Why Prosecutors File Enhanced Charges Under §790.07 and How a Florida Gun and Drug Crime Defense Lawyer Can Fight Back

If you’ve been arrested in Florida with a firearm and any controlled substance like marijuana, you may be shocked to learn that the charges can escalate far beyond basic possession. The moment a firearm is found in connection with a drug offense—even a nonviolent one—state prosecutors may seek a mandatory prison sentence. I’ve represented many individuals who didn’t realize how serious the situation was until they were staring at felony enhancement charges under Florida Statute §790.07.

As a Florida Gun and Drug Crime Defense Lawyer, I work with people from all walks of life who are suddenly facing the possibility of years behind bars, all because they had a firearm and drugs in proximity. Let me walk you through what the law says, what the penalties can be, and why hiring a private defense attorney like me can be the difference between prison and a second chance.

Understanding §790.07: Armed Possession of Drugs

Under Florida Statute §790.07, it is a felony offense to possess a firearm while committing or attempting to commitcertain crimes—including violations of Florida’s drug laws. The statute reads:

§790.07(2), Florida Statutes

“Whoever, while committing or attempting to commit any felony, possesses a firearm shall be guilty of a felony of the second degree.”

That means if you’re caught with marijuana and a gun—even if you were not using the weapon—prosecutors can argue you possessed the firearm during a felony. If your marijuana possession charge is upgraded to felony status (for quantity, packaging, or proximity to a school), or if you’re accused of intent to distribute, the presence of the firearm creates a new, separate felony charge.

This enhancement doesn’t require you to be holding the gun or pointing it at anyone. If it’s under the seat, in the glove box, or even in a locked trunk but considered accessible, they can and often do apply §790.07.

The Real Penalties of an Armed Drug Possession Charge

Here’s what many people don’t realize: once §790.07 comes into play, you’re no longer looking at probation or a short county jail sentence. Now you’re facing:

  • A second-degree felony punishable by up to 15 years in state prison
  • Mandatory minimum sentencing if the firearm is discharged or used
  • Loss of civil rights, including gun ownership
  • Driver’s license suspension
  • Barriers to employment, housing, and licensing

The stakes increase even more if you have prior convictions, were in a school zone, or if federal law enforcement becomes involved. You cannot afford to walk into court with a public defender and hope the system shows you mercy.

Case Example: Charges Dropped for a Client Arrested With Marijuana and a Firearm

One of my recent cases involved a 22-year-old client pulled over in Tampa for speeding. The officer claimed to smell marijuana and initiated a vehicle search. Inside the center console was a small bag of marijuana, a scale, and a licensed handgun under the passenger seat. He was charged with felony marijuana possession with intent to distribute and possession of a firearm while committing a felony.

The prosecution wanted prison time and threatened to add trafficking charges. We got to work immediately. I filed a motion to suppress based on unlawful search, citing the officer’s lack of probable cause once we discovered his bodycam didn't show any odor-based justification. I also obtained video proving the firearm was lawfully stored and not within immediate reach.

After a contested suppression hearing, the judge agreed with our position. The gun charge was dropped, and the drug charge was reduced to misdemeanor possession. My client walked out with probation and no felony record.

Legal Defenses to Armed Drug Charges in Florida

I never assume a case is open-and-shut just because police find both a gun and drugs. These are complex cases, and prosecutors must prove every element beyond a reasonable doubt. Common defenses I’ve used successfully include:

  • Unlawful search and seizure: If the gun or drugs were found without a valid warrant, probable cause, or legal exception, the evidence may be thrown out entirely.
  • Constructive possession: If multiple people had access to the area where the items were found, prosecutors must prove you had control over both the gun and the drugs.
  • Legal firearm possession: Just because a firearm is present doesn’t mean you committed a crime. If it was legally stored and not part of the criminal activity, that matters.
  • Lack of intent: Prosecutors must tie the gun to the commission of a felony. Simple proximity isn’t always enough.
  • Mere presence: Being near a firearm or drugs doesn’t mean you possessed either.

If your case involves any combination of drugs, weapons, or aggressive police conduct, these defenses need to be carefully evaluated. A private defense lawyer like me can file the right motions, retain expert witnesses, and force the prosecution to prove every element.

Why a Private Defense Attorney Is Critical

If you’ve been arrested for armed drug possession in Florida, the outcome of your case could impact the rest of your life. Public defenders are hardworking but overloaded. They don’t always have the time or resources to challenge every aspect of your arrest, file motions to suppress, or fight enhancements. You need a lawyer who will:

  • Scrutinize police body camera footage and radio logs
  • Challenge the legality of the traffic stop or home search
  • Investigate whether the firearm was legally owned and stored
  • Examine whether the drug charges rise to felony level
  • Negotiate alternative sentencing or dismissal when possible

I’ve built my defense strategies by looking at every angle, questioning the state’s assumptions, and forcing them to back up their case. The sooner I’m involved, the more we can do to protect your future.

What If It’s a First Offense?

Many people think a first-time offense guarantees leniency. But when firearms are involved, prosecutors are far less willing to offer diversion or deferred prosecution. Even if you’ve never been in trouble before, they may seek prison time if they believe you were armed during a drug crime.

That’s where we come in. I’ve secured pretrial diversion for clients facing firearm and drug charges by challenging the validity of the enhancements, arguing for mitigation, and presenting my client’s personal history, employment records, and willingness to undergo substance abuse counseling.

What You’re Really Up Against

Law enforcement officers in Florida have been instructed to treat firearms seriously, especially when paired with drug activity. They see it as a public safety issue, not a paperwork mistake. Prosecutors are under pressure to bring aggressive charges—and they often do so without fully investigating whether the gun was actually used in the commission of a felony.

The burden is on you to fight back. And that starts with putting the right defense in place from day one.

Florida Gun and Drug Crime Defense FAQs

Can I be charged with felony possession even if the marijuana was for personal use?

Yes. If the amount of marijuana or other drugs found exceeds 20 grams, or if there are other indicators like baggies, scales, or cash, police may allege intent to distribute. That elevates it to a felony, which then allows prosecutors to use the firearm enhancement under §790.07.

Does it matter if the gun was legally owned?

It helps, but it’s not enough on its own. Even if you lawfully purchased and registered the firearm, the state can still charge you under §790.07 if they claim you were committing a felony drug offense at the same time. What matters most is how and where the gun was stored and whether it can be tied to the alleged felony.

What if the gun wasn’t loaded?

Under Florida law, a firearm does not need to be loaded to qualify under §790.07. The key issue is whether it was possessed during the commission of the alleged felony. However, the presence of ammunition or whether the gun was operational could influence sentencing if convicted.

Can I get the charge sealed or expunged later?

If you are convicted of a felony, you will not be eligible to seal or expunge the record under Florida law. However, if we can get the charge dismissed, reduced to a misdemeanor, or diverted through a pretrial program, you may be eligible. That’s why it’s essential to fight aggressively at the outset.

How can a lawyer help if the evidence seems strong?

I’ve defended many cases where the evidence looked overwhelming at first. The reality is, police often cut corners during traffic stops or searches. A good defense lawyer will find those weaknesses, file the right motions, and challenge the state’s assumptions. Just because they say they found drugs and a gun doesn’t mean you’re guilty of a felony.

Florida Gun and Drug Crime Defense Lawyer Call Us Right Now 

Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation

Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have 35 office locations throughout the state of Florida and serve all counties in Florida, including Jacksonville, Miami, Tampa, Orlando, St. Petersburg, Hialeah, Port St. Lucie, Cape Coral, Tallahassee, Fort Lauderdale, and the Florida Panhandle.