Call us now:
Felon in Possession of a Firearm in Florida: What Counts as Possession?
The gun does not necessarily have to be in someone’s hand or pocket for Florida prosecutors to file a felony firearm charge.
Cases frequently turn on whether the State can prove actual or constructive possession.
“The gun wasn’t mine—and it wasn’t on me. Can I still be charged?”
Yes, potentially.
Florida law prohibits certain convicted felons from owning or having a firearm, ammunition, or certain other weapons in their care, custody, possession, or control.
But the State does not always need to prove that the firearm was physically in the defendant’s hand, pocket, or waistband.
A prosecution can also be based upon constructive possession—and that is where cases involving cars, shared homes, bedrooms, backpacks, center consoles, and multiple occupants can become much more complicated.
Florida’s Felon-in-Possession Law
Florida Statute § 790.23 makes it unlawful for certain persons with qualifying felony convictions or delinquency adjudications to own or have in their care, custody, possession, or control:
- a firearm;
- ammunition;
- an electric weapon or device; or
- certain concealed weapons identified by the statute.
The statute also applies to qualifying felony convictions from Florida, federal court, and other states or jurisdictions.
Florida Authority
- Florida Statute § 790.23 — Felons and possession of firearms or ammunition
- Florida Statute § 775.087 — Firearm mandatory minimum provisions
- Florida Standard Jury Instructions — Possession and firearm offenses
Is Possession of a Firearm by a Convicted Felon a Felony?
Yes.
Under the current version of § 790.23, a standard violation is generally a second-degree felony.
Second-Degree Felony Exposure
A second-degree felony can generally expose a defendant to:
- up to 15 years in Florida State Prison;
- up to 15 years of probation; and
- a fine of up to $10,000.
Separate sentencing enhancements or habitual-offender provisions may increase the potential exposure in some cases.
Actual Possession vs. Constructive Possession
One of the most important questions in a felon-in-possession case is how the State claims the firearm was possessed.
Actual Possession
Actual possession generally involves a firearm being on the person or sufficiently close and under the person’s control under the applicable legal definition.
Constructive Possession
Constructive possession can apply even when the firearm is not physically on the defendant. The State generally must prove knowledge of the firearm and the ability to exercise dominion and control over it.
Being near a firearm is not always the same thing as legally possessing it.
What If the Gun Is Found in a Car With Several People?
Jointly occupied vehicles are one of the most common constructive-possession scenarios.
A firearm may be discovered:
- under a seat;
- inside a center console;
- in a glove compartment;
- inside a backpack or bag;
- between a seat and console;
- in the rear passenger area; or
- inside the trunk.
When multiple people occupy the vehicle, proximity alone may not establish constructive possession.
The State may need additional evidence showing that the defendant knew the firearm was present and had the ability to exercise control over it.
Evidence prosecutors may rely upon includes:
- statements acknowledging the firearm;
- fingerprints or DNA;
- ownership or possession of the bag or container;
- text messages or photographs;
- where the firearm was located;
- exclusive access to the area;
- conduct during the police stop; and
- other circumstantial evidence connecting the defendant to the gun.
A Recent Florida Case: Firearm Between the Driver’s Seat and Console
In Hamilton v. State, decided by Florida’s Second District Court of Appeal in September 2026, police found a firearm wedged between the driver’s seat and the center console of a vehicle driven by the defendant.
The appellate court held that the evidence was sufficient to allow the conviction for possession of a firearm by a convicted felon to stand.
But the case also illustrates an important distinction between proving the underlying firearm offense and proving the separate mandatory-minimum sentencing enhancement.
Constructive possession may support the conviction, but that does not automatically establish the firearm mandatory minimum.
The Second District reversed the three-year mandatory minimum because the statutory requirements for actual possession under § 775.087 were not established, even though the firearm was close to the driver’s seat.
What If the Firearm Is Found in a Shared House or Apartment?
The same constructive-possession principles can arise when police find a firearm inside a shared residence.
Important questions can include:
- Who lived in the home?
- Who used the particular bedroom?
- Was the firearm in a common area?
- Was it inside a locked container?
- Who owned the container?
- Did other residents have equal access?
- Were documents or personal items linking the defendant to the firearm nearby?
- Did anyone make statements about ownership?
A firearm found in a shared home does not automatically establish that every person in the residence possessed it.
What If the Gun Belongs to a Spouse, Roommate, or Passenger?
Ownership and possession are related concepts, but they are not identical.
A person can potentially possess a firearm that legally belongs to someone else.
Conversely, the mere fact that another person owns a firearm does not necessarily establish that the defendant possessed it.
The defense may need to examine:
- where the firearm was stored;
- who had access to the location;
- whether the defendant knew the firearm was present;
- whether the defendant had authority or ability to exercise control over it; and
- whether there is independent evidence connecting the defendant to the firearm.
Does the State Have to Prove Knowledge of the Firearm?
Knowledge is ordinarily a central part of a constructive-possession theory.
A defendant may be physically close to a firearm without knowing that it is present.
That issue can arise when the gun is:
- hidden beneath a seat;
- inside another person’s bag;
- inside a closed container;
- stored in a shared room;
- placed in a borrowed vehicle; or
- left behind by another person.
The State may attempt to establish knowledge through statements, fingerprints, DNA, photographs, messages, behavior, or other circumstantial evidence.
Can a Convicted Felon Be Charged for Possessing Ammunition Alone?
Yes.
Section 790.23 expressly prohibits qualifying persons from possessing ammunition, not merely firearms.
A firearm does not necessarily have to be recovered for § 790.23 to apply.
A case can potentially be based upon the alleged possession of ammunition alone.
Does Felon in Possession Carry a 3-Year Mandatory Minimum?
Sometimes—but not simply because the defendant is convicted under § 790.23.
Florida Statute § 775.087 provides a three-year mandatory minimum in qualifying felon-in-possession cases involving actual possession of a firearm or destructive device.
The distinction between actual and constructive possession therefore becomes extremely important at sentencing.
Conviction vs. Mandatory Minimum
Underlying conviction:
Constructive possession can be sufficient.
3-year mandatory minimum:
The State must satisfy the separate statutory actual-possession requirement, and the required jury finding must be established.
2026 Case Update — Hamilton v. State
In Hamilton, the firearm was wedged between the driver’s seat and console. The court upheld the felon-in-possession conviction but reversed the three-year mandatory minimum because the evidence did not establish that the firearm was carried on the defendant’s person or within immediate physical reach with ready access and the intent to use it during the offense.
That distinction can be critical when reviewing the verdict form, jury instructions, and sentencing exposure.
What Prior Convictions Can Trigger Florida’s Firearm Prohibition?
Section 790.23 can apply to more than Florida felony convictions.
The statute includes qualifying convictions from:
- Florida state courts;
- federal courts;
- other states;
- territories; and
- certain foreign jurisdictions.
It also contains provisions concerning certain juvenile delinquency adjudications for persons under age 24.
Whether a prior out-of-state offense qualifies can require careful review of the judgment, sentencing law, and underlying statute.
What If My Civil Rights Were Restored?
Florida’s statute contains an exception for a person whose civil rights and firearm authority have been restored.
Restoration of general civil rights is not necessarily the same thing as restoration of firearm authority.
A defendant should not assume that voting rights, completion of probation, passage of time, or another form of rights restoration automatically restores the right to possess a firearm.
What If Police Found the Gun During an Illegal Search?
A separate issue is whether police lawfully discovered the firearm in the first place.
Firearm-possession cases commonly arise from:
- traffic stops;
- vehicle searches;
- consent searches;
- search warrants;
- probation searches;
- home entries;
- protective sweeps; and
- searches incident to arrest.
If the firearm or ammunition was obtained through an unconstitutional search or seizure, the defense may consider whether a motion to suppress is appropriate.
Possession and search-and-seizure are separate questions.
Even if the State claims it can prove possession, the court may still need to determine whether police lawfully obtained the firearm, ammunition, statements, or other evidence.
What Evidence Matters Most in a Felon-in-Possession Case?
Fingerprints and DNA
Forensic evidence may be used to connect a defendant to a firearm, magazine, ammunition, container, or related object.
Statements to Police
Admissions about ownership, knowledge, storage, or prior handling of the firearm can become important evidence of constructive possession.
Text Messages and Photographs
Digital evidence may be used to argue that the defendant knew about, possessed, purchased, displayed, or exercised control over a firearm.
Body-Camera and Dash-Camera Video
Police video may document where the firearm was located, who occupied the vehicle, statements made at the scene, and the circumstances of the search.
Ownership and Access Evidence
Vehicle ownership, room occupancy, keys, containers, personal belongings, and exclusive or joint access may become important to the constructive-possession analysis.
Possible Defenses to Possession of a Firearm by a Convicted Felon
1. No Possession
The firearm belonged to someone else and the State cannot prove that the defendant actually or constructively possessed it.
2. No Knowledge
The defendant did not know the firearm or ammunition was present.
3. No Dominion or Control
The firearm was in a jointly occupied location and the State lacks independent evidence that the defendant had the ability to exercise control over it.
4. Illegal Search or Seizure
Police may have obtained the firearm, ammunition, or related evidence through an unconstitutional stop or search.
5. Prior Conviction Does Not Qualify
The prior offense or disposition may not satisfy the statutory requirements of § 790.23.
6. Rights or Firearm Authority Restored
The defendant may fall within a statutory exception if the required civil rights and firearm authority were legally restored.
Related Legal Resources
Continue Your Research
Firearm-possession cases often overlap with constructive-possession law, vehicle searches, search warrants, suppression motions, and other serious felony investigations.
Possession Law
Constructive Possession in Florida
Learn how Florida courts analyze knowledge, dominion, control, joint occupancy, and circumstantial evidence in constructive-possession cases.
Vehicle Searches
Can Police Search Your Car in Florida?
Review when police may search a vehicle and how unlawful searches can affect firearm, drug, and other felony charges.
Fourth Amendment
Florida Search and Seizure Law
Explore warrants, probable cause, reasonable suspicion, vehicle searches, consent searches, and other constitutional issues.
Evidence Challenges
Motions to Suppress Evidence
Learn how unlawfully obtained firearms, statements, digital evidence, or other evidence may be challenged before trial.
Existing Firearm Resource
Possession of a Firearm by a Convicted Felon
Review Landsman Law’s firearm-defense information concerning possession charges and related Florida weapons laws.
Felon-in-Possession Charges in Gainesville and Alachua County
Firearm-possession cases in Gainesville may arise from investigations involving:
- Gainesville Police Department;
- Alachua County Sheriff’s Office;
- University of Florida Police Department;
- Florida Highway Patrol;
- Florida Department of Law Enforcement;
- traffic stops;
- vehicle searches;
- search warrants;
- drug investigations; and
- other felony investigations.
A defense may require evaluating both whether the State can prove possession and whether police lawfully obtained the firearm or ammunition.
Landsman Law represents clients facing serious felony firearm charges in Gainesville, Alachua County, and throughout North Central Florida.
Why Choose Landsman Law?
Felon-in-possession cases often involve more than simply proving that police found a firearm somewhere nearby.
The defense may need to examine possession, knowledge, control, vehicle occupancy, search-and-seizure issues, DNA or fingerprint evidence, statements, digital evidence, prior convictions, rights restoration, and sentencing enhancements.
Matt Landsman is a Board Certified Criminal Trial Lawyer with more than 20 years of criminal defense experience.
Landsman Law represents clients facing serious felony charges in Gainesville, Alachua County, and throughout North Central Florida.
Charged With Possession of a Firearm by a Convicted Felon?
A firearm-possession charge can carry substantial prison exposure and may involve mandatory sentencing issues.
The defense should examine where the firearm was found, who had access to it, whether the defendant knew it was present, whether the State can prove dominion and control, whether police conducted a lawful search, and whether any mandatory-minimum enhancement actually applies.
Frequently Asked Questions
Can a convicted felon be charged if the gun was not on them?
Yes. Florida allows a prosecution based on constructive possession when the State can prove the required knowledge and control over the firearm.
What if the gun belonged to someone else?
Ownership does not automatically determine possession. The State must still establish the required connection between the defendant and the firearm.
What if several people were in the car?
Joint occupancy can make constructive possession more difficult to prove. Proximity alone may not be enough without additional evidence of knowledge and control.
Can ammunition alone support a charge?
Yes. Florida Statute § 790.23 expressly includes ammunition.
Does every felon-in-possession conviction carry a 3-year mandatory minimum?
No. The mandatory minimum under § 775.087 depends on the separate statutory actual-possession requirements and the required jury finding.
Can an illegal search lead to dismissal of the firearm evidence?
Potentially. If police obtained the firearm through an unconstitutional search or seizure, the defense may seek suppression of the evidence.
What if my civil rights were restored?
Section 790.23 contains an exception when the person’s civil rights and firearm authority have been restored. General restoration of civil rights does not necessarily mean firearm authority was restored.
Can the case be dismissed if the gun belonged to a passenger?
Potentially, if the State cannot prove actual or constructive possession by the defendant. The specific evidence concerning knowledge, access, control, statements, and location of the firearm matters.
This article provides general information about Florida criminal law and is not legal advice for any individual case. Firearm-possession prosecutions are highly fact specific, and the applicable defenses, sentencing exposure, mandatory minimums, search-and-seizure issues, and rights-restoration questions depend upon the circumstances of the case.