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Defending Agains Firearms and Weapons Criminal Charges in Florida

The Florida Constitution protects people’s rights to possess a gun. Article I, §8, of the Florida Constitution, says, in summation, that the people of Florida have a right to defend themselves and can use a firearm to do so. Section 8 expressly allows the government to regulate the manner someone in Florida possesses or carries a firearm without violating the right to bear arms. Section 8(b) of Article I imposes a three-day waiting period for purchasers of firearms, such as pistols and revolvers, unless the purchaser possesses a concealed carry permit. There is no similar constitutional restriction on shotguns and rifles.

In Florida, about 1.3 million people were issued a concealed carry permit. Each person who is licensed to conceal a firearm while carrying it is presumed by the law to be competent to carry the weapon and of sound character. These are the assurances we have that firearms will not be used against innocent victims. Instead, we expect law-abiding citizens will use a firearm for self-defense and not offense. That is what the 2nd amendment to the United States Constitution, in concert with Article I, §8 of the Florida Constitution, grants us.

Merely because Florida issued the most concealed carry permits in the United States is no indication that Florida prosecutors are soft on gun crime. In fact, Florida’s laws carry some of the stiffest penalties in the United States for unlawful possession of a firearm, firing, or brandishing a firearm while committing a crime. Additionally, the United States Code also imposes strict penalties for felons in possession of firearms. Therefore, a person who is prohibited by law from possessing a firearm could expose himself or herself to severe, harsh, draconian prison sentences for possession of an item that is otherwise lawful to possess.

The maximum penalty for carrying a concealed firearm in Florida is a five-year prison sentence. Section 790.01(2) of the Florida Statutes establishes the crime of carrying a weapon concealed on the person as a third-degree felony. Conversely, unlawfully carrying or concealing a weapon, like a nunchaku, knives, or tear gas, is a misdemeanor and subjects the offender to one year in jail for a first-degree misdemeanor. Therefore, a person without a record who lawfully purchases a firearm in Florida but carries it concealed could serve up to five years in prison, even if the offender has no prior criminal record. Fortunately, Florida law, unlike other states, does not impose a minimum mandatory jail or prison sentence for carrying a concealed weapon unlawfully.

Convicted felons cannot possess a firearm under Florida law. Section 790.23 of the Florida Statutes criminalizes possession of firearms, ammunition, electric weapons, tear gas, or other chemical weapons after having been convicted of a felony. The statute does not limit the scope of the prior felony convictions to violent charges or drug charges, for example. Instead, the statute prohibits anyone from possessing a firearm or other weapon which was convicted of a felony in Florida, against the United States, or another state. The prohibition extends to anyone who was found delinquent of a crime that would be a felony if the individual were an adult in Florida but who is younger than 24.

A felon in possession of a gun or other weapon under Florida law faces a second-degree felony. As such, the offender is subject to a maximum penalty of fifteen years committed to a Florida prison.

Firearm possession by a prohibited person under Florida law is a first-degree felony in limited circumstances. Florida’s legislature enacted a statute that allows the judge to increase the severity of the punishment if the person was guilty of committing a “gang-related offense.” Section 874.04 of the Florida Statutes allows the prosecution to allege the underlying crime was a gang offense.

If the jury finds that the prosecution proved the underlying offense to benefit somehow, promote, or advance the interests of a gang, the penalty enhances one level. For example, a person convicted as a felon in possession of a firearm is also convicted of the gang-related sentencing enhancement, then the crime of felon in possession, which is a second-degree felony, becomes a first-degree felony. The maximum penalty for a first-degree felony in this circumstance would be life in prison.

A possible sentence for felon in possession charges at the federal level could be extremely severe. Possession of a firearm or ammunition as a felon or other prohibited person is a felony under federal law as well as Florida law. Under federal law, 18 USC §922(g), and (n), a person could be charged under this statute if he or she has any combination of three or more violent convictions or felony drug convictions involving possession to sell or traffic.

Aggressive defense of these charges could encourage the state’s attorney in Florida to plea bargain the case to a lesser offense or dissuade the prosecution from bringing the charges in the first instance. An aggressive defense begins with vigorously pursuing a motion to suppress.

In Florida, a motion to suppress is a pleading that asks the judge to review the case to determine if the police violated the rights of the accused when seizing the firearm, ammunition, or other contraband. A qualified attorney will understand how to examine the case from a constitutional perspective. The attorney should assess all of the potential grounds for suppression and file the appropriate pleadings.

The judge will listen to the evidence in court to determine if the police did not meet their burden. For example, if the police seized the gun after a car stop, the police and prosecution must admit evidence that rebuts the presumption that searches conducted without warrants are unreasonable. In other words, the police must persuade the judge that they had an exception to the warrant requirement and therefore searched the car lawfully.

A person accused of unlawful gun possession could also be arrested during the execution of a search warrant. The defendant should pursue a motion to suppress the warrant if the warrant is devoid of probable cause.

Arguing possession at trial is also a defense to gun charges in Florida. For example, if the police find a gun in a house, they could charge the person living there. However, the accused could defend the case by arguing that he or she did not know the gun was there or could not exercise dominion and control over it. In that instance, that defendant would receive the benefit of an acquittal.

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