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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 being a felon in possession of a firearm are particularly harsh even when no one was hurt and the firearm was never fired or otherwise used in a crime. For actual possession of a firearm, the second degree felony comes with a three year minimum mandatory prison sentence.

Florida law also prohibits a felon from possessing a weapon or ammunition. Those offenses are classified as a second degree felony, although no minimum mandatory prison sentence applies.

Although the penalties are harsh, important defenses exist in these cases including a showing that the evidence should be suppressed because of an illegal search or seizure. Other defenses revolve around self-defense. In some cases, the defenses resolve around showing that the defendant did not possess the firearm on an actual or constructive basis.

Attorneys for Felony in Possession of a Firearm in Tampa, FL

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.

After the arrest, these charges are listed on the arrest report on the website of the Hillsborough County Sheriff’s Office as FELON IN POSSESSION OF A FIREARM with a charge code of “WEAP7005.”

The attorneys at Sammis Law Firm represent clients on serious felony charges in the greater Tampa Bay area including Hillsborough County, Hernando County, Pasco Couny, and Polk County, Florida.

Our main office is located in downtown Tampa, FL, just a few blocks from the courthouse. We also have a second office in New Port Richey in Pasco County, located directly across from the courthouse at the West Pasco Judicial Center.

Call 813-250-0500 to discuss your case.


Florida Statute Section 790.23 – Felon in Possession

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:

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.

Section 790.23 makes it a crime for a felon to possess a concealed weapon, which would include any dirk, metallic knuckles, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.

It is not illegal to possess a firearm under Florida law if your civil rights and firearm authority was restored, although those cases are extremely rare.


Penalties for Felon in Possession of a Firearm

The charge of felony possession of a firearm is a second degree felony punishable by up to fifteen (15) years in prison. If the prosecutor proves “actual possession,” then the offense carries with it a three (3) year minimum mandatory prison sentence. This crime is ranked level 5 under the Florida Criminal Punishment Code.

If you are convicted of possession of ammunition by a convicted felon, then the offense is a second degree felony punishable by up to fifteen (15) years in prison, although no minimum mandatory prison sentence applies.

Possession of a weapon by a convicted felony is also a second degree felony punishable by up to fifteen (15) years in prison without any 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.


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.


Proving Actual Possession of the Firearm by a Felon

To impose a three-year mandatory minimum sentence after trial, the judge in a bench trial or the jury in a jury trial must make a specific finding of actual possession. The special interrogatory verdict typically asks whether the defendant did or did not actually possess a firearm during the commission of the offense.

At trial, the special interrogatory is a mandatory prerequisite to 10–20–Life sentence enhancement, because the enhancement requires the jury to find facts different from the facts necessary to convict of the underlying crime.


Additional Resources

Felon in Possession Section 790.23 – Visit the Online Sunshine website, the official internet site of the Florida Legislature to find the statutory language for Section 790.23, F.S., for felons and delinquents in possession of firearms, ammunition, or electric weapons or devices unlawful. Find the elements of the offense and the statutory maximum and minimum penalties.


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, then contact an experienced criminal defense attorney.

At Sammis Law Firm, our attorneys fight serious felony charges in Hillsborough County, Pinellas County, Pasco County, or Polk County, Florida. Contact our experienced criminal defense attorney in Tampa to discuss your case today.

Call (813) 250-0500 for a free case evaluation.


This article was last updated on Friday, March 1, 2019.

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