Firearm Possession: Actual vs. Constructive Possession

Possession of a firearm, ammunition, or any electronic device or weapon after being convicted of any felony is a crime in violation of both Florida and Federal criminal law. In order to prove this charge, the prosecution must first establish that you have previously been convicted of a felony. Florida law deems an individual a convicted felon if they have been convicted of an enumerated felony in the State of Florida or if convicted of a charge with a sentence of over one year in prison outside of the State of Florida. Additionally, if you were adjudicated delinquent as a juvenile for any felony offense, you may not legally possess a firearm.

In addition to proving that you were a prior convicted felon, the State must prove you possessed the firearm actually or constructively. Actual possession is what most people commonly think of as possession: having actual possession means to have physical custody or control of an object. To have actual possession of a firearm means to have the firearm located on your person. If the state can prove actual possession of the firearm, the offense carries a three year minimum mandatory prison sentence.

The second form of possession is constructive possession. If the State is proving possession through constructive possession, the State does not have to prove that you had the firearm on you at the time of your arrest. In cases where the State is proving possession through “constructive possession” the State has to prove beyond a reasonable doubt the defendant knew of the presence of the firearm and had the ability to exercise control over it.

The majority of felon in possession cases are tried under this constructive possession theory. In these cases, defendants are charged with possession of a firearm that is found in a home, a vehicle, or a place where the defendant was visiting or commonly visits.

In situations where the defendant is charged with constructive possession in a jointly occupied home and the firearm is not in plain sight, the fact that the firearm is close to the defendant in proximity is not enough to prove that he possessed it. In these type of cases, the State is required to provide more evidence to prove possession. This evidence can come in the form of incriminating statements, fingerprints, DNA, or eyewitness testimony indicating the defendant possessed the firearm at some point in time. However, where the only proof of guilt is circumstantial, the State will not be able to prove the charge if there is a reasonable theory of innocence. The charge of Felon in Possession of a Firearm is a third degree felony. If convicted, the penalty is up to five years in prison or probation.

If you or someone you know has been arrested or accused of felon in possession of a firearm, or any other misdemeanor or felony offense, please contact our firm for a free consultation so we can provide you with the legal assistance you need. Contact us today and see what an attorney at Taracks & Associates can do for you.

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