Florida prosecutes firearm offenses hard, and several of them carry a mandatory minimum prison term under Florida Statute 775.087. If you have been charged, talk to a criminal defense attorney before you talk to anyone else. Whether this is a first gun charge or you have a prior record, a charge can sometimes be reduced or dropped, depending on how the gun was found, who owned it, and what you were doing at the time.
A firearm conviction in Florida can mean fines, a mandatory minimum prison term, and the permanent loss of the right to own a gun under Florida Statute 790.23. The defenses that actually move a gun case are specific: justified use of force under Florida Statute 776.012, a motion to suppress when the search was unlawful, or an attack on whether the state can prove you knew the firearm was there. A criminal defense lawyer can tell you which of those fits the facts of your arrest.
Keep reading for what Florida law actually says about buying, carrying and discharging a firearm, which defenses apply to which charge, how bail is set, and what a conviction costs you.
Understanding Florida's Gun Laws
Florida has specific regulations surrounding the ownership, purchase, and carrying of firearms that residents and visitors must understand and adhere to. These regulations are split into two main categories: firearm regulations and offenses, and concealed weapon licensing and penalties.
Firearm Regulations and Offenses
Florida has several rules and restrictions governing the use and ownership of firearms. Below is a list of some key aspects:
- Age to buy: Florida Statute 790.065(13) bars anyone under 21 from purchasing a firearm and bars a licensed dealer from making or facilitating that sale. Law enforcement officers, correctional officers and servicemembers are excepted for rifles and shotguns.
- Background checks: a licensed dealer must run the records check required by Florida Statute 790.065 on every sale. A private sale between two Florida residents is not covered by that section, whether it happens at a gun show or in a parking lot. A licensed dealer selling at a gun show still has to run the check.
- Waiting period: Florida Statute 790.0655 imposes 3 days between purchase and delivery, excluding weekends and legal holidays, or until the records check finishes, whichever comes later. It applies to any firearm, not only handguns. Subsection (2) exempts concealed weapon license holders, trade-ins, and certain rifle and shotgun buyers holding a hunter safety certification.
- Possession bans: Florida Statute 790.23 makes it unlawful for a convicted felon to own or possess a firearm or ammunition, and Florida Statute 790.233 bars possession by anyone under a final injunction against domestic violence, stalking or cyberstalking.
Various firearm offenses can result in misdemeanor or felony charges in Florida, depending on the severity of the offense. These offenses include:
- Unlawful discharge: knowingly firing a gun in a public place, or over the right-of-way of a paved public road, or over occupied premises, is a first-degree misdemeanor under Florida Statute 790.15(1). Firing from a vehicle within 1,000 feet of a person is a second-degree felony under Florida Statute 790.15(2).
- Carrying concealed: since July 1, 2023, Florida Statute 790.01(1) lets a person carry a concealed weapon or firearm with no license at all, as long as that person meets the criteria for a license under Florida Statute 790.06. Carrying without a license is no longer an offense on its own.
A person who does not meet those criteria and carries anyway is still exposed. If someone barred under Florida Statute 790.23 or Florida Statute 790.233 is found with a firearm, the state can charge that possession on its own, separate from whatever else was happening at the time.
Concealed Weapon Licensing and Penalties
Florida no longer requires a license to carry a concealed weapon or firearm. Florida Statute 790.01(1), effective July 1, 2023, authorizes concealed carry by anyone who either holds a license under Florida Statute 790.06 or is unlicensed but meets the criteria for one. A license is still worth having, because it exempts the holder from the Florida Statute 790.0655 waiting period and is recognized in a number of other states. To qualify for a license under Florida Statute 790.06(2) you must:
- Must be at least 21 years old.
- Proof of completion of an approved firearms training course.
- No disqualifying criminal convictions.
- Must pass a background check.
Out-of-state applicants can also apply for a Florida concealed carry permit by following similar guidelines.
The rules that still carry a penalty are about where you carry, not whether you hold a license. Florida Statute 790.06(12)(a) lists 15 places a license does not authorize you to carry, among them a courthouse, a polling place, a school or career center, a detention facility, and the portion of a bar devoted to serving alcohol. Knowingly and willfully carrying into one of them is a second-degree misdemeanor under Florida Statute 790.06(12)(d).
When facing a gun charge in Florida, consult an experienced attorney who is familiar with Florida's firearm laws and can advise on the best course of action to have the charge dismissed or reduced.
Legal Defenses Against Gun Charges
In Florida, there are several legal defenses that can be used by a skilled defense attorney to fight against gun charges. This section will discuss three main defenses: self-defense and stand your ground, insufficient evidence and illegal search and seizure, and lack of probable cause and wrongful identification.
Self-Defense and Stand Your Ground
Self-defense is a common legal defense raised by those accused of gun charges. Florida Statute 776.012(2) says a person may use or threaten deadly force, with no duty to retreat, if he or she reasonably believes it is necessary to prevent imminent death or great bodily harm, or to prevent the imminent commission of a forcible felony. Two conditions attach: the person must not be engaged in criminal activity, and must be somewhere he or she has a right to be. Florida Statute 776.032 goes further and grants immunity from prosecution. Once the defense raises a prima facie claim of that immunity at a pretrial hearing, Florida Statute 776.032(4) puts the burden on the state to overcome it by clear and convincing evidence.
Insufficient Evidence and Illegal Search and Seizure
Another possible defense against gun charges is that there is insufficient evidence to prove the accused possessed or used a firearm illegally. This can include lack of witnesses, inconclusive forensic evidence, or situations where the evidence was obtained through an illegal search and seizure. An experienced lawyer can challenge the prosecution's evidence and argue that the firearm was found during an illegal search or that the officers did not have valid probable cause for the search. If the court agrees, the evidence may be thrown out, leading to a dismissal or reduction of the charges.
Lack of Probable Cause and Wrongful Identification
A skilled defense attorney may argue that the arrest was made without proper probable cause, meaning that the officers did not have sufficient reason to believe that the accused had committed a crime. This could result in the dismissal of the gun charges if the court finds that the arrest was unlawful. Additionally, the attorney can contest the validity of the accusation if there was a case of mistaken identity or wrongful identification by witnesses or law enforcement. By challenging the accuracy of identification methods and presenting alternative evidence that supports their client's innocence, the lawyer may be able to get the charges dismissed or reduced.
The Role of a Criminal Defense Attorney
In a Florida gun case most of the work happens before trial. A defense attorney reads the arrest report against the statute charged, files motions to suppress evidence the police had no lawful basis to seize, and tests whether the state can prove possession at all. That pretrial record is what a prosecutor looks at when deciding whether to reduce or drop a charge.
What A Defense Attorney Looks For First
A defense attorney will begin the process by examining the case thoroughly to identify any potential grounds for dismissal. Some of the common defenses for gun charges include:
- Evidence found in an unlawful search or seizure can be suppressed, so if the police had no proper legal grounds the state may lose the gun itself.
- An arrest made without probable cause can be challenged, and charges resting on it can be dismissed.
- Self-defense can answer the charge if the defendant used the weapon against an imminent threat.
- Mistaken identity, usually from an incorrect identification, can end the case in a dismissal.
By identifying these potential defenses and presenting them to the court, the defense attorney can challenge the prosecution's evidence and weaken their case.
Negotiation and Plea Bargains
Apart from legal defenses, a defense attorney also offers valuable legal services, such as negotiation and plea bargain strategies. These services can be beneficial in reducing or dismissing charges:
Negotiation: A skilled attorney will negotiate with the prosecutor to question the strength of the case. Through negotiation, they can potentially convince the prosecutor to reduce the charges, dismiss them, or offer a favorable plea deal.
Plea bargains: In some cases, a plea bargain can be the best option for a defendant. The defense attorney can negotiate a plea agreement that benefits the defendant by reducing the charges or advocating for lighter penalties.
A defense attorney handles the filings, the hearings and the conversations with the prosecutor so you are not doing that yourself. What it produces varies with the facts and the charge, and no attorney can tell you in advance how a case will end.
Diversion Programs and Alternative Sentencing
Diversion programs and alternative sentencing offer those facing gun charges in Florida an opportunity to avoid or reduce their sentence and potentially avoid a criminal conviction. These programs may include probation, community service, counseling, and other requirements but can often lead to the dismissal or reduction of charges.
Eligibility for Diversion
To be eligible for a diversion program, the accused must typically be a first-time offender or have a limited criminal history. The offense must be nonviolent and may involve firearms-related charges such as unlawful possession, carrying a concealed weapon without a permit, or an ineligible person in possession of a firearm, among others. Each program and jurisdiction may have its own specific eligibility criteria, which may consider factors like the individual's level of cooperation, willingness to participate, and any extenuating circumstances surrounding the offense.
Impact on Criminal Records
Successful completion of a diversion program can lead to dismissal of charges or a reduction in sentencing. In some cases, this may allow the individual to avoid a formal criminal conviction on their record. Participation in a program may still appear on a person's criminal history, marked to show that the charges were dismissed or reduced.
Some diversion programs may also offer the opportunity for expungement, which can remove the record of the arrest and participation in the program from the individual's criminal history, making it inaccessible to the public. In other cases, the individual may need to complete a separate expungement process in order to remove the record entirely.
Overall, diversion programs and alternative sentencing can provide individuals facing gun charges in Florida with a valuable opportunity to avoid or lessen the negative consequences of a criminal conviction. By fulfilling the requirements of these programs, individuals have the chance to rehabilitate and reintegrate themselves into the community while showing a commitment to addressing their mistakes and bettering their lives.
How Much Is Bail for Gun Possession?
The Eighth Amendment and Article I, Section 14 of the Florida Constitution both bar excessive bail. Florida Statute 903.046(1) sets the purpose of a bail determination: to make sure you appear at later proceedings and to protect the community from unreasonable danger. The amount is not supposed to exceed what those two purposes require.
However, the amount of bail a judge sets will depend on a variety of factors. Such factors include whether you are facing misdemeanor or felony charges, whether you are facing a 1st-time gun charge or are a repeat offender, whether your charge is a violation of probation, and whether or not you used the gun while committing another crime such as burglary or assault.
The more severe your charges are, the higher you should expect bail to be. The courts may also hold you without bail, meaning that you will remain in jail until your trial begins. Additionally, a judge may release you on your own recognizance until trial, meaning that you will not have to pay a thing for release.
Bail is set at first appearance, not at arraignment. Florida Rule of Criminal Procedure 3.130(a) requires that every arrested person who has not already been released be taken before a judge, in person or by audio-video, within 24 hours of arrest. Arraignment, where you enter a plea, comes later.
Bonds
If you do not have enough money to pay your bail for a gun charge in Florida, you may contact a bondsman. A bondsman will charge a fee that is a percentage of the bail amount and post the rest under the condition that you appear at your next court date.
The courts may also provide you with the option of a property bond, which is where you post the title to your house or assets to cover cash you do not have available. If you do not appear at your next court date, you may forfeit the right to the title of your home.
Probation for a Gun Charge in Florida
Many individuals worry that they are sure to face jail time after receiving a gun charge in Florida. However, this is not always the case. Particularly if it is a 1st-time gun charge, and you have an otherwise clean record. Additionally, if you receive charges for a non-violent gun crime, your chances of receiving probation instead of jail time are even better.
However, you need an experienced lawyer to fight for you. An attorney who will work tirelessly to build your defense case and show the courts why you should not be imprisoned. Having character witnesses, being gainfully employed, and having responsibilities within the community can significantly help your case. A lawyer will know how to present these things to the courts in the most effective way to increase your chances of receiving probation.
Misdemeanor Gun Charges vs. Felony Gun Charges
Another misconception that many individuals have is that all gun charges in Florida are felony charges. In fact, some are misdemeanors. While this may not spare you from having a criminal record, it will make your future much easier. For this reason, if you are facing charges for a felony gun charge in Florida, you must hire an attorney. It may be possible to have your charges reduced.
Being a convicted felon will follow you around for the rest of your life, making it challenging to find employment and housing. Additionally, you may lose your right to own or carry a firearm in the future as a result of a conviction.
A misdemeanor conviction carries less weight. You may serve no jail time at all. Firearm rights are a separate question: Florida Statute 790.23 attaches to felony convictions, but a federal statute, 18 U.S.C. 922(g)(9), bars firearm possession after a misdemeanor conviction for domestic violence. A misdemeanor is not automatically safe on that point.
How Much Jail Time Can You Get for a Gun Charge?
How much jail time you will face for a gun charge depends on many of the same scenarios as what your bail will be. Whether it is a 1st-time gun charge, a repeat offense, a misdemeanor, or a felony charge are all taken into account by the courts. Sentencing is at the discretion of the judge, so you must have an aggressive lawyer to fight your case.
Whenever you are charged with a crime, felony or misdemeanor, probation and incarceration are both on the table, and there are ways to resolve a case without either. Where a firearm is involved, Florida Statute 775.087(2)(a) sets mandatory minimums for the felonies it lists: 10 years for actually possessing the firearm during the offense, 20 years for discharging it, and 25 years to life if the discharge caused death or great bodily harm. Those are floors a judge cannot sentence below, which is why the offense you are convicted of matters more in a gun case than almost anything else. That is also true when the gun charge accompanies another violent crime.
Hiring an Attorney
If you are facing gun charges in Florida, you need an experienced criminal lawyer, whether it is a misdemeanor or a felony. Contact Weinstein Legal Team today to start a free case review with an attorney.
