Defenses to Possession of a Firearm by a Convicted Felon in Florida

July 18, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

In Florida, possession of a firearm by a convicted felon is a very serious offense. In addition to the prohibition on felons possessing a firearm, Fla. Stat. Section 790.23 also forbids someone convicted of a felony in the state from having ammunition or electric weapons or devices (such as tasers) in their care, custody, or control.

As possession of a firearm by a convicted felon in Florida is a second-degree felony (punishable by up to 15 years in prison and a $10,000 fine), with a 3-year mandatory minimum sentence if found in actual possession, being charged with this can be quite stressful. 

However, various legal defenses exist to the charge of possession of a firearm by a convicted felon – one or more of which may be relevant in a given case. This article will explore defenses to a charge of possession of a firearm by a convicted felon in Florida under Fla. Stat. Section 790.23.

Florida’s law against possession of a firearm by a convicted felon applies to two classes of individuals in the state:

• Someone who has been convicted of a felony (including in another state or federally if punishable by more than 1 year in prison in Florida)
• Someone who was adjudicated delinquent (as a juvenile) for an act that would be a felony if committed as an adult, and is currently under the age of 24

For someone to be proven guilty of the offense, the State must establish all of the following elements beyond a reasonable doubt:

• The defendant had a prior felony conviction (state or federal) or a qualifying juvenile delinquency (and is under 24)
• The defendant knowingly owned or had care, custody, possession or control of a firearm/ammunition/electric weapon, or;
• Carried a concealed weapon

Possession of a firearm by a convicted felon is a second-degree felony, punishable by up to 15 years in prison and a $10,000. However, if the possession is established to be for the purpose of gang-related activity, this becomes a first-degree felony (punishable by up to 30 years in prison and a $10,000 fine) under Fla. Stat. Section 790.23(4). 

A firearm under Florida Statutes Section 790.001 is defined as any weapon which will, is designed to, or may readily be converted to:

• 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.

Ammunition, which is also prohibited, is defined as an object consisting of all of the following elements:

• Fixed metallic or nonmetallic hull or casing containing a primer
• One or more projectiles, bullet, or shot
• Gunpowder

Not only does Fla. Stat. Section 790.23 prohibit a convicted felon from actually or constructively possessing a firearm, ammunition, or electronic weapon – it also prevents the concealed carry by a felon of any deadly weapon – including:

• Dirks
• Metallic knuckles
• Billies (batons or truncheons)
• Tear gas guns
• Chemical weapons or devices
• Any other deadly weapon 

A deadly weapon is any instrument designed to cause death or great bodily harm, or any instrument that was used in a manner likely to cause death or great bodily harm during the crime. This can include guns, knives, or even something like a beer bottle if someone is hit over the head with it. Cloninger v. State, 846 So.2d 1192 (Fla 4th DCA 2003)

Though this charge is very serious, many defenses exist to the allegation. These defenses fall into three categories – statutory defenses, constitutional defenses, and factual defenses.

Beginning with statutory defenses, a defendant may argue (if this is true) that their civil rights had been restored by either executive clemency by the governor or a full pardon. If firearm rights have explicitly been restored to someone – even if they committed a felony – the statute no longer applies to them (Fla. Stat. Section 790.23(3)).

Important: Statutory defenses are affirmative defenses. This means the defense must offer some evidence of the truth of the defense – a simple claim (without anything more) is insufficient. If evidence is produced of the claim underlying the defense, the State must disprove this beyond a reasonable doubt. 

The next statutory defense is that the prior felony was vacated, overturned, or expunged. If any of these occurred, there is no qualifying predicate offense that can be used to bar someone from lawfully owning a firearm. Thus, in such a case, the statute no longer applies.

Yet another is the juvenile adjudication exception. If someone was adjudicated guilty of a felony-equivalent juvenile offense and they are now over the age of 24, Fla. Stat. Section 790.23 no longer applies (unless they have been convicted of another felony).

There are also procedural defenses available if someone is accused of possession of a firearm by a convicted felon. These include, among others:

• Unlawful search and seizure: If law enforcement violates someone’s Fourth Amendment rights by searching and/or seizing evidence without receiving necessary legal permission, the recovered evidence may be ruled “fruit of the poisonous tree” subject to suppression. Wong Sun v. United States, 371 U.S. 471 (1963)
• Miranda violations: If police fail to read a suspect their Miranda rights, do so after already initiating interrogation, or use trickery or coercion to obtain a Miranda waiver, statements made by the suspect during that interrogation are inadmissible in court. Miranda v. Arizona, 384 U.S. 436 (1966)

If a constitutional violation is the source of the discovery of the firearm or is responsible for a defendant’s confession, moving to suppress the resultant evidence can be extremely damaging to the State’s case – and may serve as the grounds for a motion to dismiss.

Finally, there are factual defenses to the possession of a firearm (or ammunition/an electric weapon) by a convicted felon. One of these is a lack of knowing possession. As the law requires knowledge of the prohibited item, this may be relevant in a case where a gun was found in a shared car or house – and there is no evidence tying the defendant specifically to the firearm. 

Another defense is no control or access to the weapon. Even if a firearm is found near a defendant, the State must prove they had dominion (the ability to exercise control) over it. Florida’s courts have held that if an illegal item is found, proximity alone is insufficient to convict someone of a charge stemming from its discovery – independent evidence must be provided of knowledge and ability to control. Brown v. State, 428 So. 2d 250 (Fla. 1983)

An additional defense is that the item does not qualify under Fla. Stat. Section 790.23 as a firearm or other prohibited weapon (or ammunition). If the item found in the defendant’s possession was not a firearm, ammunition or an electric weapon (such as an antique) – or if the item they were found carrying was not a deadly weapon – the statute has not been violated.

Yet another defense is no valid prior felony conviction. If no finding of guilt occurred in the underlying felony case (either by guilty/no contest plea or trial), the defendant is not a felon. This may be relevant if there was a withhold of adjudication (not a finding of guilt) in the case, or if the underlying offense was actually a misdemeanor. 

Moreover, if it is applicable, someone may rely upon a mistaken identity/alibi defense to a Fla. Stat. Section 790.23 charge.

If the identification of an alleged “felon” that was in possession of the weapon was due to any of the following, this may be a strong defense:

• Blurry surveillance footage
• Eyewitness accounts (especially by those who may have motive to lie)
• Circumstantial evidence without actual proof 

In addition to the various legally valid defenses to possession of a firearm by a convicted felon in Florida, there are also many that are not legally recognized or valid in Florida (“non-defenses”). These include:

• “I never bought/owned the gun”: Ownership is not the key in finding a violation, its possession (even if this is constructive)
• “I need it for protection”: Necessity is not a generally valid defense to possession of a firearm by a convicted felon in Florida. However, some Florida courts have recognized that a felon in-possession can potentially invoke a Stand Your Ground defense (despite this typically being barred for defendants engaged in criminal activity). Little v. State, 111 So.3d 214 (Fla. 2d. DCA 2013)
• “I thought my rights were restored”: A defendant’s firearm rights must be actually restored – believing this is insufficient if the law is violated

In sum, possession of a firearm by a convicted felon is a serious felony offense in Florida (typically punishable by up to 15 years in state prison and a $10,000 fine). The law prohibits convicted felons and many young adults adjudicated delinquent as juveniles from possessing a firearm, ammunition, or electric weapon or device – or carrying any deadly weapon.

Despite the heavy penalties someone may face if found guilty, there are many valid defenses to an alleged violation of Fla. Stat. Section 790.23. These include statutory defenses (clemency, full pardon, etc.), procedural defenses (violations of a defendant’s constitutional rights), and factual defenses (alibi, mistaken identity, no actual firearm/prohibited weapon, and more). 

If someone is concerned about a case involving alleged possession of a firearm by a convicted felon, 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