F.S. 790.23 – Convicted Felon in Possession of a Firearm

If you are a convicted felon, you’ve served your time. You’ve completed your parole/probation. You’ve paid your debt to society. But that doesn’t mean all of your civil rights are automatically restored. In fact, a fair number of important civil rights may be permanently denied to you – including your Second Amendment right to bear arms. 

As a Fort Lauderdale criminal defense attorney will explain, F.S. 790.23, being a convicted felon in possession of a firearm, carries substantial penalties. Sometimes, these penalties are even more severe than what you faced for the original felony conviction. 

Unfortunately, it’s a fairly common offense. According to the U.S. Sentencing Commission, there were approximately 70,000 cases of felons in possession of a firearm nationally. Of those, about 6,700 were federal cases/convictions. The percentage of cases was highest in the South. In the federal system, 98% of those convicted were sentenced to prison. Those whose cases involved aggravating factors, such as drug trafficking, had even harsher penalties. 

In Florida, unless you have had your civil rights and firearm authority restored or had their conviction expunged, it is illegal per F.A. 790.23 for you to:

• Own or have 
• In your care, custody, possession or control
• Any firearm, ammunition or electric weapon or device
• Carry a concealed weapon (including a tear gas gun or chemical weapon or device)

Here, as noted in Florida Criminal Jury Instruction 10.15, “care” and “custody” mean the immediate charge and control exercised by a person over the named object. 

“Possession” in this case can mean actual or constructive possession. Actual possession means that the firearm is in your immediate physical possession, such as in your hand or pocket. Constructive possession is when the firearm isn’t physically on you, but it is located in a place that you control, such as somewhere in your vehicle or in your home. 

Individuals to whom the statute applies include those who have been:

• Convicted for a felony in the courts of Florida.
• Found, in Florida courts, to have committed a delinquent act that would be considered a felony if committed by an adult and such person is under the age of 24.
• Convicted or found to have committed a crime against the U.S. which is designated as a felony.
• 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 age 24.
• Found guilty of an offense that is a felony in another state, territory or country that is punishable by imprisonment for a term exceeding 1 year. 

F.S. 790.23 does NOT apply to individuals who: 

• Were convicted of a felony but have had their civil rights and firearm authority restored.
• Has had their criminal history record expunged. 

Also, just because you received a general restoration of civil rights doesn’t mean you automatically regain the right to own, possess or use a firearm. As a Fort Lauderdale criminal defense attorney can explain, you typically have to apply specifically for that and there’s an 8-year waiting period from the date your sentence expired or your state supervision was terminated. 

It’s also worth noting that these restrictions apply even if you’re simply out hunting with your friends. As noted by the Florida Fish & Wildlife Conservation Commission, convicted felons need to be cautious about being in a location where firearms are going to present – and that includes hunting. If you know about the firearm and are in a position to exert dominion/control over that firearm, you could be charged. It could be as simple as riding in a truck with other hunters who have firearms. If you’re a convicted felon on probation, check with your probation officer or a criminal defense lawyer before you go hunting to ensure you’re clear on the parameters. 

In order to secure a conviction for F.S. 790.23, prosecutors have to establish several key elements beyond a reasonable doubt: 

• Prior felony conviction. 
• The first element the state must establish is that the defendant has a prior felony conviction. This could be a conviction from a Florida court, another state, or a federal court. It’s important to note that the conviction must be final, meaning that the individual has exhausted all appeals or that the time for appeal has expired.
• Knowledge of Felony Conviction 
• The prosecution must also show that the defendant knew they had been convicted of a felony. Typically, this is not difficult to prove since most people are aware of their criminal record. However, if the conviction occurred in another jurisdiction or if there are mitigating circumstances where the individual was unaware of their status as a felon, this could potentially serve as a defense.
• Possession, Control, or Ownership of a Firearm or Ammunition. 
• Finally, the state must prove that the defendant was in possession, control, or ownership of the firearm or ammunition. This includes both actual possession (having the firearm on their person) and constructive possession (where the firearm is in a place the defendant controls, such as their home or car). Constructive possession is often more difficult for the prosecution to prove because it requires showing that the defendant had knowledge of the firearm's presence and the ability to control it.

Possession of a firearm by a convicted felon is a second-degree felony under Florida law. If convicted, a defendant could face the following penalties:

• Up to 15 years in prison
• Up to 15 years of probation
• Fines of up to $10,000

In certain cases, if a firearm is used or discharged during the commission of a separate felony, penalties may be enhanced under Florida’s 10-20-Life statute, which imposes mandatory minimum sentences for crimes involving the use of firearms.

Being charged under Florida Statute 790.23 for possession of a firearm by a convicted felon is a serious offense that can result in life-changing penalties. However, depending on the circumstances, there are several legal defenses that may be available to challenge the charge. By working with an experienced criminal defense attorney, defendants can ensure their rights are protected and explore all possible defenses to avoid a conviction or mitigate the penalties.

Among the potential defenses we might use:

One of the strongest defenses to a charge of possession of a firearm by a convicted felon is the argument that the defendant did not possess the firearm or ammunition. If the firearm was found in a location that the defendant did not control or had no knowledge of, they may be able to argue that they were not in possession of the weapon.

For example, if a gun is found in a shared home or vehicle, the prosecution must prove that the defendant knew about the firearm and had access to it. If the defendant had no knowledge of the gun, constructive possession cannot be established.

If the firearm was discovered during an unlawful search, the evidence may be suppressed. Under the Fourth Amendment, individuals are protected from unreasonable searches and seizures. If law enforcement violated the defendant’s rights by conducting an illegal search or failing to obtain a proper warrant, the defense could file a motion to exclude the firearm from evidence.

Without the firearm, the prosecution may not have enough evidence to prove possession, which could result in the dismissal of the case.

Another defense may be based on the argument that the defendant’s civil rights have been restored. In some cases, a convicted felon may regain the right to own firearms if their civil rights have been restored by the state or federal government. This restoration would negate the prosecution’s argument that the individual is a prohibited person under the statute.

In some cases, a defendant may argue that they were falsely accused or that another individual actually possessed the firearm or ammunition. This can arise in situations involving mistaken identity, where someone else is responsible for the illegal possession, but the defendant is blamed.

As mentioned, the prosecution must prove that the defendant knew they were in possession of the firearm or ammunition. If the defense can show that the defendant did not know the weapon was present (for example, if the gun belonged to a co-occupant or was left behind in a vehicle), this could negate the possession element of the charge.

If you or someone you know has been charged under F.S. 790.23, it’s crucial to seek legal counsel immediately to build a strong defense strategy.

If you have been charged with a gun crime or weapons offense in South Florida, contact the Fort Lauderdale Criminal Defense Lawyers at The Ansara Law Firm by calling (954) 761-4011.