FAQs About Possession of a Firearm By A Convicted Felon in Florida

September 10, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida, possession of a firearm by a convicted felon (Fla. Stat. Section 790.23) is a very serious offense. However, it is often misunderstood – as there is confusion about when the law applies and the potential penalties someone faces if convicted. This blog will answer frequently asked questions about possession of a firearm by a convicted felon in Florida.

#1 – What qualifies someone as a “felon in possession” of a firearm?

This is the first question that is often asked in these cases. For someone to be proven guilty of possession of a firearm by a convicted felon in Florida, the State must prove all of the following beyond a reasonable doubt:

• The defendant has been convicted of a felony (in Florida, another state, federal court), or was found delinquent in a felony juvenile case and is the under age of 24
• The defendant owned (or had in their care, custody, possession, or control) a firearm, ammunition, or electric weapon or device
• The defendant knew the firearm (or ammunition/device) was present and intentionally exercised control over it

#2 – What are the penalties for felon in possession? Is it a felony?

Felon in possession of a firearm is a second-degree felony in Florida, punishable by up to 15 years in prison and a $10,000 fine. If the firearm was possessed to benefit, promote or further gang activity, it is a first-degree felony (up to 30 years in prison and a $10,000 fine).

If the defendant was in actual possession of the firearm (or ammunition or  prohibited device), a conviction carries a mandatory minimum sentence of 3 years in prison (Fla. Stat. 790.23). Someone faces the same potential maximum penalties for constructive (indirect) possession, but there is no mandatory minimum sentence.

#3 – When is it considered “actual possession?”

Actual possession occurs when someone has physical possession of an item and knowledge of that physical possession. 

This means the item is either in the hand of the person, on their person, or in a container in their hand or on their person. Actual possession can also extend to situations where a firearm (or other prohibited item) is so close to the person as to be within their ready reach and under their control. Swain v. State, 226 So.3d 1002 (Fla. 1st DCA 2017)

Examples of actual possession that violate Fla. Stat. Section 790.23 may include:

• A gun in a convicted felon’s hand
• A clip full of ammunition found in a convicted felon’s pocket
• A taser found in a convicted felon’s backpack that they are wearing at the time

#4 – Can I be convicted even if I wasn’t found in actual possession?

Yes, someone may be convicted if they are found to have constructively (indirectly) possessed the firearm(s), ammunition, electric weapon or other prohibited device under Florida law. For someone to be found guilty of felon in possession on a theory of constructive possession, the State must prove someone had:

• Knowledge of the item’s presence
• The ability to exercise control or dominion over the item (even if this was not physically observed by police)
• Knowledge of the illicit nature of the item

The State does not have to prove the defendant knew about the felon in-possession law. The defendant must simply know of the nature of the item (that it was a firearm, ammunition, etc.) and have possessed it, despite being prohibited from doing so by statute. Williams v. State, 724 So.2d 1214 (Fla. 4th DCA 1998)

#5 – What are felons prohibited from possessing under the statute?

If someone is accused of violating Florida’s felon in possession statute, it is important to understand this does not just apply to firearms. Other items covered by the statute include:

• Ammunition (e.g. bullets, cartridges or shells – even just a single bullet or shell casing)
• Electric weapons or devices (stun guns, tasers, or other electronic shock-producing devices intended for offensive or defensive purposes)
• Tear gas guns or chemical weapons/devices (e.g. certain pepper spray launchers)

#6 – How is a firearm defined in Florida?

A firearm is defined as any weapon that will, is designed to, or may readily be converted to expel a projectile by the action of an explosive. This includes the frame or receiver of such a weapon, any firearm muffler or silencer, any destructive device, or a machine gun. In re Standard Jury Instructions in Criminal Cases–Report No. 2012-04, 131 So.3d 720 (Fla. 2013).

Antique firearms are excluded from this definition. An antique firearm is a firearm manufactured in or before 1918 (or a replica), or any firearm that uses ammunition manufactured in or before 1918. Moreover, the ammunition must no longer be manufactured in the United States and must be “not readily available in the ordinary channels of commercial trade.”

#7 – What if I was convicted of a felony in another state?

Florida’s law prohibiting felons in possession of a firearm still applies. Someone may be convicted of a felony in another state court or federal court – and they are prohibited from possessing a firearm (or other item listed by the statute) in Florida as a result (Fla. Stat. 790.23).

#8 – What if I have a felony conviction (or equivalent) in another country?

This also triggers the statute. The law covers anyone convicted of an act in another country that would constitute a felony (punishable by 1 year or more in prison) if it was committed by an adult in Florida. 

However, if the crime in the other country was severely punished but is not a crime (or not a felony) in Florida, Fla. Stat. 790.23 does not apply.

#9 – What if someone is found delinquent in a juvenile felony case?

If someone is found to have committed “a delinquent act” as a juvenile that would have been considered a felony if they were an adult, they are covered by the statute until they turn 24. If that juvenile turns 24 and has not committed another felony, they become eligible to own a firearm. 

#10 – Is there any way for a convicted felon to get their gun rights back?

Florida law prohibits all felons from owning a firearm permanently unless any of the following occur:

• Someone was a juvenile found delinquent and turns 24 without committing an additional felony
• The jurisdiction in which the felony occurred restores someone’s full civil rights and firearm authority
• Expungement of criminal history/record
• Clemency by the Florida Clemency Board (must be approved by at least three cabinet members and the Governor)
• Presidential pardon

#11 – Can someone be convicted just because their DNA is found on a gun?

Not necessarily, especially if the DNA evidence does not exclude every reasonable hypothesis of innocence. State v. Sephes, 262 So.3d 811 (Fla. 4th DCA 2019). 

If law enforcement finds a felon’s DNA (e.g. fingerprints) on a firearm but cannot definitively exclude the possibility that it got there legally (such as someone touching the gun before they were prohibited from having it), Florida law prohibits a conviction without additional evidence of possession. 

#12 – What if adjudication is withheld? 

Under Florida law, only those convicted of a felony are prohibited from possessing a firearm (or other prohibited item). However, federal law defines conviction more broadly. The 11th U.S. Circuit has held a withhold can still qualify as a conviction for federal firearm prohibition purposes if:

• Someone pled guilty or no contest to a felony
• The court imposed some form of punishment, penalty or restraint on liberty (even if just probation)

The Florida Supreme Court ruled in Clarke v. United States that Fla. Stat. Section 790.23 does not treat a withhold of adjudication as a conviction for purposes of triggering the statute. So, while state law may not be implicated if someone receives a withhold, this may still trigger federal firearm restrictions.

#13 – Can a felon in possession use Stand Your Ground as a defense?

Potentially, but this is another murky issue. Florida’s District Courts of Appeal are conflicted, with the 2nd DCA holding that a felon can invoke Stand Your Ground if the only “criminal activity” they were engaged in was using the firearm in self-defense, defense of others, or to prevent the commission of a forcible felony. Little v. State, 111 So. 3d 214 (Fla. 2d. DCA 2013)

The 4th DCA held, by contrast, that felons cannot rely upon Stand Your Ground (SYG) if they use a firearm – because possessing and discharging the gun as a felon is criminal activity (Fla. Stat. 790.23). Someone engaged in criminal activity at the time of the use of force is generally prohibited from relying upon SYG as a defense. State v. Hill, 95 So. 3d 434 (Fla. 4th DCA 2012).

As DCAs conflict on this point, trial courts may allow or not allow a felon in possession to rely upon Stand Your Ground if they had a lawful right to be where they used the force and were not engaged in any other criminal activity. This makes finding an experienced and aggressive Florida defense attorney critical if involved in such a case.

By understanding the answers to the above FAQs, someone will be significantly better informed if they or a loved one are ever accused of possessing a firearm (or other item prohibited by Fla. Stat. 790.23) as a convicted felon. If you are curious about potential defenses to this charge, an article about that can be found here.

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.

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