Felon in possession of a firearm is a second degree felony under Florida law and comes with some harsh penalties, including possible mandatory minimum prison time. The charge does not require that the gun was actually used or even exhibited. However, several defenses exist and can be used to successfully avoid a possible lengthy prison sentence. Defenses include showing that the weapon was discovered as a result of an illegal search or seizure or that the defendant did not actually or constructively possess a firearm.
Given the serious nature of this charge, it is important to have a knowledgable and experienced criminal defense attorney on your side. Kerstin Wade has represented many convicted felons against this charge and knows what it takes to get you the best possible outcome. Our office is in downtown Tampa, close to the Hillsborough County courthouse.
If you or a loved one is charged with possession of a firearm by a convicted felon, contact us at 813-401-0130 for a free consultation.
Florida statute 790.23 makes it illegal for a convicted felon to “own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon.”
The state has to prove the following two elements beyond a reasonable doubt:
• The defendant is a convicted felon
• The defendant either directly or indirectly possessed a firearm, ammunition, electric weapon or carried a concealed weapon.
To prove that the defendant is a convicted felon the prosecutor has to prove that the defendant was convicted of a felony (a charge punishable by more than 1 year in jail) in either Florida or another state. The state attorney can also prove that the defendant was found delinquent of a felony in juvenile court and is under 24 years old.
If you received what is called a withhold of adjudication under Florida law, you will not be considered a convicted felon and will still be able to legally possess a firearm.
If your civil rights and rights to possess a gun have been restored, you can legally possess a firearm and cannot be found guilty of this charge.
You would be considered to be in actual possession of a firearm if you carried the gun directly on your person or in your hand or if the gun was in a container directly on your person.
Constructive possession means that the object was found in a place over which you had control. This would include your car or house for example. However, it is not enough for the state attorney to show that the firearm was in your car or house but he or she also has to show that you had knowledge that the firearm was there.
It is important to note that if there is a gun in your car and you as well as your significant other were both in the car and had knowledge the gun, you would both be in possession of the gun.
According to Florida statute 790.001 A firearm “means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive.”
If the gun qualifies as antique, the state cannot show that the defendant illegally possessed a firearm. Florida statute 790.001 (1) defines an antique firearm “as any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.”
Possession of a firearm by a convicted felon is a second degree felony and is punishable by up to 15 years in prison or probation and a $10,000 fine. If the state can prove beyond a reasonable doubt that the defendant was in actual possession of a firearm, the charge carries a minimum mandatory prison sentence of 3 years in prison.
There are several defenses to possession of a firearm by a convicted felon. One type of defense is when the state is unable to prove one of the elements. For example if the state is unable to prove that the defendant was in actual or constructive possession as defined above. Maybe the defense can show that the firearm actually qualifies as an antique firearm.
Depending on the circumstances, an experienced criminal defense attorney may be able to show that the gun was found as a result of an illegal search or seizure. Examples of this include when the police arrest you without probable cause or if the police search your car without your permission and without having any other reason to search your car. Sometimes police may have coerced you to allow them to search your car or house. Under those circumstances the court may find that the search or seizure was illegal and would exclude any evidence that was found as a result of the illegal search or seizure, including the firearm.