Blurred lineS: new eleMent Or new defenSe?
Criminal law Section Co-Chairs: AmyCasanova-Ward – FloridaDept. ofFinancialServices & LilyM. McCarty – Hines & McCarty, PLLC
In State v. Herard, No. 6D2023- 3607, 2025 WL 2371629( Fla. 6th DCA Aug. 15, 2025), the State of Florida appealed the dismissal of charges for carrying a concealed firearm without a license. The case revolves around Nyya Jahnai Herard, who was charged under the 2022 statute. However, a 2023 amendment to section 790.01, Florida Statutes, redefined the crime, stating it’ s not illegal to carry a concealed firearm without a license if the person“ otherwise satisfies the criteria for receiving and maintaining such a license.”
The trial court retroactively applied this 2023 amendment, reducing the punishment from a third-degree felony to no punishment for those eligible for a license. The State argued this was an error, as the amendment changed the elements of the crime, not just the punishment, and therefore shouldn’ t be applied retroactively under section 775.022( 4).
Section 775.022( 5) provides that the statute“ may not be construed to limit the retroactive effect of any defense to a criminal statute or amended by the Legislature in a criminal case that has not yet resulted in the imposition of a judgment or sentence by the trial court.” Herein lies the conundrum: the prepositional phrase“ to a criminal statute” could theoretically modify“ defense”— i. e.,“ defense
to a criminal statute.” But the phrase“ enacted or amended by the Legislature” could modify either“ defense”— i. e.,“ any defense... enacted or amended by the Legislature,” or it could modify“ criminal statute”— i. e.,“ a criminal statute enacted or amended by the Legislature.”
The appellate court reversed the trial court’ s decision, concluding that the 2023 amendment redefined the crime’ s elements by adding a new requirement for the State to prove negative eligibility for a license. Therefore, neither subsection( 4)( reducing punishment) nor subsection( 5)( new defenses) of section 775.022 applied, and the amendment should not be applied retroactively.
The dissent disagreed with the majority’ s ultimate decision believing the 2023 amendment should apply retroactively, but under section 775.022( 5). It argued that the 2023 amendment introduced a new defense to the crime by changing its definition and adding an express authorization to carry a concealed firearm if certain criteria are met.
The dissent explained that the 2023 amendment to section 790.01 redefined the crime of carrying a concealed firearm. Before the amendment, the State only had
the State of florida appealed the dismissal of charges for carrying a concealed firearm without a license.
to prove that someone was carrying a concealed firearm without a license. But the 2023 amendment added a new element for the State to prove: that the person fails to meet the specified statutory criteria for receiving and maintaining a license.
Think of it this way:
• Old Law( 2022): Carrying without a license = crime.
• New Law( 2023): Carrying without a license AND being ineligible for one = crime. The dissent considered this
“ ineligibility” element as essentially creating a“ defense " for the accused if they can show they are eligible, even without a license.
So, for Herard, who claimed she did meet the criteria for a license, the new amendment provided a reason why the prosecutor might not have a valid case against her, even if she didn’ t have the physical license at the time of arrest. n
Author: Krystle C. Cacci – Criminal Appeals Division, Office of the Attorney General
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