Felon in Possession of a Firearm in Florida: Penalties, Constructive Possession, and Defenses

In Florida, a person who has been convicted of a felony, and who has not had their firearm rights restored, commits a crime by owning, possessing, or having in their care, custody, or control any firearm, ammunition, or electric weapon or device. Under Section 790.23, Florida Statutes, the offense is a second-degree felony, punishable by up to 15 years in prison. If the State proves the person actually possessed a firearm, Section 775.087 (the “10-20-Life” statute) adds a 3-year minimum mandatory prison sentence that a judge generally cannot go below. The law reaches ammunition as well as guns, it applies to some out-of-state and federal convictions, and it can apply to someone who never touched the weapon. The same facts can also be charged federally under 18 U.S.C. § 922(g)(1). This article explains who is covered, how the penalties work, how “possession” is proven, and where these cases are actually contested.

This is general information, not legal advice. Whether § 790.23 applies to a particular person depends on the exact prior record and the exact facts of the arrest.

Who is covered by § 790.23

The statute applies to people with a qualifying “status,” and the felon label is only the most common one. In summary, subsection (1) covers a person who has been:

• Convicted of a felony in a Florida court.
• Found to have committed a delinquent act that would be a felony if committed by an adult, if the person is under 24 years of age.
• Convicted of an offense in federal court, another state, or another country that is punishable by imprisonment for more than one year, or that would be a felony in Florida.
• In some circumstances, subject to a qualifying injunction or other status listed in the statute.

The prohibition covers owning, possessing, or having a firearm, ammunition, or an electric weapon or device in your care, custody, possession, or control. It also covers carrying a concealed weapon. The statute carves out people whose civil rights and firearm authority have been restored. See the full text of the statute for the complete list of covered statuses and exceptions.

Florida’s 2023 change allowing most adults to carry a concealed firearm without a license (Section 790.01) does not help someone who falls under § 790.23. That law removed the license requirement for people who are otherwise legally allowed to have a firearm. It did not shrink the list of people who are prohibited from having one.

Penalties: three layers that stack

A felon-in-possession charge usually involves up to three separate sources of punishment, and the second one is what makes these cases so hard to resolve.

Layer	Source	What it does
Base offense	§ 790.23(3)	Second-degree felony: up to 15 years in prison and up to a $10,000 fine under §§ 775.082 and 775.083
Minimum mandatory	§ 775.087 (“10-20-Life”)	3-year minimum mandatory prison term when the person actually possessed a firearm. A higher minimum can apply if the person has certain qualifying prior felonies involving actual possession of a firearm
Sentencing enhancements	§§ 775.084, 874.04, scoresheet	Habitual offender or violent career criminal status, or gang-related enhancement (a first-degree felony under § 790.23(4)), can raise the exposure further

The minimum mandatory is the part that surprises people. In most third-degree felony cases a judge can sentence to probation or a short jail term. A mandatory minimum removes that discretion for the covered portion of the sentence. The State decides whether to seek it, and what the State is willing to do about it is often the central point in plea negotiations. See Florida’s Criminal Punishment Code Sentencing Scoresheet for how the base sentence is calculated and why a judge’s range is narrower than the statutory maximum suggests.

Possession of ammunition alone does not involve a firearm, so the firearm-based minimum mandatory is generally not the issue in an ammunition-only case. The base second-degree felony still is. Whether the minimum mandatory attaches in a given case turns on the exact charging language, so this is a point to review closely.

Actual versus constructive possession

Most felon-in-possession cases are not about a gun in someone’s hand. The State can prove possession in two ways.

	Actual possession	Constructive possession
What it means	The firearm is in the person’s hand, on the person, in a container held by the person, or within ready reach and under the person’s control	The person knows the firearm is there and has the ability to exercise control over it, though it is not on the person
Typical facts	Gun in a waistband or pocket, held during a stop	Gun in a glove box, under a seat, in a bedroom, or in a shared home
What the State must show	Possession and knowledge of the item	Knowledge of the firearm’s presence, plus dominion and control over it
3-year minimum mandatory	Generally applies	Often disputed; depends on charging and proof of actual possession

Constructive possession is where many of these cases are won or lost. When the location is jointly occupied, such as a shared car or a shared home, Florida courts have long held that knowledge and control cannot simply be inferred from the person’s presence. The State needs independent proof, such as admissions, fingerprints or DNA on the item, the item’s position in plain view, or other evidence tying the person specifically to it. A passenger in a car with a gun under the seat, or a resident of a household where another adult keeps a firearm, is the classic example of a charge that depends on that independent proof.

What counts as a prior “conviction”

For many people, the first question is whether an old case counts at all. The answer depends on how the prior case ended.

• Adjudication of guilt on a felony counts. This is the clear case.
• Withhold of adjudication is less clear and needs a careful, current legal read. Florida’s courts have addressed when a person is treated as “convicted” for firearm purposes, including while serving probation after a withhold. Because the answer can turn on timing and on which court decides, do not assume a withhold removes the prohibition. See Withhold of Adjudication in Florida for how a withhold works generally.
• Out-of-state and federal convictions can count if the offense is punishable by more than a year or would be a felony in Florida.
• Misdemeanors do not trigger § 790.23, but certain misdemeanor domestic violence convictions can trigger a separate federal firearm prohibition. See Criminal Charges and Domestic Violence in Florida.
• Dismissed or dropped charges do not count. See Dismissed Charges and Your Criminal Record.

The prior record also affects the minimum mandatory and sentencing enhancements, so an accurate certified copy of every prior judgment is one of the first things a defense lawyer pulls.

Restoring firearm rights

A felony conviction in Florida costs a person their civil rights, and getting some of them back does not automatically restore the right to have a firearm. Voting rights are restored through a separate process. Firearm authority requires clemency from Florida’s executive clemency board, a process run through the Florida Commission on Offender Review and the Office of Executive Clemency. A restoration order that does not expressly include firearm authority leaves the § 790.23 prohibition in place. Anyone who is unsure should confirm the exact wording of the restoration order before handling a firearm.

Federal exposure: 18 U.S.C. § 922(g)(1)

Federal law separately prohibits anyone convicted of a crime punishable by more than one year in prison from possessing a firearm or ammunition that has moved in interstate commerce (18 U.S.C. § 922(g)(1)). The maximum penalty is generally 15 years under 18 U.S.C. § 924(a)(8), and federal enhancements apply to defendants with certain prior convictions. State and federal prosecutors can both have jurisdiction over the same facts, and a case that starts in a Florida county court can be adopted federally. See What Are Federal Criminal Charges in Florida for how that process works.

Constitutional challenges to the federal statute have been litigated since the Supreme Court’s Second Amendment decisions in recent years. The law in this area is still developing, and a challenge should not be treated as a basis for assuming a charge will be dropped.

Where these cases are contested

Defense work in a felon-in-possession case usually concentrates on a few areas:

• The stop and search. Most cases begin with a traffic stop, a pat-down, or a search of a car or home. A motion to suppress a firearm found in an unlawful search can end the case, because the gun is the case.
• Knowledge and control. In constructive possession cases, whether the State can tie the person to the item rather than the place.
• The prior record. Whether the prior case is a qualifying conviction, whether rights were restored, and whether the State can prove the prior with proper records.
• Whether the item is a firearm. The State must show an object that meets the statutory definition of a firearm in Section 790.001, and that it is what the State says it is.
• The minimum mandatory. Whether the charging document and the proof support actual possession, and whether a negotiated resolution can avoid it.
• How the jury hears the prior. Florida courts have recognized procedures that can keep the nature of the prior felony from the jury, including stipulating to felon status. Which procedure fits depends on the case.

Pretrial release is also a real issue. A firearm charge on top of a prior record tends to bring a higher bond or conditions, and the Florida bail and bond process works differently when the person is already on probation. If the arrest happened while the person was on probation or community control, a separate violation of probation case can run alongside the new charge.

Immigration consequences for noncitizens

A firearms offense is its own ground of deportability under 8 U.S.C. § 1227(a)(2)(C), which covers certain firearm offenses. Whether a Florida felon-in-possession conviction fits that ground depends on the elements of the statute of conviction, so it should be analyzed before any plea. See Criminal Charges and Immigration Status in Florida and Aggravated Felonies Under Immigration Law for the framework.

What this means for your case

A felon-in-possession charge is a second-degree felony with a mandatory prison floor in many cases, and it rests on three things the State must prove: a qualifying prior status, possession of a firearm or ammunition, and knowledge. Each of those can be contested. The prior may not qualify, the search may have been unlawful, or the State may not be able to connect a person to something found in a shared car or home. What a person says at the scene often matters more than anything that happens later. If you or a family member has been arrested for possessing a firearm or ammunition with a prior record in Broward County or elsewhere in South Florida, speak with a lawyer before giving any statement or making any decision about a plea. MK Law’s partners are trial attorneys who defend weapons cases across South Florida. Contact us or call 954.865.6032, available 24/7.

Frequently asked questions

Is felon in possession of a firearm a felony in Florida?

Yes. Under § 790.23 it is a second-degree felony, punishable by up to 15 years in prison and a $10,000 fine. If the person actually possessed a firearm, the 3-year minimum mandatory under § 775.087 generally applies on top of that exposure. A gang-related enhancement can raise the offense to a first-degree felony.

Can I be charged if the gun belongs to someone else?

Yes, if the State can show you knew the gun was there and had the ability to control it. This is constructive possession. In a shared car or home, the State needs more than your presence, such as admissions, fingerprints or DNA, or evidence the gun was in plain view or tied specifically to you.

Does ammunition alone count?

Yes. Section 790.23 covers ammunition and electric weapons as well as firearms. An ammunition-only charge is still a second-degree felony, although the firearm-based minimum mandatory is generally a separate question.

Does a withhold of adjudication mean I can own a gun?

Not necessarily. Whether a withhold counts as a “conviction” for firearm purposes depends on the specific statute and the timing, and courts have treated it differently in different settings. Do not rely on a withhold alone. Have a lawyer review the prior case before handling a firearm.

How do I get my gun rights back in Florida?

Restoring civil rights generally, including voting rights, does not by itself restore firearm authority. Firearm authority requires specific executive clemency, and the order has to expressly include it. Confirm the language of the restoration order itself.

Can I be charged in both state and federal court?

Yes. State and federal law both prohibit felons from possessing firearms and ammunition, and the same incident can be prosecuted under either, or in some cases both. Which system takes the case depends on the facts and on charging decisions by prosecutors in each.

This article provides general information and is not legal advice. Legal outcomes depend on the specific facts, applicable law, and current procedures. Reading this article or contacting MK Law does not by itself create an attorney-client relationship.