Felon in Possession of Firearm — Florida

A prior felony conviction follows you in ways that most people do not fully understand until they are sitting in a jail cell facing a second-degree felony charge. In Florida, if you have any felony conviction — regardless of how old it is, regardless of whether it was in another state, regardless of whether it was for a non-violent offense — possessing a firearm is a second-degree felony with up to 15 years in prison. Florida’s felon-in-possession law (§ 790.23) is one of the most aggressively charged firearms statutes in the state. I have defended these cases in Polk County, and the constitutional issues surrounding the search, the constructive possession theory, and the validity of the prior conviction all matter enormously in how these cases are won or resolved favorably.

Legally reviewed by Tonmiel Rodriguez, Board Certified Criminal Trial Lawyer — last reviewed June 2026.

What Does Florida § 790.23 Prohibit?

Florida § 790.23(1) makes it unlawful for any person who has been convicted of a felony — in Florida or any other state — to own or have in care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon.

The statute covers:

• Any person convicted of a felony in Florida
• Any person convicted of a felony in another U.S. state
• Any person convicted of a crime in another country that would be a felony in Florida
• Any person found guilty of delinquency for an act that would be a felony if committed by an adult (in some circumstances)

Violation is a second-degree felony, punishable by up to 15 years in prison and a $10,000 fine. There is no mandatory minimum sentence under § 790.23 itself, but if the firearm possession occurs during a qualifying felony, the 10-20-Life mandatory minimums under § 775.087 may apply and produce a much higher sentencing floor.

What Are the Penalties for Felon in Possession of a Firearm in Florida?

Charge	Degree	Max Prison	Max Fine	Federal Parallel
Felon in possession of firearm (§ 790.23)	2nd Degree Felony	15 years	$10,000	18 U.S.C. § 922(g)(1) — up to 10 years federal

The federal parallel is significant and should not be overlooked. 18 U.S.C. § 922(g)(1) makes it a federal crime for any person convicted of a felony punishable by imprisonment for more than one year to possess a firearm or ammunition. Federal prosecutors in the Middle District of Florida sometimes charge these cases when the conduct involves interstate commerce or when a state prosecution is deemed insufficient for the conduct alleged. Federal mandatory minimums under the Armed Career Criminal Act (ACCA) can dramatically increase exposure for defendants with three or more prior violent felony or serious drug offense convictions. When both state and federal charges are possible, strategic considerations about which forum to fight in matter.

How Does the State Prove the Prior Conviction Element?

The State must prove the prior felony conviction as an element of the offense beyond a reasonable doubt. I examine every prior conviction in my client’s record for possible challenges:

Vacated or expunged convictions. A felony conviction that has been vacated, reversed, or set aside — or for which civil rights have been restored under the law of the state of conviction — may not qualify as a predicate felony under § 790.23. I examine the status of every prior conviction and obtain the relevant court records to determine whether the conviction remains valid as a legal predicate.

Withhold of adjudication. Under Florida law, a withhold of adjudication is not a conviction for most purposes — including § 790.23. If a client’s prior disposition was a withhold of adjudication rather than a conviction, they were not “convicted” of a felony and the predicate element of § 790.23 is not met. This is a frequently overlooked but critical distinction that changes the entire charge from a second-degree felony to not a crime at all.

Out-of-state convictions. A conviction from another state must be for conduct that would be a felony in Florida. If the prior conviction was for a misdemeanor equivalent, or for conduct that Florida does not criminalize as a felony, it may not satisfy the predicate under § 790.23. I research every out-of-state prior to confirm its Florida equivalent and whether it qualifies as the predicate the State claims.

What Is Constructive Possession and Why Does It Matter in These Cases?

Many § 790.23 cases are based on constructive possession — the firearm was found in a car, a home, or a shared space, not physically on the defendant’s person. To prove constructive possession, the State must show:

1. The defendant knew the firearm was present
2. The defendant had dominion and control over the firearm

Both elements must be proven beyond a reasonable doubt. When a firearm is found in a shared vehicle or residence with multiple occupants, the State faces a significantly harder path: they must affirmatively connect the defendant to the specific weapon, not just to the space where it was found. Proximity alone is legally insufficient. I use occupancy records, DNA and fingerprint evidence (or the absence of it), surveillance footage, and witness testimony to challenge constructive possession theories. In cases where the weapon clearly belonged to someone else who was also present, the State often cannot carry its burden on constructive possession beyond a reasonable doubt.

What Fourth Amendment Issues Arise in Felon in Possession Cases?

The Fourth Amendment protection against unreasonable searches and seizures applies fully in felon-in-possession cases. The weapon must be admissible evidence for the charge to survive. If the weapon was discovered through an unconstitutional search or seizure, suppression removes it from the case entirely. The most common suppression arguments in these cases are:

• Unlawful traffic stop: A stop conducted without reasonable articulable suspicion of a traffic violation or criminal activity is unconstitutional. Evidence discovered during an unlawful stop — including any firearm found on the person or in the vehicle — is suppressible under the exclusionary rule.
• Unlawful pat-down: A Terry frisk requires specific, articulable facts that the person is armed and presently dangerous. A frisk based on vague suspicion, high-crime area presence, or an officer’s general unease does not satisfy the constitutional standard.
• Unlawful vehicle search: A vehicle search requires either valid consent, probable cause, a recognized exception such as search incident to arrest, or a search warrant. Searches premised on insufficient grounds produce suppressible evidence.
• Unlawful residential search: A search warrant is required to search a residence absent exigent circumstances or valid consent. Firearms found during warrantless home searches are subject to suppression.

Suppression of the weapon in a felon-in-possession case eliminates the State’s ability to prove the possession element. I file suppression motions in every case where the facts support a constitutional challenge to how the weapon was found.

How Can Firearm Rights Be Restored After a Florida Felony?

In Florida, a person convicted of a felony loses the right to possess firearms. Rights can potentially be restored through:

• Florida Executive Clemency: The Florida Clemency Board — chaired by the Governor — can grant a full pardon or specific authority to own and possess firearms. This is a lengthy administrative process requiring a waiting period after sentence completion, a clean record since conviction, and substantial supporting documentation. Approval is not guaranteed and applications are decided on a case-by-case basis with no automatic entitlement.
• Vacating the conviction: If the underlying felony conviction is successfully vacated or reversed — through post-conviction relief, ineffective assistance of counsel claims, newly discovered evidence, or other grounds — the firearm disability disappears along with the conviction itself.
• Federal relief: 18 U.S.C. § 925(c) theoretically provides a federal application process for firearms rights restoration, but Congress has defunded the ATF’s processing of those applications for decades. Federal firearms relief is effectively unavailable as a practical matter.

What Is the 10-20-Life Connection to Felon in Possession Cases?

While § 790.23 itself does not carry a mandatory minimum, the 10-20-Life sentencing enhancement under § 775.087 applies when the felon-in-possession charge is paired with another qualifying felony offense. If a defendant is charged with both felon in possession and robbery, aggravated assault, burglary, or another enumerated offense from § 775.087(2)(a), and a firearm was present during the qualifying felony, the mandatory minimum of at least 10 years applies. The practical consequence is that a defendant facing both charges must evaluate the firearm element in both the § 790.23 count and any qualifying felony count simultaneously, because winning the firearm element in either context eliminates the mandatory minimum.

The three-year mandatory minimum reference historically associated with felon-in-possession charges comes from the pre-2016 version of Florida’s mandatory minimum scheme. Under current Florida law, the mandatory minimums for felon-in-possession cases arise from § 775.087 when a qualifying felony accompanies the charge, not from a separate standalone provision within § 790.23 itself.

What Other Charges Are Related to Felon in Possession Cases?

• Carrying Concealed Weapon — § 790.01
• 10-20-Life Firearm Sentencing — § 775.087
• Weapons & Firearms Defense Overview

Frequently Asked Questions About Felon in Possession of a Firearm in Florida

Does a withhold of adjudication make me a convicted felon under § 790.23?

No. Under Florida law, a withhold of adjudication is not a conviction. If your prior felony charge resulted in a withhold — not a conviction — you are not prohibited from possessing firearms under § 790.23 on the basis of that prior case. This is one of the most important distinctions in Florida criminal law and is frequently misunderstood by defendants, law enforcement, and even prosecutors who overlook the difference between a withheld adjudication and an adjudication of guilt.

Can I get my gun rights back after a felony conviction in Florida?

Possibly through Florida Executive Clemency. The Clemency Board can grant specific authority to own and possess firearms, but the process is lengthy, the outcome is uncertain, and there is no guaranteed timeline. The application requires a waiting period after sentence completion, a clean record since the conviction, and detailed supporting documentation demonstrating rehabilitation. I advise clients on whether their circumstances support a clemency application and what the realistic prospects are.

What if I didn’t know the gun was in the car?

Knowledge is an element the State must prove beyond a reasonable doubt. If you genuinely did not know the firearm was in the vehicle — and if the circumstances support that claim — the prosecution has to overcome reasonable doubt about your knowledge. This is particularly significant in shared vehicles or when the weapon belongs to someone else who was also present in the car. The claim is fact-dependent and requires careful development of the evidence, but it is a real and recognized defense when the facts support it.

Does a felony from another state count under § 790.23?

Yes, but the prior out-of-state conviction must be for conduct that would be a felony in Florida. If the prior conviction was from another state for an offense that is only a misdemeanor equivalent in Florida, or for conduct that Florida does not criminalize as a felony, it may not satisfy the predicate under § 790.23. I check the Florida equivalent of every out-of-state prior, which is a frequently overlooked challenge.

Can a felon in possession charge be dismissed if the search was illegal?

Yes. If the firearm was found during an unconstitutional stop, frisk, or search, a motion to suppress can exclude it from evidence. Without the firearm in evidence, the State cannot prove possession and the charge cannot proceed. Fourth Amendment suppression is one of the most effective tools in felon-in-possession defense, and it is the first issue I evaluate in every case before considering any other approach.

Is felon in possession of a firearm a federal crime as well as a state crime?

Yes. 18 U.S.C. § 922(g)(1) makes it a federal offense for any person convicted of a felony punishable by more than one year to possess a firearm or ammunition. Federal prosecutors in the Middle District of Florida can charge this offense independently of the state charge. Federal sentences for § 922(g)(1) can be substantially higher than state sentences when the defendant qualifies as an Armed Career Criminal under the ACCA. Understanding the federal dimension of these cases is part of a complete defense analysis.

Can a felon in possession charge result in the 10-20-Life mandatory minimum?

The § 790.23 charge itself does not carry a mandatory minimum sentence under current Florida law. However, when felon-in-possession is charged alongside a qualifying felony under § 775.087(2)(a) — such as robbery, aggravated assault, or burglary — and a firearm was present during that qualifying felony, the 10-20-Life mandatory minimums apply. The mandatory minimum is triggered by the combination of the qualifying felony and the firearm, not by § 790.23 standing alone.