Defenses to Grand Theft of a Firearm in Florida

July 8, 2025 Don Pumphrey, Jr. Criminal Defense, Theft/Property Crimes Social Share

In Florida, grand theft of a firearm is a very serious criminal offense. Under Fla. Stat. Section 812.014(2)(c)(5), theft of a firearm of any value is considered grand theft – a third-degree felony punishable by up to 5 years in prison and a $5,000 fine.

If someone is charged with grand theft of a firearm, this may initially seem like a hopeless situation. However, there are many defenses that exist to this charge. This article will explore defenses to the charge of grand theft of a firearm in Florida.

For someone to be found guilty of grand theft of a firearm, the State must prove the following elements beyond a reasonable doubt:

• The defendant knowingly and unlawfully took or used (or attempted to take or use) a firearm
• The defendant’s intent was to temporarily or permanently deprive the firearm’s owner of their right to the firearm and/or a benefit from it
• The defendant did not have the consent of the firearm’s lawful owner

Under Florida Statutes Section 790.001, a firearm is defined as any weapon which “will, is designed to, or may readily be converted to” do any of the following:

• Expel a projectile by the action of an explosive
• Any firearm muffler or silencer
• The frame or receiver of a firearm
• Any destructive device
• Any machine gun

Note: An antique firearm is not considered a firearm unless it has been used in the commission of another crime. An antique firearm is any firearm manufactured in or before 1918 or a replica.

If someone is accused of third-degree grand theft of a firearm (of any value), there are various legal defenses available. One of these is a lack of intent to steal.

This defense is most likely to be utilized in cases where:

• The defendant believed the firearm was theirs or that they had a right to possess it
• The defendant took the firearm accidentally, not realizing it was someone else’s
• The defendant took the firearm with the owner’s permission or under the belief that they had it 

All of these negate the mens rea (mindset) element of the offense – so if the facts of a particular case support a lack of intent defense, it can be very useful in successfully fighting a grand theft of a firearm charge.

Another potential defense is mistaken identity. If a firearm was allegedly stolen amid a chaotic situation and the defendant was misidentified as the thief (potentially based on grainy camera footage or unreliable eyewitness accounts), a mistaken identity defense may be useful. This is especially the case if the firearm was not found in the defendant’s possession.

Yet another defense is a lack of evidence of direct possession.

If an allegedly stolen firearm is found in a “common area” (such as a shared residence or car) where multiple individuals have access, the State must prove:

• The defendant had knowledge of the stolen firearm
• The defendant had the ability to exercise dominion and control over it
• The defendant had knowledge of the illicit (illegal) nature of stolen firearm

If multiple individuals have access to an area where the stolen firearm was found, the State must provide additional evidence of a defendant’s knowledge of and ability to exercise control over the stolen firearm for a conviction. Mere proximity is not enough. Brown v. State, 428 So. 2d 250 (Fla. 1983). 

Another potential defense to the charge of grand theft of a firearm is that the firearm was being taken back from someone who wrongfully deprived you of it. If someone can establish that they were the rightful owner of a firearm, a conviction of grand theft of a firearm cannot stand, as one cannot steal their own property. 

An additional defense may include duress or necessity. This can be a particularly potent defense if the alleged theft of a firearm occurred to stop what would have been greater harm, such as disarming a would-be mass shooter of the gun they were about to use to commit the offense.

A necessity or duress defense can succeed (including in a grand theft of a firearm case) when the following elements are true (Jenks v. State, 582 So. 2d 676 (Fla. 1st DCA 1991)):

• There was a reasonable fear of imminent danger that the defendant did not create
• The danger threatened serious harm or death
• No reasonable alternative existed other than committing the crime
• The criminal act was done to avoid that danger
• The harm avoided was greater than the harm caused

Another potential defense may be an alibi defense if the accused was not present at the scene of the alleged theft when it took place. An alibi defense can be supported by:

• Witnesses corroborating the defendant’s presence elsewhere
• Surveillance footage or GPS
• Receipts or other physical documents

Though there are many legally valid defenses to grand theft of a firearm, there are some defenses to this charge that are considered legally invalid in Florida. These include:

• “The gun was only worth $50”: In Florida, the value of the stolen firearm does not influence the charge – the theft of a firearm is automatically third-degree felony grand theft
• “I was going to return it”: Return of the firearm after temporarily depriving its rightful owner of it does not undo the theft.
• “Nobody got hurt”: The charge does not require injury or death to be caused as a result of the theft
• “I was drunk/high”: Voluntary intoxication is not a defense in Florida (Fla. Stat. 775.051)
• “It was a family member’s gun”: There is no family exemption to the statute

In sum, grand theft of a firearm is a very serious felony offense in Florida. Regardless of the underlying value of the firearm, grand theft of a firearm is a third-degree felony punishable by up to 5 years in prison and a $5,000 fine. 

Various defenses exist to this charge, making it critical to consult an experienced and aggressive North Florida defense attorney as soon as possible. These defenses include mistaken identity, alibi, lack of intent to steal, rightful ownership (if someone was the actual owner of the firearm), necessity and duress, and more.

If someone is concerned about a grand theft case, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

  Social Share