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Possession of a Firearm by a Convicted Felon

Charges for possession of a firearm by a convicted felony are particularly common in Florida. In fact, crime statistics maintained by the Florida Department of Law Enforcement show that statewide, there were 3,479 arrests for this offense from January 1, 2012 to December 1, 2012. The penalties for this offense are particularly harsh even when noone was hurt and the firearm was never fired or otherwise used in a crime.

Although the penalties are harsh, important defenses exist in these cases including self-defense. In many of these cases, the person was not actually in possession of the firearm. Instead, the arresting officer will allege that the possession was "constructive" because it was found nearby under circumstances that suggest the defendant was previously in actual possession. This circumstantial evidence can be contested in court.

If you have been charged with the criminal felony offenses of being in possession of a firearm, ammunition, or weapon as a convicted felon in Tampa, Hillsborough County, FL, then contact call us. Contact an experienced criminal attorney to discuss your pending charges in Hillsborough County, Polk County, Pasco County, or Pinellas County, Florida to discuss your case.


Florida Statute Section 790.23 - Felon in Possession

Possession of a firearm, ammunition, or an electronic device or weapon after being "convicted" of any felony offense is a crime under both federal law and the criminal laws of the State of Florida. Under Florida Statute Section 790.23, the prosecutor can attempt to prove that you possessed a firearm, ammunition or an electric device or weapon either through actual possession or constructive possession.

Actual possession means that the firearm was found on your person, while constructive possession can be proven under certain circumstances when the firearm is found in your house or vehicle. Additionally, Section 790.23 makes it a crime for a felon to possess a concealed weapon, which would include any tear gas gun or chemical weapon. It is not illegal to possess a firearm under Florida law if your civil rights and firearm authority was restored.


Penalties for Felon in Possession of a Firearm

The charge of felony possession of a firearm is a third degree felony punishable by up to five (5) years in prison or on probation. Additionally, if the prosecutor can prove "actual possession" then the offense carries with it a three (3) year minimum mandatory prison sentence.


Proving that the Defendant is a Convicted Felon

Under the laws of Florida, you are considered a "convicted felon" if you have ever been convicted of any felony offense in the State of Florida, or any offense outside of the State of Florida that carries a possible sentence of more than one year in prison.

Additionally, if you were adjudicated delinquent as a juvenile for any offense that would have been a felony if you had been charged as an adult, then you may not legally possess a firearm.


Elements of Felon in Possession Charges

Pursuant to Florida Statute Section 790.23, it is a crime for a felon to carry a concealed weapon or possess a firearm, ammunition, or electric weapon or device. In order to prove the charge at trial, the prosecutor for the State of Florida must prove the following elements beyond all reasonable doubt:

  1. The defendant has previously been convicted of a felony;
  2. After the felony conviction the defendant knowingly owed or had in his control, custody, possession or care a firearm, ammunition, or an electric device, or the defendant knowingly carried a concealed weapon.

Statutory Definitions under the Felon in Possession Charge

Under the Florida statute that governs possession of a firearm by a convicted felon, the term “convicted” is defined as a judgment entered in a criminal proceeding by a court pronouncing the accused guilty.

A "deadly weapon" is defined under Florid law as a weapon likely to cause death or great bodily injury.

"Custody" and "care" are defined as the immediate control or charge exercised by a person over the named object.

The term possession is defined as having personal charge of or exercising the right of control, ownership or management of the object. Possession may be constructive or actual.

Constructive possession means the object is in a place over which the defendant has control, or in which the defendant has concealed it. Actual possession is defined an object being in the hand of or on the person, the object is in a container in the hand of or on the person, or the object is so close as to be within ready reach and is under the control of the person.


What Constitutes Sufficient Evidence of Possession?

Florida jury instructions provide that the mere proximity to an object is not sufficient to establish control over the object when the object is not in a place over which the person has control. If an object is in a place over which the defendant does not have control, then the State can establish constructive possession by proving that the defendant has knowledge that the object was within the defendant's presence, and that the defendant has control over the object.

Florida law also provides that possession may be joint. Joint possession means that two or more persons may jointly possess an object, exercising control over it. In that case, each of those persons is considered to be in possession of that object.If a person has exclusive possession of an object, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of an object, knowledge of its presence may not be inferred or assumed.


Choosing an Attorney for Felon in Possession Charges

If you have been charged with any kind of firearm, gun or weapon charge, including possession of a firearm by a convicted felon, in Hillsborough County, Pinellas County, Pasco County, or Polk County, Florida, then contact an experienced criminal defense attorney in Tampa to discuss your case today. Call the Sammis Law Firm at 813-250-0500 for a free case evaluation.

This article was last updated on Friday, October 30, 2015.