In the state of Florida, it is illegal for a convicted felon to have a firearm or ammunition in their care, custody, possession or control. Florida Statutes Section 790.23 adds that a person also is prohibited from owning a firearm or ammunition if they have committed a delinquent act that would be a felony if committed by an adult and the individual is under 24 years of age.
Further, an individual cannot possess a firearm or ammunition if they were found guilty of an offense in another state, territory or country that was punishable by imprisonment for a term exceeding one year. This Florida law does not apply to a person whose civil rights and firearm authority have been restored or to a person whose criminal record has been expunged.
Penalties for Possession of a Firearm
An individual who violates the statute that prohibits them from owning a firearm and ammunition commits a second-degree felony. The punishment for a second-degree felony is up to 15 years in prison. If the individual who possesses the firearm has previously qualified or currently qualifies for penalty enhancements, the offense is a first-degree felony, punishable by a term of years not exceeding life.
Clemency and Firearm Possession
A person with a felony conviction may seek clemency to get their right to own a firearm and ammunition restored. Clemency includes a full pardon, which unconditionally releases a person from punishment and forgives guilt for any Florida convictions. It restores all of the rights of citizenship the applicant had before their conviction, including the right to own, possess or use firearms. There is also a pardon without firearm authority. This pardon entitles an applicant to all of the rights of citizenship they had before conviction, except the specific authority to own, possess or use firearms.
A commutation of sentence may adjust an applicant’s penalty to be less severe, but it does not restore any civil rights, including the authority to own, possess or use firearms. A restoration of civil rights restores all of the applicant’s civil rights except the authority to own, possess or use firearms. A pardon that grants the specific authority to own, possess or use firearms restores this right to an applicant, but not any other rights.
Clemency for Convictions in Other Jurisdictions
The clemency board states that due to federal firearms laws, it will not consider requests for firearm authority from individuals convicted in federal or out-of-state courts. To comply with the federal laws, a presidential pardon or relief of disabilities from the federal Bureau of Alcohol, Tobacco and Firearms must be issued in cases involving federal court convictions.
A pardon or restoration of civil rights with no restrictions on firearms must be issued by the state where the conviction occurred. Generally, there is a waiting period of eight years to own a firearm from the date the sentence expired or the supervision, like probation or parole, has been terminated.
What Is Constructive Possession?
Constructive possession is defined as possession of contraband, such as a firearm, without a person physically holding or carrying the object. A person who has knowledge and control over a firearm will be determined to have constructive possession of the gun. For example, if four people are in a vehicle, and a gun is sitting in a beverage holder in the middle of the vehicle, all four people could be in constructive possession of the gun.
However, if the gun was in a closed space, like the glove compartment, a prosecutor would have difficulty proving that anyone in the vehicle was in constructive possession of the gun unless there was evidence to show that the parties had knowledge of the presence of the gun.
Ineligible for Concealed Carry Permit
A convicted felon is not eligible to get a concealed weapons permit in Florida unless the individual’s civil and firearm rights have been restored by the convicting authority. An individual is not eligible for a concealed weapons permit in Florida if they have a conviction for a misdemeanor crime of violence in the last three years.
Further, an individual is not eligible for a concealed weapons permit if they have:
- A conviction for a violation of controlled substance laws or multiple arrests for such offenses.
- A record of drug or alcohol abuse.
- Two or more DUI convictions within the last three years.
- Been committed to a mental institution or been adjudged incompetent or mentally defective.
- A dishonorable discharge from the armed forces.
- Been issued a domestic violence injunction or an injunction against repeat violence that is currently in force.
Seal and Expunge Process
The sealing and expungement process takes time. The processing time to determine eligibility alone is usually 12 weeks from the date that the Florida Department of Law Enforcement (FDLE) receives a completed application packet. An applicant's record is not expunged until a certified court order has been received by FDLE from the court of proper jurisdiction. A convicted felon should ensure, in writing, that their record has been expunged if they want to use, possess or own a firearm.
How an Attorney Can Help
A criminal defense attorney can help a convicted felon in Florida assess their situation to determine what actions are necessary to request a restoration of firearm authority. The attorney should look at the client’s entire criminal record, as well as their juvenile record, from Florida and other jurisdictions.
The attorney also should review the client’s interactions with law enforcement officers. This will help them to know whether police officers or sheriff’s deputies may offer testimony that reveals the client should not have a firearm in their possession.
Firearm Can’t Be for Hunting
A convicted felon cannot own a firearm solely for the purpose of hunting. A properly licensed convicted felon can hunt with bows, crossbows and airguns where such devices are legal. A hunter who is on probation should consult with their probation officer before hunting.
A convicted felon may be able to hunt with an antique firearm. An antique firearm is a firearm manufactured in or before 1918, or with a replica of such a gun. Another type of antique firearm is one that uses fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the U.S. and is not readily available in the ordinary channels of commercial trade.
Constructive Possession of Firearms
The Florida Fish and Wildlife Conservation Commission advises that a convicted felon who is hunting with individuals who have guns may be in danger of being found to be in constructive possession of other hunters’ firearms. For example, if a firearm is in an open space that is accessible and visible to the convicted felon, the felon faces a concern. If the firearm is concealed from or made inaccessible to the felon, the felon is less at risk.
A convicted felon who is hunting with a group could avoid concerns by hunting with others who are using only other weapons, such as bows and arrows. In addition, the other hunters could secure their firearms in gun cases with locks to which the felon does not have the keys.
- Florida Commission on Offender Review: Clemency Overview
- 2021 Florida Statutes: Section 790.23 Felons and Delinquents; Possession of Firearms, Ammunition, or Electric Weapons or Devices Unlawful
- 2021 Florida Statutes: Section 775.082 Penalties; Applicability of Sentencing Structures; Mandatory Minimum Sentences for Certain Reoffenders Previously Released From Prison
- Florida Department of Agriculture and Consumer Services: Eligibility Requirements for a Florida Concealed Weapon License
- Florida Fish and Wildlife Conservation Commission: Hunting With a Felony Conviction
- 2021 Florida Statutes: Section 790.001, Definitions
- Florida Department of Law Enforcement: Seal and Expunge Process
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.