
    Robert Ray HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 79-964/T4-529.
    District Court of Appeal of Florida, Fifth District.
    July 23, 1980.
    On Rehearing Oct. 8, 1980.
    Richard L. Jorandby, Public Defender, and Jorge Labarga, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DAUKSCH, C. J., and ORFINGER and SHARP, JJ., concur.

ON MOTION FOR REHEARING AND SUGGESTION FOR CERTIFICATION OF QUESTION

DAUKSCH, Chief Judge.

The motion for rehearing is granted and the suggestion that the principal question involved in the appeal be certified as one of great public importance is denied. The rehearing is granted so that this court can express its opinion that it is unnecessary for the state to prove that a short-barreled shotgun found in the possession of a defendant on trial for violation of section 790.221(1), Florida Statutes, was not an antique firearm. It is the holding of this court that the exception in that statute is a matter of defense rather than an essential element of proof. The defendant is obligated to show he falls within the exception allowing possession of an antique short-barreled shotgun rather than for the state to prove it was not an antique. State v. Kahler, 232 So.2d 166, 168 (Fla.1970); Hernandez v. State, 289 So.2d 16 (Fla. 3d DCA 1974); Benitez v. State, 172 So.2d 520 (Fla. 2d DCA 1965).

With this clarification we certify this case to be in conflict with Thompson v. State, 378 So.2d 859 (Fla. 1st DCA 1979).

MOTION FOR REHEARING GRANTED.

SUGGESTION FOR CERTIFICATION OF QUESTION DENIED.

ORFINGER and SHARP, JJ., concur.  