Legal Possession of Firearms, Concealed Firearms and Firearm Possession by Felon

Do I need a license to carry a gun in Florida?:  What is considered a firearm?  Under F.S. 790.001(6), “Firearm” means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.

Under 790.053, it is illegal for any person to openly carry any firearm on his or her person.  However, it is not a violation of the law for a person licensed to carry a concealed firearm, who is lawfully carrying a firearm in a concealed manner, to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary of self-defense.  You can receive a second-degree misdemeanor that can come with a $500 fine or a maximum of 60 days in jail.  However, there is a winkie in the law under F.S. 790.25(3)(h), which states that it is lawful for the person to own, possess, and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes: ““engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition.” So if you have a fishing license, going on a fishing trip, aren’t intoxicated and haven’t been convicted of a felony, it is lawful to openly carry a gun while fishing in Florida. 

Possession of Concealed Firearm Defenses: If you are charged with Possession of a Concealed Firearm or Possession of a Concealed Weapon, all hope is not lost. Even if the state is able to tackle the first hurdle of proving the item in question to be a firearm or a weapon, we will take the matter to the next level by determining whether or not the defendant was in actual physical possession of the firearm or weapon and this defense concentrates on the defendant’s access to the weapon. Traffic violations are a common example of this defense. If a car is stopped for a moving infraction and the car is searched and a gun is found as a result, is the driver of the car guilty of Possession of a Concealed Firearm? The answer to this question is no because the gun must be easily and readily accessible to the driver in order for the state to charge the driver with possession. This defense is further supported by Section 790.019(2) of the Florida Statutes which clearly states that “a person who carries a concealed firearm on or about his person commits a felony of the third degree.” Clearly a firearm that is concealed in a car out of any immediate reach of the driver does not meet the burden of proof in this instance.  In the case of White v. State of Florida 902 So.2d 887, the first district appellate court upheld that although the defendant had previously been inside the vehicle where the firearm was found and admitted that the firearm was his, he was standing outside of the vehicle away from the firearm at the time that the searching officer recovered the weapon.   Therefore the prosecution failed to meet the burden of proof in this case that “[at] the time of his arrest,…the appellant’s firearm was not readily accessible to him[:]” and that “he carried a concealed firearm ‘on or about his person.”  and the defendant’s conviction was overturned.  

A similar case occurred in the matter of Lamb v. State 668 So.2d 666, appealed in the second district appellate court, wherein the defendant was taken into custody while standing outside of his parked car and when the car was later searched a firearm was discovered beneath the driver’s seat. The appellate court determined that there was insufficient evidence to support a conviction on the charge of carrying a concealed firearm due to the fact that the firearm was not accessible to the defendant at the time of his arrest. The court reasoned that there was no evidence that Mr. Lamb carried a concealed firearm on or about his person in this instance. Therefore the conviction was overturned. 

Overturning such convictions isn’t always so cut and dry. In the case of J.E.S v. State 931 So.2d 276 which was heard by the 5th district appellate court here in Orlando, the court upheld the conviction of the minor defendant in this case where the defendant was ordered out of a car and when the car was later searched a firearm was found concealed under the defendant’s seat. The court reasoned that the defendant, who was driving, was sitting in the vehicle when officers approached, whereas in the Lamb and White cases the defendants were outside of their vehicles for some time before officers found the weapons. These cases are prime examples of why if you find yourself facing these types of charges, you should call our office right away and let us work for you.

Can you conceal a firearm in your home?   As you can see, if a gun or weapon is not readily accessible, possession is a hard case to prove. What if a citizen is caught concealing a firearm in his or her own home? To answer this complex question, let’s turn to the case of Santiago v. State, 77 So.3d 874, which was heard in the fourth district appellate court. In the original trial, Mr. Santiago was arrested in his own home after selling cocaine to an undercover police officer. During the course of the sale, the defendant pulled a firearm from his pocket and displayed it. A few weeks following the arrest, the arresting officer returned to search the defendant’s home and located the same firearm that Mr. Santiago had concealed in his pocket at the time of his arrest. Among other charges, the defendant was convicted of carrying a concealed firearm, which is a third-degree felony. During the jury deliberations in Mr. Santiago’s original trial posed the question to the judge of whether “concealed” applies to a person in his own home. When the prosecution, as well as the defense attorney, opted not to answer the question in favor of having the judge reaffirm the jury instructions, the judge chose to answer the question and instructed the jury that concealed did apply and a person could not legally be in their own home with a concealed firearm in the presence of others.  The trial judge’s answer was clearly wrong. Due to the fact that the judge in the original hearing incorrectly instructed the jury, the Appellate Court overturned Mr. Santiago’s conviction. The court correctly deferred to Section 790.25 of the Florida Statutes that states that a person may lawfully possess firearms in his or her own home without the need for a concealed weapons permit. This is a protection that also applies to businesses, though only under certain circumstances.  

There have been cases where an officer makes a claim of a concealed weapon, when in fact the firearm is clearly visible. Is a gun concealed when it can be seen? Any dictionary will clearly define concealed as being placed out of sight, however, officers continue to allege concealed weapons in these cases.  An excellent example of such analysis can be found in the case of Donald v. State 344 So.2d 633, heard by the fourth district appellate court in 1977. The defendant in this case was ordered to stop walking by police as they conducted an investigation into a possible disorderly intoxication incident in which a drunk man had been firing shots. The defendant, Mr. Donald, complied with the officers’ request at which time an officer approached him from behind and proceeded to pat him down during which time the officer felt a pistol tucked into the front of Mr. Donald’s belt. The officer subsequently arrested Mr. Donald and charged him with possession of a concealed weapon, a charge of which he was ultimately convicted. The issue with this case is that the officer had approached the defendant from behind and the firearm was in the front of the defendant’s person. Therefore, there is no way that the arresting officer would have been able to see whether or not the defendant’s shirt actually concealed the weapon, which is required by the statute in order to support a charge of possessing a concealed weapon. The appeals court overturned the conviction, completely discharging Mr. Donald, noting that the officer at no time had a clear view of the defendant from the front, therefore he could not testify whether the gun was visible from the front. Rather the officer testified that the gun was protruding from the defendant’s pants without knowledge of whether the defendant’s clothing actually concealed the firearm. 

Concealed Firearm/Weapon within Vehicle: When considering the matter of a concealed firearm or weapon within a vehicle, can be also complex, because vehicles pose unique legal circumstances of their own in relation to the concealed firearms and weapons. Take, as an example, the case of O.S. v. State 120 So.3d 130, heard in the third district appellate court. In this case, the defendant was pulled over for a bad tag light.  The police officer did not immediately identify any weapons in the vehicle.  Then the defendant was asked by the officer to step out of his vehicle. When the defendant opened the door, the officer was able to identify a weapon on the defendant’s inside pocket of his car door, namely a set of brass knuckles.  The court held that the “weapon” did not definition of concealed, because 1) the brass knuckles was not covered by another object; 2) the defendant admitted that the weapon was there, 3) the officer immediately recognized the weapon and 4) the defendant did not attempt to hide the weapon.   When an officer is immediately able to recognize the object as a weapon, then the court may find that it was not concealed as a matter of law as it was not hidden from ordinary observation. 

Possession of a Firearm by Convicted Felon:  A charge of possession of a firearm by a convicted felon is a serious matter because this charge carries a minimum three-year mandatory prison sentence. However, though this looks on the surface to be an open and shut type of conviction, it may be rather difficult to prove. In the case of Mason v. State 853 So.2d 544, the appellate court overturned this conviction because the State had failed to produce any evidence that the defendant was the subject of the felony conviction, e.fingerprints, and any other identifying information.  In order to be convicted of this charge, the Defendant must be in physical possession of the firearm. Therefore if the firearm is determined to have been in joint possession, the minimum mandatory sentence would not apply. 

Double Jeopardy and Preclusion of Multiple Counts of Gun Possession Charges:  In cases where a convicted felon is found to be in possession of multiple firearms, the state will often bring a charge for each firearm found, which results in an issue of multiplicity and the additional charges should be thrown out. This is exactly what happened in the case of Davis v. State 96 So.3d 1116, heard in the first district appellate court, wherein the defendant, a convicted felon, was found to own four firearms., Mr. Davis was convicted on four charges of possession of a firearm by a convicted felon. Davis then appealed the convictions, arguing that the three additional charges when his guns should have been considered as one-possession violated his Fifth Amendment protection against double jeopardy and the state was only allowed to issue one conviction on the criminal act. The appellate court ruled in favor of Mr. Davis, overturning three of the four convictions, and remanding the case back to the lower court with the order that the defendant is properly resentenced based only on the one conviction. 

DNA and Firearm Possession:  

Law Enforcement often relies on DNA evidence in firearm cases in order to match the firearm with the convicted felon. As you may suspect, this doesn’t necessarily always work out for a person who has been convicted of a felony. When a defendant’s DNA may be found on a firearm, without seeing the weapon in the defendant’s hand at the time of the arrest, it is impossible to know when the defendant handled the firearm. This issue was handled by the second district appellate court in the case of Miller v. State 107 So.3d 498. In this case, the defendant was convicted of possession of a firearm by a convicted felon when a gun was found in an apartment that he shared with his sister. Since the gun was found in a shared apartment and the firearm was found under his sister’s mattress, a case of constructive possession was found and therefore the mandatory minimum did not apply.   The appellate court understood this and threw out Miller’s conviction on the grounds that although the State presented DNA that established that Miller had at some point touched the weapon, the prosecution presented absolutely no evidence that he knew the gun was under his sister’s mattress, nor that he had the means or ability to have control of the weapon at the time of his arrest. 

Antique Firearms: Some guns are so old that they are no longer legally considered to be firearms under Florida law, although they may still be fully functioning. The exception to such firearms is known as the antique firearms exception to the legal definition of a firearm, thus such firearms may be legally possessed by an individual who has been convicted of a felony. 

If you or a loved one have been charged with possession of a concealed firearm without a license or possession of a firearm by a convicted felon, call our office today for a free consultation.


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Young B. Kim

Young B. Kim is a criminal defense attorney in Apopka, Florida. He has a degree in political science from the University of Central Florida; A master's degree in political science at Albert-Ludwigs-Universitaet (This is a university in Freiburg, Germany), all before graduating with a Juris Doctor from Florida A&M University College of Law. Mr. Young Kim uses his knowledge and passion to protect local businesses, falsely accused, and the elderly.

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