Possession of a Firearm by a Convicted Felon: Can I Be Charged in Jacksonville if My Spouse Owns the Gun?

November 3, 2009
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According to Florida Statute Section 790.23, a person that has previously been convicted of a felony cannot possess a firearm. Under Section Section 10.15 of the Florida Standard Jury Instructions, the state must prove that the convicted felon had in his care, custody, possession, or control a firearm, electric weapon/device, or ammunition.

Whether or not a convicted felon can be charged with Jacksonville Possession of a Firearm by a convicted felon that his or her spouse owns will depend on the definitions of "care, custody, possession or control." " 'Care' and 'custody' mean immediate charge and control exercised by a person over the named object." The term "possession" is defined as the ability "to have personal charge of or exercise the right of ownership, management, or control over an object."

Under Florida Law, a Jacksonville convicted felon can actually or constructively possess a firearm. Actual possession occurs when the firearm is on the convicted felon's person or so close that it is readily within his or her reach. Just because the firearm is very close to the convicted felon, there is no actual possession of the firearm if he or she is not in a position to exercise control over it. A convicted felon is in constructive possession if the firearm is located in a place that the felon has concealed the firearm or a place that the felon has control over.

In many Jacksonville Possession of a Firearm by a Convicted Felon cases, a felon is arrested for possessing his or her spouse's firearm. In most of those cases, the spouse keeps the firearm in a non-secure location in the house. This location is normally a place that the felon has access to it. Thus, the felon is arrested and charge. However, a Jacksonville Gun Crimes Attorney can defend this case based upon the fact that the felon may not have been aware that the firearm was located within the house.

Additionally, if the spouse keeps the firearm in a secure location in which the felon does not have access to it and could never gain access to it, the convicted felon would not have any ability to control the firearm and could not be in possession of it. For example, a woman owns a firearm and keeps it in a locked safe. The safe is bolted down to the floor in a room in her house that is kept locked. Her husband is a convicted felon. He does not know the combination to the gun safe and does not have a key to the room. Thus, it would be absurd to believe that he is in constructive possession of the gun. On the other hand, if the gun is kept in a box in the couple's bedroom closet that both people share, the state would have a better argument that the Jacksonville convicted felon was in possession of the firearm.

I am in no way stating that storing a firearm in the manner provided above will resolve a Jacksonville convicted felon from criminal liability. However, it would create a better defense. Therefore, his Jacksonville Criminal Defense Attorney would have a better chance at getting the charges dropped or winning the case at trial.