Concealed Firearms, Poss. by Felon

POSSESSION OF A CONCEALED FIREARM,
CONCEALED WEAPONS, AND
POSSESSION OF A FIREARM BY A CONVICTED FELON

Firearm and Weapon offenses can make your day worse in several ways. First of all, the possession of a firearm or weapon during the commission of another crime (such as an assault or battery) can quickly turn a misdemeanor offense into a mandatory prison term felony case. Details such as the exact type of weapon, the exact location of the weapon, and the defendant's access to the weapon all factor into the analysis.

As you might expect, defining "firearm" is an issue all by itself, because often times the alleged gun is never recovered at the scene of the crime. Thus, if a defendant used a mere BB Gun to commit a robbery, the defendant can still be convicted of Robbery with a Firearm if the only testimony presented is victim testimony describing something that looked like a gun. Unfortunately, even if the government is unable to prove a firearm was used, they can still proceed with a Robbery charge as a "Robbery with a Deadly Weapon". But if it turns out the 'gun' is actually a pellet gun, can the state prove such a gun is "deadly"? This 'deadly' issue is not clearly resolved by the courts, often times the question of a weapon's deadliness is left up to the jury to decide. Courts have held that kitchen knifes can be considered weapons for concealed weapons purposes, but this decision is for a jury to make. However, the courts have decided that a small wooden bat, for example, is not a "weapon" for concealed weapons purposes. A Chinese star is considered a weapon under the concealed weapon statute because it's sole modern use is to cause great bodily harm (at least, according to Florida courts).

Possession of a Concealed Firearm & Possession of a Concealed Weapon

For those charged with Possession of a Concealed Firearm or Possession of a Concealed Weapon, even if the State can get through the first hurdle of proving the item to be a firearm or weapon, criminal defense attorney John Guidry is still going to push this defense further, by asking whether or not the person was in "actual possession" of the firearm (or weapon), and such an analysis concentrates on the defendant's access to the weapon. A common example of this is a person stopped for a traffic violation, and the car is subsequently searched. A gun is found. Is the defendant, the sole occupant of the car, guilty of Possession of a Concealed Firearm? No, because the gun must be "readily accessible" to the driver in order for the charge to stick. A further analysis of what it means to be "carrying" a firearm can be found in my article "Carrying Concealed Firearms, But Not Really "Carrying"". If the gun or weapon is not readily accessible, it's a tough case to prove. And, what happens if a citizen is caught concealing a firearm within his own home? Will a concealed firearm charge stick under such circumstances? For more info, check out "Carrying a Concealed Firearm Has It's Limits".

And of course, let's not forget about those cases where an officer claims that a firearm is concealed, yet the firearm is clearly visible to the naked eye. How then, is a gun concealed, if it can be seen? For those of you interested, a more in depth analysis of the issues surrounding 'concealed' weapons can be found in my article entitled "Police Define "Concealed" Firearm As 'In Plain View?'"  To see what a Motion to Dismiss might look like in a case in which the officer claims to see the firearm, yet also claims the firearm is concealed, scroll to the bottom of the page and check out my brief example motion.

Concealed Firearm or Concealed Weapon Within a Vehicle

How much concealment is required on a charge arising from a firearm or weapon found within a vehicle?  Vehicles pose unique legal circumstances,  and I wrote an article about this topic entitled "How to Dismiss a Concealed Weapons Charge".  The article takes a close look at O.S. v. State, 120 So. 3d 130 (Fla. 3d DCA 2013).  O.S. was convicted at the trial level for carrying a concealed weapon, but the appellate court threw out the conviction because they found that the weapon was not, technically, concealed.  Here's some brief facts: when the cops pulled O.S. over, they didn't see a weapon.  However, when they asked O.S. to open his door, the cop immediately spotted a weapon on the inside pocket of his driver door.  The court found that, as a matter of law, the weapon did not meet the definition of "concealed" because (1) the weapon was not covered by another item, (2) O.S. admitted to the weapon being there, (3) the officer immediately recognized the weapon, and (4) O.S. may no attempts to hide the item.  Yes, I have oversimplified the analysis a bit, but you get the idea. 

Possession of a Firearm by a Convicted Felon

Possession of a firearm by a convicted felon is a serious offense, in part because it carries a three year minimum mandatory prison sentence. But, possession of a firearm by a convicted felon can be a tough case to prove, though it looks easy on the surface. In one case, the State admitted a felony judgment that did not contain a middle initial, fingerprints, or other identifying information. The appellate court overturned the conviction because the state failed to prove the defendant was the subject of the felony conviction. See Mason v. State of Florida, 853 So. 2d 544 (1st DCA 2003). If the state can prove a Possession of a firearm by a convicted felon charge, the case carries a 3 year minimum mandatory sentence, but in order to receive the minimum mandatory sentence, the felon must be in actual possession of the firearm. Thus, if the firearm was in 'joint' possession, the minimum mandatory does not apply.

But just in case possession of a firearm by a convicted felon wasn't bad enough, law enforcement often charge it's twin brother, possession of ammunition by a convicted felon. Possession of ammunition by a convicted felon is just a serious as a firearm charge. The problem comes when the state gets greedy and attempts to charge a citizen with separate charges for the firearm and ammunition. In such instances, one of theses charges should be dismissed. For more information on these dismissal situations, check out my article "Possession of Ammunition and a Firearm by a Convicted Felon". But prosecution greed doesn't stop there. If a convicted felon is caught with multiple guns, expect to see several counts of possession of a firearm by a convicted felon. One count per firearm. Of course, the extra charges should be dismissed for technical reasons (multiplicity), and you can find a discussion of a four count possession charge in my article "Criminals Possessing Lots of Guns".

DNA Evidence Found on Firearm

Lately, investigators have been obtaining DNA evidence from these guns, in order to better match the guns to the convicted felon.  Does this work?  Well, not necessarily.  You see, with DNA evidence, there is no way of knowing when a defendant actually touched the firearm.  A prime example of just such an issue is the case of Miller v. State, 107 So.3d 498 (Fla. 2d 2013). 

Miller was convicted of possession of a firearm by a convicted felon due to a gun found in between a mattress at an apartment he shared with his sister (thus, this is constructive possession case).  The State found Miller's DNA on the hidden firearm.  Because DNA does not come with any sort of dating information, it is important to note that Miller became a convicted felon in April of 2008.  The gun was found in May of 2009.  The court threw out Miller's conviction, noting that, even though "the State presented DNA evidence that established that Miller had touched the gun at some undetermined point in the past, it presented no evidence whatsoever to establish that Miller knew that the gun was between the mattress and box spring in his sister's room on May 12, 2009, or that he had the ability to exercise any control over the gun at that time." id at 500-501.  So, as you can see, DNA evidence is not all it is cracked up to be.  And, if you're interested in a deeper discussion of the Miller case, check out my article "DNA Can't Prove Possession".

As you might expect, some guns are so old that they are no longer considered firearms under Florida law. This is called the "antique firearm" exception to the definition of a "firearm", and thus it is not unlawful for a felon to possess such antique weapons. There are many more exceptions to these firearm and weapon rules, give criminal defense attorney John Guidry a call to discuss the facts of your case.

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