The Second Amendment to the Constitution guarantees the right to own a firearm. According to a Pew Research Center survey, 24% of Americans are exercising that right. But, for convicted felons, the right is lost, and the penalties in Florida for possessing one are severe.
Possession of Firearm Unlawful
According to §790.23, a person convicted of a felony by a Florida court is prohibited from having “in his or her care, custody, possession, or control any firearm [or] ammunition.” This also applies to individuals found guilty of a felony in another state, territory, or country which was punishable by a prison sentence of over one year. Further, the prohibition against possession of a firearm also applies in situations where a person committed a delinquent act that would have been a felony had the person been an adult and the person is still under 24 years of age. However, a convicted felon may still possess a firearm if that person had their civil rights and firearm authority restored. This may be accomplished by application with the Office of Executive Clemency.
A firearm is “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” as defined by §790.001(6). It does not include an antique firearm, which is defined as being a firearm manufactured before 1918 or a replica of such a firearm, regardless of whether it was manufactured before 1918.
A violation of this law is considered a second degree felony, punishable by a fine of up to $10,000 and by imprisonment of up to 15 years. However, if the offense is committed by a person who qualifies for the penalty enhancements under §874.04, the offense is considered a first degree felony. The penalty enhancement applies if a defendant committed an offense in relation to criminal gang activities. The potential punishment may be any term not exceeding life imprisonment.
Actual vs. Constructive Possession
The courts have interpreted the statute to mean that possession of a firearm may be actual or constructive. See Wilcox v. State. Actual possession exists where a person has physical possession and knowledge of the physical possession. An example of this is when a firearm is in a person's hand or pocket. When a convicted felon is found to be in actual possession of a firearm, they face a mandatory minimum sentence of three years.
Constructive possession occurs if the accused knows of the presence of a firearm “on or about his premises and has the ability to maintain control over” it. An example of this would be if a person, without having physical possession of a firearm, is in a house that contains one. This is more difficult to prove than actual possession.
West Palm Beach Defense Attorneys
If you have been convicted of a felony and are now being charged with possession of a firearm, you are facing a serious offense with significant penalties. It is critical that you seek competent legal counsel to protect your rights. At Farkas & Crowley, P.A., we have the experience and expertise to help you achieve the best possible outcome in your case. Please contact us in south Florida today with any questions you may have.