In Florida, the charge of unlawful possession of a firearm by a convicted felon is one of the more serious offenses under Florida law. The severe penalties often result in long prison terms and significant fines. However, various legal defenses are available that can mitigate or eliminate the consequences of these firearm charges, depending on the circumstances of the case. This article is by Christian Van Riper, a former prosecutor, and Florida criminal defense attorney representing defendants charged in St. Lucie, Martin, Palm Beach, or Broward County.
The Law: Florida Statute § 790.23
Under Florida Statute § 790.23, it is illegal for any person who has been convicted of a felony to possess, own, or control a firearm, ammunition, or electric weapon. This prohibition extends to all felons, regardless of whether the felony conviction occurred in Florida or out of Florida. A conviction for unlawful possession of a firearm by a convicted felon is classified as a second-degree felony, which can carry penalties of up to 15 years in prison, 15 years of probation, and fines reaching $10,000. If the defendant is found to be in possession of a firearm during the commission of another felony, sentencing enhancements under Florida’s 10-20-Life Law may apply, leading to even more severe consequences.
Florida Defense of Unlawful Possession of a Firearm by a Convicted Felon
Several defenses should be considered. The strength and applicability of each defense depend on the unique facts and evidence in the case.
1. Lack of Knowledge
To secure a conviction, the prosecution must prove that the defendant knowingly possessed the firearm. In cases where the gun was found in a vehicle or a shared space, such as a home or apartment, it may be difficult for the state to prove that the defendant was aware of the firearm’s presence. If the defense can establish that the defendant had no knowledge of the firearm, the charges may be dismissed.
2. Constructive Possession
Possession in Florida can be either actual or constructive. Actual possession means that the firearm was physically on the person or within immediate reach. Constructive possession refers to a situation where the firearm is not physically on the defendant but is in a location over which they have control.
In constructive possession cases, the prosecution must prove the defendant had both the ability to control the firearm and knowledge of its presence. A skilled defense attorney can challenge the state’s evidence by arguing that someone else had control or that the firearm was not readily accessible.
3. Entrapment
If law enforcement officials encouraged or coerced the defendant into obtaining or possessing the firearm, the defense of entrapment may be available. Entrapment occurs when a defendant is induced by law enforcement to commit a crime they otherwise would not have committed. However, this defense is challenging to prove and must show that the idea for the crime originated with the police, not the defendant.
4. Restoration of Civil Rights
In some cases, a defendant may believe they are no longer prohibited from owning a firearm due to the restoration of their civil rights. In Florida, certain rights, including the right to vote, may be restored after a felony conviction. However, the right to possess a firearm can only be restored through a specific process, which includes applying for clemency from the Florida Office of Executive Clemency. If the defendant’s firearm rights were restored and this can be proven, the charges may be dropped.
5. Invalid Search and Seizure
The Fourth Amendment of the U.S. Constitution protects citizens from unreasonable searches and seizures. If law enforcement conducted a search without a valid warrant or probable cause, any evidence obtained—including the firearm—may be suppressed. An experienced attorney can file a motion to suppress, which could result in the dismissal of the case if the evidence is deemed inadmissible.
6. Temporary Possession
In some instances, a defendant may claim temporary possession of the firearm. For example, if the defendant was holding or moving the firearm with the intent to dispose of it or hand it over to law enforcement, this may be a valid defense. However, the burden is on the defendant to prove they did not intend to retain control over the firearm.
Potential Penalties and Sentencing Enhancements: Florida Defense of Unlawful Possession of a Firearm by a Convicted Felon
The consequences of a conviction for unlawful possession of a firearm by a convicted felon in Florida are significant. As mentioned, the base charge is a second-degree felony, but certain factors can lead to sentencing enhancements. These factors include:
– Use of the firearm in another crime: If the firearm was used or discharged during the commission of another felony in Florida, the penalties could be drastically increased.
– Prior convictions: Defendants in Florida with prior violent felony convictions may face enhanced sentencing, potentially qualifying them for Florida’s habitual offender or career criminal statutes, which impose longer sentences.
Conclusion: Florida Defense of Unlawful Possession of a Firearm by a Convicted Felon
A conviction for unlawful possession of a firearm in Florida by a convicted felon can have life-altering consequences, but with the right defense strategy, it may be possible to avoid or reduce those consequences. If you or a loved one has been charged with this gun crime, contact our Florida criminal defense attorney, Christian Van Riper, for a free criminal defense consultation. Attorney Christian Van Riper is a former prosecutor in the 19th Judicial Circuit and a skilled and dedicated criminal defense attorney representing clients charged with crimes in St. Lucie County, Palm Beach County, Martin County, and Broward County, Florida.
Christian is known for his accessibility and knowledge of criminal law. He consistently provides his clients with personalized and effective legal representation. One of the key aspects that set Christian Van Riper apart from other Florida criminal defense lawyers is his experience as a former prosecutor. This experience gives him unique insight into how the prosecution builds its cases and the strategies they employ in court. He firmly believes that accessibility to his clients is a hallmark of his criminal defense practice. Contact Christian if you or a loved one has been charged and awaiting a bail hearing as Chritian Van Riper may be able to reduce or eliminate the need for a bond.
Christian diligently represents clients charged with drug crimes, prescription fraud, domestic battery, BUI, DUI, violation of probation, computer fraud, credit card fraud, immigration fraud, workers’ compensation fraud, fishing violations, maritime criminal charges, and all felonies and misdemeanors.
Van Riper and Nies is a veteran-owned law firm. We offer a 20% discount for all U.S. military veterans.
Contact Information
Christian Van Riper, Esq.
Van Riper and Nies Attorneys
Martin and St. Lucie: 772-283-8712
Palm Beach: 561-948-5588
Broward: 954-369-0776
Port St. Lucie and Stuart Criminal Defense Lawyers: 772-283-8712. 900 SE Ocean Boulevard, Suite 140-E, Stuart, FL 34994
West Palm Beach Criminal Lawyers: 561-948-5588. 801 Northpoint Parkway, Suite 375, West Palm Beach, FL 33407
Deerfield Beach Criminal Lawyers: 954-369-0776. 10 Fairway Dr, Suite 139, Deerfield Beach, FL 33442
Delray Beach Criminal Lawyers: 561-948-5588. 55 SE 2nd Avenue, Delray Beach, FL 33444
West Boca Raton Criminal Lawyers: 9825 Marina Boulevard, Suite 100A, Boca Raton, FL 33428
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