A Failure of Justice – State v.Herard, 50 Fla.L.Weekly D1822 (Fla. 6DCA 2025)
by Jon H. Gutmacher, Esq. [9/12/2025]
Following a traffic stop, Orlando Police Officers arrested Mr. Herard on March 8, 2023, for carrying a concealed firearm without a license. The State prosecuted the charge as a third degree felony under section 790.01 of the Florida Statutes, but in less than a month, on April 3, 2023, Governor DeSantis signed into law an amendment to the statute (passed by the Legislature at the end of March 2023), which would have legitimized the exact same conduct that Herard got arrested for – as no longer being unlawful. (HR 543 – 2023). At the time, Monique Worrell, was State Attorney for the 9th Judicial Circuit of Florida, which included the Orlando area. A motion to dismiss was filed in the Orlando trial court, and Circuit Court Judge Kevin B. Weiss dismissed the case on the basis of the new statute. Justice was served – but – for some reason an appeal of the dismissal was taken by the State, and handled by the Office of the Florida Attorney General. The case then landed in Florida’s Sixth District Court of Appeal, and in a lengthy opinion by Judge Roger Gannam, in which Judge Brian D. Lambert concurred, the case was reversed on two separate grounds of statutory interpretation – either of which if sustained, would have justified the earlier dismissal.
Judge Keith F. White dissented, and disagreed with the majority. He explained that the question before the court was whether the change in the statute which had previously forbidden concealed carry without a license, and now allowed concealed carry for any individual who could qualify for the Florida Concealed Weapons License was, as a practical matter, “any defense”. For while it is true that an arrest and prosecution after July 1, 2023 for carrying a concealed firearm would require the State to both charge and prove that a defendant couldn’t qualify for a Florida CWL – if somehow a flawed prosecution without these requirements were to take place – any defendant so arguing the point would be raising it as a “defense”. Not only that, but Judge White reminded us in his dissent that the Legislature, in Florida Statute 775.021, specifically requires that the language in all criminal statutes is always to be given a liberal construction in favor of the accused where two or more opposing interpretations are possible, and not unreasonable. In Florida, this is known as “the rule of lenity”. Therefore, saying a “defense” is not a “defense” because it is instead a “challenge to an interpretation” – is not only an affront to the rule of lenity, but also violates the separation of powers between the Legislature and Court system:
“775.021 Rules of construction.—
“(1) The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”
In essence, there was a failure of Justice in this case in so many ways. First, it probably should not have been prosecuted. A Nolle Prosequi by the State once the amended statute took effect in July – would have been the proper thing to do. Next, and in the same vein, once the defense filed a motion to dismiss based on the amended statute – the State should have agreed to the dismissal, not fought it, and most certainly – not appealed it. Next – somebody in the State Attorneys Office approved of the appeal. Under the circumstances of the amended statute – that was just wrong! To fight over words vs. Justice – makes no sense. It taxes resources, and most certainly negates what the Legislature tried to accomplish by amending the statute. Same goes for the Office of the Attorney General. They should have turned the appeal down. They had that option. And last – the fact that an appellate judge (Judge Gannam) decided to write a four page Opinion on an issue basically dead for all times because of the statutory amendment, and then ignore a basic statutory principle, the rule of lenity, besides the fact that the gist of the Opinion likely runs afoul of the Second Amendment – the failure of Justice is complete.
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