine that exists. And they could have

easily put into the text of the statute that – in fact, they

have in felon and possession cases, right? They

speak to possession. This statute does not speak to

possession. I decline to write words into the statute

that do not exist. And therefore I hold that a

6

defendant driver traveling in a private vehicle with a

licensed gun on the passenger seat, a lawfully owned

gun with a permit, is not openly carrying a weapon on

or about his person to support a charge under

790.053. Therefore, I will dismiss that charge.

...

[PROSECUTOR]: Your Honor, it’s the State’s

position that this a highly factual determination.

Florida courts have already stated that the mere fact

that tinted windows – the mere fact that a firearm is

found within a vehicle that has tinted windows does

not automatically make it concealed. As it pertains

to the Court’s reasoning when it comes to what it

means to have a firearm on or about someone’s

person, it is the State’s position that it would – the

Court’s ruling would effectively make redundant the

words ‘about.’ If – If on or about were to only mean

that it had to be in the person’s manual possession

or on the person’s actual body, then there leaves

very little to actually no application for the word

‘about.’

[THE COURT]: Well, it does say they must be openly

carrying it on or about his person. So, the Court’s

position is that you’re not carrying it if it’s on the

passenger seat and you are the driver. That’s not

carrying it. Whether it’s on or about his person

doesn’t render the words moot. Are they carrying it

or not? This Court holds that it’s on the passenger

seat. You’re not openly carrying it, period. We know

what carrying means. We all speak English. I give

that word the – it’s common definition and I don’t – I

understand the State’s position and it’s noted for the

record but the – the material facts here that are

relevant to the Court’s ruling are not disputed. And

the Court holds that that weapon being on the

passenger seat in a private conveyance traveling on

the highway is not being openly carried by the

7

defendant and therefore is insufficient to support the

charge. That count is dismissed.

Over the State’s objection, the trial court dismissed the open carry

charge. In dismissing the charge, the trial court relied on the decision in

State v. Burris, 875 So. 2d 408, 412 (Fla. 2004), wherein the Florida

Supreme Court defined the term “carry” as “holding, supporting, or bearing.”

The trial court ruled:

[T]he Court adopts the Florida Supreme Court’s

interpretation of the word ‘carry’ in the context of Fla.

Stat. § 790.053 and holds that a defendant driving a

private vehicle with a firearm on the passenger seat,

which defendant was not alleged to have held,

supported, or borne said firearm, does not ‘openly

carry such firearm on or about his or her person’ for

purposes of sustaining a charge of open carry under

Fla. Stat. § 790.053.

This appeal followed.

II.

“Whether the trial court properly granted a motion to dismiss pursuant

to Rule 3.190(c)(4) is reviewed de novo.” State v. Sholl, 18 So. 3d 1158,

1160 (Fla. 1st DCA 2009). “[O]n a motion made pursuant to Rule

3.190(c)(4), the state is entitled to the most favorable construction of the

evidence with all inferences being resolved against the defendant.” State v.

Ortiz, 766 So. 2d 1137, 1142 (Fla. 3d DCA 2000).

8

III.

On appeal, the State argues the trial court erred in granting Adams’ ore

tenus motion to dismiss the open carry charge.

Florida Rule of Criminal Procedure 3.190(c)(4) enumerates the

grounds upon which the court may entertain a motion to dismiss. The rule

permits a defendant to move to dismiss a charge when “[t]here are no

material disputed facts and the undisputed facts do not establish a prima

facie case of guilt against the defendant.” Fla. R. Crim. P. 3.190(c)(4). Rule

3.190(a) requires that a motion to dismiss be in writing. See Fla. R. Crim. P.

3.190(a) (“Every pretrial motion and pleading in response to a motion shall

be in writing and signed by the party making the motion or the attorney for

the party.”) (emphasis added). “This requirement may be waived” only upon

a showing of good cause. Id.

We find it was error for the trial court to grant the ore tenus motion to

dismiss. Adams did not file a written motion at any time prior to the dismissal

of the charge and no “good cause” was shown by Adams so as to permit the

trial court to waive the requirement that the motion be in writing. The oral

motion, which was generated directly by the trial court’s inquiry, precluded

the State from placing its position or sworn version of the facts before the

9

court as contemplated by Florida Rule of Criminal Procedure 3.190(d). 2 This

was reversible error. See State v. Suazo, 973 So. 2d 1273, 1274 (Fla. 2d

DCA 2008) (“This court has repeatedly held that it is improper for a trial court

to dismiss charges when the defendant has not filed a written motion to

dismiss . . . [T]he remedy for the improper dismissal is reversal and remand

for further proceedings. In this case, Suazo did not file a written motion at

any time prior to the dismissal of the charge against her. As Suazo properly

concedes in this appeal, it was error for the trial court to grant her oral motion

to dismiss.”); State v. Reedy, 862 So. 2d 941, 942 (Fla. 2d DCA 2004)

(holding that the trial court erred in dismissing charges where motion to

dismiss was not in writing and the State did not have time to prepare its

response); State v. Alexander, 831 So. 2d 1252, 1253 (Fla. 2d DCA 2002)

(“Rule 3.190 requires that a motion to dismiss be in writing. Accordingly, it

was improper for the trial court to dismiss the charges against Alexander.”).

We note that “[t]he requirement of judicial impartiality is at the core of

our system of criminal justice.” McFadden v. State, 732 So. 2d 1180, 1184

(Fla. 4th DCA 1999). “The law in Florida is clear—a judge may not enter into

the fray by giving ‘tips’ or legal advice to either side.” State v. Dixon, 217 So.

2

Rule 3.190(d) provides that “[t]he state may traverse or demur to a motion

to dismiss that alleges factual matters.” Fla. R. Crim. P. 3.190(d).

10

3d 1115, 1126 (Fla. 3d DCA 2017) (quoting Chastine v. Broome, 629 So. 2d

293, 295 (Fla. 4th DCA 1993)). “When a judge enters into the proceedings

and becomes a participant or an advocate, a shadow is cast upon judicial

neutrality.” Id. (quoting R.O. v. State, 46 So.3d 124, 126 (Fla. 3d DCA

2010)); see also Marquardt v. State, 156 So. 3d 464, 482-83 (Fla. 2015) (“A

judge may not step away from the appearance of neutrality and advocate for

either party or interject himself or herself into the proceedings.”).

Here, it is clear Adams would not have moved to dismiss ore tenus

without prompting by the trial court over the State’s objection. The purpose

of allowing the State to file a traverse to a motion to dismiss is to allow an

opportunity for the development of facts prior to the dismissal of criminal

charges. In dismissing the open carry charge, the trial court solely

addressed the term “carry” without any consideration for the phrase “on or

about.” Given the extensive caselaw throughout our state defining “on or

about the person” to mean “physically on the person or readily accessible to

him,” Ensor v. State, 403 So. 2d 349, 354 (Fla. 1981), the dismissal of the

open carry charge against Adams may or may not have been error. We

cannot discern as much because the trial court did not allow for the proper

11

development of facts. Accordingly, we reverse and remand for further

proceedings. 3

Reversed and remanded for further proceedings.

3

We do not address whether the firearm on the passenger seat next to

Adams was “on or about” his person or “readily accessible” to him within the

meaning of the open carry statute. Generally, this is a question for the trier

of fact. See Ensor, 403 So. 2d at 354 (“The term ‘on or about the person’

means physically on the person or readily accessible to him. This generally

includes the interior of an automobile and the vehicle’s glove compartment,

whether or not locked.”); Arnesman v. State, 540 So. 2d 219, 220 (Fla. 2d

DCA 1989) (“Our supreme court in Ensor . . . has clearly stated that the

determination of whether a firearm is concealed, and the inextricably linked

question of whether a firearm, if concealed, is ‘on or about the person,’ is the

ultimate question in the prosecution of such a case and ‘must rest upon the

trier of fact under the circumstances of each case.’ As such, it is not

susceptible to a motion to dismiss.” (quoting Ensor, 403 So. 2d at 355));

State v. Smith, 67 So. 3d 409, 414 (Fla. 4th DCA 2011) (reversing dismissal

of carrying a concealed firearm charge: “Here, Smith concealed the firearm

underneath the passenger seat as the deputy approached the vehicle. We

cannot say as a matter of law that the firearm was not ‘on or about his person’

or not ‘readily accessible’ to him.”); State v. Prigge, 907 N.W.2d 635, 637-41

(Minn. 2018) (reviewing the issue of whether a person is “carrying a pistol on

or about the person’s clothes or person” when that person is driving a vehicle

with a handgun in the center console and holding: “To summarize, a pistol is

carried ‘on or about’ one’s person or clothing if there is either a physical

nexus between the person and the pistol or if the pistol is carried within arm’s

reach of the person . . . Whether a pistol is ‘about’ a person, that is, within

arm’s reach of the intoxicated person who is carrying it, is a question of fact.

In this case, the state alleged—and the parties agree—that a loaded

handgun was found in the center console of the vehicle. Based on that

factual allegation, the State’s sworn complaint was sufficient to survive

Prigge’s motion to dismiss.”) (footnote omitted).

12