Felon in Possession of a Firearm
Tampa Felon in Possession Of A Firearm Attorney
In Florida, it is against the law for a person that has been convicted of a felony to possess a firearm.
What Must The Prosecutor Prove To Convict An Accused Of Felon In Possession Of A Firearm?
To convict an accused of felon in possession of a firearm, the prosecutor must prove:
- The accused had been convicted of a felony.
- After the conviction, the accused knowingly possessed a firearm.
“Convicted” means that a judge has found a person guilty of a crime. A withhold of adjudication does not count as a conviction.
What Does The Phrase “Possess A Firearm” Mean?
There are two ways in which a person can possess a firearm:
- Actual Possession of a Firearm
Actual possession of a firearm means the person is aware of the presence of the firearm, and:
- The firearm is in the hand of or on the person, or
- The firearm is in a container in the hand of or on the person, or
- The firearm is so close as to be within ready reach and is under the control of the person.
For example, if a person carries around a shopping bag and knows that the shopping bag contains a firearm, that person has actual possession of the firearm.
- Constructive Possession of a Firearm
Constructive possession means the person is aware of the presence of the firearm, the firearm is in a place over which the personhas control, and the person has the ability to control the firearm.
For example, if a person hidesa firearm in the attic of his home and then leaves the home to go to work, he stillhas constructive possession of the firearm because he is aware of the presence of the firearm, the firearm is in a place over which hehas control, and he has the ability to control the firearm.
What Are The Penalties For Felon In Possession Of A Firearm?
In Florida, felon in possession of a firearm is a second-degree felony punishable by a maximum of:
15 years of imprisonment
A $10,000.00 fine
15 years of probation
However, if the accused is convicted of actual possession of a firearm, the judge must impose a 3-year minimum mandatory prison sentence.
What If The Accused Possessed Ammunition Rather Than A Firearm?
Florida law also prohibits persons convicted of felonies from possessing ammunition.
The penalties for felon in possession of ammunition are the same as the penalties for felon in possession a firearm.
Do Juvenile Felony Convictions Count As Prior Convictions In A Florida Felon In Possession Of A Firearm Case?
Yes, but only until the person turns 24 years old.
So, if a judge adjudicates aperson delinquent in a felony case, then that person cannot legally possess a firearm until then have turned 24 years old. If the persondoes possess a firearm before they turn 24 years old, the police can charge them with felon in possession of a firearm.
However, the 3-year minimum mandatory prison sentence that applieswhen a convicted felon has actual possession of a firearm does not apply to persons whoare considered convicted felons because they were adjudicated delinquent as juveniles.
What Are Some Defenses to Felon in Possession of a Firearm?
- No Valid Consent to Search
The general rule is that a police officer must get a warrant from a judge before he or she can search a suspect.
There are exceptions to this rule. For example, police can search a suspect if that suspect voluntarily consents to a search. However, if the police make threats or promises to get a suspect to consent to a search, any evidence that is found as a result of that search can’t be used against the suspect in court.
For example, imagine a person named Robert has a prior felony conviction. One day a police officer, based on nothing more than a hunch, asks Robert for consent to searchhim. The officer tells Robert that if he does not consent to the search, that the officer will arrest him and take him to jail. Robert consents to the search, and the police officer finds a firearm in his jacket. The police officer then arrests Robertand charges him with felon in possession of a firearm.
In a case like this, Robert’s defense attorney could file a motion to suppress, and argue that Robert’s consent to search was not voluntary, but coerced. If the judge agrees, the judge will order that all evidence that was obtainedduring the search (including the firearm) will be inadmissibleat a trial. In that case, the prosecutor would likelydismiss the case.
- Miranda Rights Violations
When police detain a suspect, they must read the suspect his or her Miranda rights before they ask the suspect any questions. If police fail to read the suspect his Miranda rights, any statements the suspect makes will be inadmissible in court.
Frequently, in felon in possession of a firearm cases, the prosecutor needs the accused person’s statement to police in order to prove the accused knew about the presence of the firearm. If the police officer failed to read the suspect his Miranda rights, or the police officer read the Miranda rights incorrectly, the judge will exclude the suspect’s statement, leaving the prosecutor without enough evidence to prove the case.
- Lack of Evidence to Prove Constructive Possession
As stated above, for a person to have constructive possession of a firearm, the person must be aware of the presence of the firearm, the firearm must be in a place over which the personhas control, and the person must have the ability to control the firearm.
Sometimes, a prosecutor may be able to prove one or two of the constructive possession requirements, but not all three.
For example, imagine that Fred has a felony conviction. One afternoon, Fred borrows his friend’s car to go to the store, but on the way he gets stopped for speeding. While the police officer is handing Fred a speeding ticket, shenotices a firearm on the rear floorboard of the vehicle. The police officer, aware that Fred is a convicted felon, arrests Fred for felon in possession of a firearm.
In these circumstances, a defense attorney can ask the prosecutor to drop the charges against Fred, arguing to the prosecutor that without more evidence (like Fred’s fingerprints on the gun, or Fred’s admission that he knew the gun was in the car) the prosecutor won’t be able to prove that Fredwas aware of the firearm’s presence.
- Unlawful Detention
In order to detain a person, the law says that a police officer needs to have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. However, sometimes police officers stop people based on hunches, rather than well-founded reasons.
When police officers detain and search persons without a reasonable suspicion, a defense attorney can file a motion requesting that the judge exclude any evidence that was discovered as a result of the unlawful detention and search.
Are you looking for the best criminal defense lawyer in Tampa Florida to represent you in a Felon in Possession of a Firearm case?
Tampa Attorney David C. Hardy is a former prosecutor that now represents persons accused of Felon in Possession of a Firearm. He is Board Certified by the Florida Bar and the National Board of Trial Advocacy as an Expert in Criminal Trial Law. As a prosecutor and defense attorney, he has extensive experience handling Felon in Possession of Firearm charges.
If you or a loved one has been arrested for Felon in Possession of a Firearm in Hillsborough County Florida, Pinellas County Florida, or Pasco County Florida, Attorney David C. Hardy has the knowledge, skills, and experience to guide you through this process and obtain the best possible results.