North Florida’s Highest Court Reverses Felon In Possession of Firearm and Ammunition Conviction on Double Jeopardy Grounds

December 19, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 1st District Court of Appeal found that a defendant was impermissibly convicted separately of possession of a firearm by a convicted felon and possession of ammunition by a convicted felon. 

In Florida, possession of a firearm by a convicted felon is a serious felony offense under Fla. Stat. 790.23. For someone to be guilty, the State must prove 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

Felon in possession of a firearm/ammunition is considered a second-degree felony in Florida. This makes it punishable by up to 15 years in prison and a $10,000 fine. It is a first-degree felony if it is proven the defendant possessed the firearm to benefit, promote or further gang activity.

Note: Actual possession of a firearm or ammunition in violation of the statute carries a 3-year mandatory minimum sentence. If someone is found to have constructively possessed the firearm (knew about and exercised dominion/control, but did not physically possess at time of arrest), there is no such minimum. Bundrage v. State, 814 So.2d 1133 (Fla. 2d. DCA 2002)

For more information on actual and constructive possession under Florida law and how this distinction impacts criminal cases, click here.

Critically, Fla. Stat. 790.23 does not just prohibit convicted felons from having firearms. The following are also forbidden from being possessed by those covered by the statute, and carry the same potential penalties (second-degree felony) under state law if a felon is found in possession of them:

• 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)

Though it may be surprising, the statute does not simply apply to felons who were convicted in Florida. The law also prohibits someone in either of the following situations from possessing a firearm, ammunition, or other item prohibited by the statute:

• Convicted of a felony in another U.S. state or federal court, or;
• Was convicted of a crime in another country that qualifies as a felony (punishable by 1 or more years in prison) in Florida

Occasionally, a convicted felon will be found to have actually or constructively possessed not just a firearm, but other prohibited items such as ammunition. But if this occurs, can the State bring multiple charges against the defendant – one for illegally possessing the firearm itself, and another for possessing ammunition?

The answer to that question is no, as doing so violates a defendant’s protection against double jeopardy under the Fifth Amendment to the U.S. Constitution. Let’s take a look at a recent case from Tallahassee and North Florida’s highest court (Florida’s 1st DCA) – McQuay v. State, and how it applies this principle.

KEY CASE: McQuay v. State (Florida’s 1st District Court of Appeal, December 3, 2025)

In McQuay, the defendant (McQuay) was found to have been in possession of both a firearm and ammunition in Levy County, Florida. Rather than simply charging him with one count of felon in possession of a firearm, the State brought two second-degree felony charges against him:

• Count 1: Possession of a firearm by a convicted felon under Fla. Stat. 790.23
• Count 2: Possession of ammunition by a convicted felon under Fla. Stat. 790.23

At trial, McQuay was convicted on both counts. He quickly appealed to Florida’s 1st District Court of Appeal, arguing that his protection against double jeopardy (multiple punishments for the same course of criminal conduct) was violated by the dual convictions. 

The 1st DCA agreed with McQuay and instructed the trial judge to reverse either one of the two convictions. Summarizing its findings, the court wrote:

“Christopher McQuay appeals his dual convictions for possession of a firearm and ammunition by a convicted felon as a violation of double jeopardy. Taking account of the State’s concession of error and the text of § 790.23(1), Florida Statutes (2022), we agree with McQuay’s argument. See State v. Whaley, 70 So. 3d 654, 655 (Fla. 1st DCA 2011) (reversing and remanding with instructions that the State was limited to a single count of possession of either a firearm or ammunition by a convicted felon); see also Bell v. State, 122 So. 3d 958, 961 (Fla. 2d DCA 2013) (holding that defendant’s dual convictions for felon in possession of ammunition and felon in possession of firearm violated double jeopardy) … We therefore REVERSE and REMAND with instructions to vacate one of the § 790.23(1) convictions and resentence accordingly.”

After examining the opinion, there are a few things that are notable about the 1st DCA’s opinion in McQuay. These include:

• The 1st DCA has already held dual convictions under the felon in possession statute arising from the seizure of firearms and ammunition during the same search violates double jeopardy (see, e.g., State v. Whaley, 70 So. 3d 654, 655 (Fla. 1st DCA 2011))
• The State immediately conceded error (admitted it should not have charged McQuay with two counts of violating Fla. Stat. 790.23 when he initiated his appeal)
• The 1st DCA instructed the trial court to reverse one of the two convictions – but did not say which (as each carries the same potential penalty)

In sum, McQuay v. State is a major new decision by Florida’s 1st District Court of Appeal (Tallahassee and North Florida’s highest court) on the issue of double jeopardy violations in felon in-possession of a firearm/ammunition cases.

Important: Florida’s possession of a firearm by a convicted felon statute is an intriguing and broad law that has often been the subject of legal discussion. To learn more about it, click here.

The McQuay court reiterated that if a defendant is found to have possessed both an illegal gun and illegal ammunition, this can only support charging one Fla. Stat. 790.23 violation; not two (or more). If someone is convicted of multiple counts of felon in possession, they have the right to have all but one of the convictions reversed on double jeopardy grounds.

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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