When is a Firearm Constructively Possessed by a Convicted Felon?

August 28, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

In Florida, possession of a firearm by a convicted felon is unlawful under Fla. Stat. Section 790.23. That statute also prohibits someone convicted of a felony from having ammunition, or electric weapons or devices (such as tasers) in their care, custody, or control.

The penalties for possession of a firearm by a convicted felon are very serious. 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 fine. 

Note: Courts have held that separate charges and convictions for the discovery of multiple firearms violate a defendant’s protection against double jeopardy. Even if the State discovers more than one firearm during a search, they are limited to one charge. Owens v. State, 681 So. 2d 1194 (Fla. 2d. DCA 1996).

If a felon is found in actual possession of the firearm, this carries a 3-year mandatory minimum prison sentence. A specific jury finding of actual possession of the firearm is required before this mandatory minimum can be imposed. Swain v. State, 226 So. 3d 1002 (Fla. 1st DCA 2017).

There are two ways someone may be found to be in possession of a firearm: actually or constructively. Actual possession occurs when a defendant has physical possession of the unlawful firearm (either in their hands, in a container that was in their hands, or within their “ready reach”). Sundin v. State, 27 So.3d 675, 676 (Fla. 2d DCA 2009).

On the other hand, a theory of constructive possession can serve as the basis for a felon in possession charge if the firearm is found in a location where one or more other people may have had knowledge or control of the firearm – such as in a shared home, vehicle, or storage unit.

For constructive possession of a firearm by a convicted felon to be established, all of the following must be true:

• The defendant knew the firearm was within their presence
• The defendant had the ability to maintain control over the firearm
• The defendant knew of the firearm’s illicit nature (Cusamano v. State, 298 So.3d 1266 (Fla. 2d. DCA 2020))

Put simply, constructive possession can be found even if someone does not have a firearm on their person or within their reach. However, if the State proceeds on a theory of constructive possession, they must provide additional evidence other than mere proximity to the firearm that the defendant had knowledge and the ability to control it. Brown v. State, 428 So. 2d 250 (Fla. 1983)

Constructive possession can be inferred by a jury when evidence shows that the firearm was in plain view or the defendant otherwise knew of its presence and had the ability to control it. Birch v. State, 248 So.3d 1213 (Fla. 1st DCA 2018). For example, in cases where a firearm is in a place over which the defendant has control or where evidence indicates they concealed it, constructive possession may be established. Swain v. State, 226 So.3d 1002 (Fla. 1st DCA 2017)

However, the State cannot base their entire case on a mere hypothesis that someone charged with felon in possession stored the firearm in a particular location without evidence. It must be proven beyond a reasonable doubt that someone had not just knowledge of the firearm, but the ability to control it. 

An unsubstantiated inference that the defendant “could have” potentially placed a firearm somewhere is insufficient. Miller v. State, 107 So.3d 498 (Fla. 2d. DCA 2013) In Miller, a firearm was discovered in a home where Miller (a felon) lived. 

Miller was ultimately arrested and convicted of possession by a convicted felon on a theory of constructive possession. The gun was found hidden between a mattress and a box spring in a bedroom occupied by the victim’s sister. 

The State presented DNA evidence indicating Miller had previously touched the firearm which to the jury, was key to establishing his knowledge and ability to control the firearm. But the 2nd DCA reversed Miller’s conviction, arguing that the DNA evidence did not prove Miller knew about and had the ability to control the firearm at the time he was arrested – only that he had touched it at some point.

Another case in which a court found insufficient evidence of constructive possession was Thompson v. State. Thompson v. State, 911 So. 2d 1252 (Fla. 4th DCA 2005). There, the court found there was no direct evidence establishing Thompson’s actual possession or knowledge of a firearm’s existence.

Thompson, a convicted felon, was charged after a firearm was found underneath his wheelchair seat at a nightclub. However, the wheelchair was assembled by nightclub staff, and Thompson was incapable of reaching the firearm while seated in the wheelchair because he was paralyzed. Because of these facts, the court reversed Thompson’s conviction, as “mere proximity” was all that was established.

In other cases, courts have affirmed jury findings of constructive possession on the basis that the jury could have reasonably concluded the defendant had knowledge of and ability to control the firearm. Barlatier v. State, 26 So. 3d 29 (Fla. 3d. DCA 2009).

In Barlatier, the appellant had a gun in plain view on the floor near his seat in a vehicle (driver’s side). When he went to step out of the vehicle, he made a swiping motion to knock the firearm under the seat, so as to conceal it from the view of officers. 

The court affirmed Barlatier’s conviction. It held that even though there were other passengers in the car (requiring the State to prove more than mere proximity), the placement of his gun and his actions indicated that he knew about the gun and had the ability to control it.

It is clear that when evaluating whether an alleged felon in possession under Fla. Stat. Section 790.23 can be convicted on a theory of constructive possession, courts evaluate the totality of the circumstances. 

The fact that a firearm in plain view or within the defendant’s reach can be used as evidence to support the argument that a defendant constructively possessed the gun. Bott v. State, 307 So.3d 26 (Fla. 4th DCA 2020)

However, the key is not just establishing a defendant’s knowledge of the firearm’s presence, but their ability to control it. If a jury can reasonably conclude based on the facts provided that both knowledge and ability to control existed, someone may be convicted of felon in possession. 

But if the State provides no evidence other than proximity (especially if the gun is concealed and not on the defendant’s person), this is insufficient as a matter of law. Brown v. State, 428 So. 2d 250 (Fla. 1983)

In cases where constructive possession of a firearm by a convicted felon is being alleged, some defenses may include:

• Lack of knowledge of the firearm
• Lack of dominion or control (DNA is not dispositive, per Miller)
• Mere proximity
• No forensic evidence
• Illegal search/seizure or other procedural challenges (such as motions to suppress post-Miranda statements)

In sum, a convicted felon may be found guilty of constructive firearm possession only if the State proves beyond a reasonable doubt that they had knowledge of a firearm’s presence and the ability to control it. This is the case regardless of if it is the defendant’s firearm or another person’s (friend, relative, etc.).

This determination is made based on the totality of the circumstances. Evidence such as a firearm being in plain view, immediately reachable, or in a place only the defendant can access can serve as evidence. However, the State cannot argue “mere proximity” alone, as a felon simply being close to a firearm is not unlawful if they do not have knowledge and ability to control it.

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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