Former State Prosecutor
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Under Florida Statute Section 790.23, the crime of “Possession of a Firearm by a Convicted Felon” requires proof beyond a reasonable doubt that the defendant was a convicted felony and knowingly possessed a firearm.
As a preliminary matter, it must first be proven that you are actually a convicted felon. A "withhold of adjudication" imposed by a Circuit Court Judge in Florida doesn't count because you must actually be "adjudicated guilty" to be considered a convicted felon for purposes of this statute.
To prove this second-degree felony, the prosecutor can often decide between a theory of actual possession or constructive possession. This distinction is important because if actual possession is alleged and proven, then the crime carries a three-year minimum-mandatory prison sentence.
In order to prove actual possession of a firearm, the prosecutor must prove the firearm was found in the hand of or on the defendant’s person, or in a container in the hand of or on the person. In order to prove constructive possession of a firearm, the prosecutor must provide that the firearm is in a place over which the defendant had control, or in which the defendant concealed it.
If you were charged with the crime of Possession of a Firearm by a Convicted Felon, a felony in the second degree in St. Petersburg or Clearwater, FL, or in the surrounding areas in Pinellas County, FL, then contact a criminal defense attorney at Morris Law Firm, P.A. to discuss your case.
Our firearm defense attorneys in Pinellas County can help you understand the charges pending against you, possible defenses, and the best way to fight the charges aggressively. We represent clients on a variety of criminal charges involving a weapon or firearm.
Call us at (727) 388-4736 today.
Under Florida law, the crime of “Felon in Possession of a Firearm” is charged as a Second Degree Felony, which is punishable by up to fifteen (15) years in Florida State Prison and a $10,000 fine. Under Florida's Criminal Punishment Code, the crime is assigned a Level 5 offense severity ranking.
As discussed above, if actual possession of the firearm is proven then the crime carries a three-year minimum-mandatory prison sentence.
The statutory scheme provides for a defense to this charge if the Florida State Board of Pardons & Paroles restores all of the defendant's civil rights, including the right to carry a gun which is called "with firearm authority."
In other words, if the defendant was able to have his or her civil rights and firearm authority restored prior to the offense, then the person cannot be convicted of Possession of a Firearm by a Convicted Felon as provided in Florida Statute 790.23(2).
Although many people convicted of a felony are able to get their civil rights restored, only a small number of people are able to restore their right to possess a firearm.
In addition to an "adjudication of guilt" for a felony in Florida, if you have been convicted of a felony outside of Florida and your offense carried a possible sentence of more than one year in prison, you are not eligible to possess a firearm in Florida under state or federal law.
Also, if you were sentenced as a juvenile of a delinquent act that would have been a felony if you were charged as an adult, you are not allowed to possess a firearm.
If you entered a plea in a felony case in state court in Florida, then you are NOT considered to be a convicted felon for purposes of this statute if you received a “withhold of adjudication.” For many years, federal law was unclear about whether a "withhold of adjudication" under state law was a "conviction" for purposes of a prosecution in federal court.
How do you know whether you were adjudicated guilty or received a "withhold of adjudication"? The only way to know for sure is to get a certified copy of your judgment and sentence from the clerk of court in the county in which your case was resolved. The judgment and sentence will say whether the court withheld adjudication or adjudicated you guilty.
Also keep in mind that if you were sentenced to felony probation and violated the probation, the court might have adjudicated you guilty of the underlying offense at a subsequent sentencing hearing, even though you were originally granted a withhold of adjudication.
In United States v. Clarke, 780 F.3d 1131, 1132 (11th Cir. 2015), certified question answered, 184 So. 3d 1107 (Fla. 2016), the court considered whether a conviction qualifies for purposes of § 922(g) and found that the determination should be made "in accordance with the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(a)(20).
The question before the Clarke Court was whether Florida treats a guilty plea with adjudication withheld as a “conviction” for purposes of Florida's felon-in-possession statute. See United States v. Chubbuck, 252 F.3d 1300, 1304 (11th Cir.2001) (“[T]he ... appropriate source of applicable Florida law [for evaluating the term ‘conviction’ in § 922(g) ] would be that surrounding Florida's own unlawful possession of firearms by a felon statute, Fla. Stat. Ann. § 790.23.”).
The Florida Supreme Court finally answered that question in United States v. Clarke, 822 F.3d 1213, 1214–15 (11th Cir. 2016). In that case, the Florida Supreme Court settled this issue by finding that a guilty plea in Florida for a felony when the court imposes a "withhold of adjudication" does NOT qualify as a “crime punishable by imprisonment for a term exceeding one year.”
For that reason, the court found that a withhold of adjudication imposed by a Circuit Court Judge in Florida would not be a "conviction" for purposes of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), which makes it a felony under federal law for a convicted felon to possess a firearm.
Florida's Weapons and Firearms State Statue
According to Florida Statute Section 790.23, a convicted felon may be charged with Possession of a Firearm by a Convicted Felon, a second degree felony. The statute provides:
(1) It is unlawful for any person 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, including a tear gas gun or chemical weapon or device, if that person has been:
(a) Convicted of a felony in the courts of this state;
(b) Found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age;
(c) Convicted of or found to have committed a crime against the United States which is designated as a felony;
(d) Found to have committed a delinquent act in another state, territory, or country that would be a felony if committed by an adult and which was punishable by imprisonment for a term exceeding 1 year and such person is under 24 years of age; or
(e) Found guilty of an offense that is a felony in another state, territory, or country and which was punishable by imprisonment for a term exceeding 1 year.
(2) This section shall not apply to a person convicted of a felony whose civil rights and firearm authority have been restored.
(3) Except as otherwise provided in subsection (4), any person who violates this section commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) Notwithstanding the provisions of s. 874.04, if the offense described in subsection (1) has been committed by a person who has previously qualified or currently qualifies for the penalty enhancements provided for in s. 874.04, the offense is a felony of the first degree, punishable by a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
Morris Law Firm, P.A. aggressively defends the legal rights of those charged with the crime of being a felon in possession of a firearm, while addressing all related issues that should be taken into consideration.
While there is no mandatory minimum prison sentence for constructive possession, there is a three-year minimum mandatory prison sentence for actual possession, with a possibility of up to fifteen years imprisonment. Handling these cases successfully is not easy. Experience matters.
If you have been charged with Firearm Possession by a Felon in St. Petersburg or Clearwater in Pinellas County, then contact one of the experienced criminal defense attorneys at Morris Law Firm, P.A.. We also represent clients charged with this serious criminal offense in Pasco County, Manatee County, Sarasota County and the surrounding areas.
We can help you understand how your felony gun rights might be impacted by a plea to a felony when the court in Florida imposed a "withhold of adjudication." Because of these recent changes in the law, many people are confused about whether they can own or buy a gun after a plea to a felony when the court imposes a withhold of adjudication.
Take advantage of our online form or call us today at (727) 388-4736 for a free initial consultation.
This article was last updated on Tuesday, April 17, 2018.
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