What is the penalty for a convicted felon found with a gun in Florida?

Section 790.23, Florida Statutes, makes it unlawful for a person with certain felony records "to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device." It is one of the most common firearm charges in South Florida courts, and it often comes with a minimum prison term. This page explains who the law covers, how the sentence is set, and what can change the result. Mr. Mead's work on firearm cases is described on our firearms violations page. His other practice areas are listed on the criminal defense page.

Who is covered by the law?

Section 790.23(1) applies to a person who has been:

• convicted of a felony in the courts of Florida;
• found, in a Florida court, to have committed a delinquent act that would be a felony for an adult, while the person is under 24;
• convicted of or found to have committed a federal felony;
• found to have committed such a delinquent act in another state, territory or country, punishable by more than 1 year, while under 24; or
• found guilty of a felony in another state, territory or country punishable by more than 1 year.

The law does not apply to a person "convicted of a felony whose civil rights and firearm authority have been restored," or to a person whose record was expunged under the juvenile expunction statute, section 943.0515(1)(b) (s. 790.23(2)).

How does a case move, step by step?

1. The stop or search. Many cases start with a traffic stop, a search of a home or car, or a call for service, where a gun or ammunition is found.
2. The record check. Officers check whether the person has a qualifying felony record. That record is an element the State must prove.
3. Arrest and first appearance. The person sees a judge within 24 hours (Fla. R. Crim. P. 3.130). In Palm Beach County that happens at the complex described in the Palm Beach County jail and first appearance.
4. Bond. Release conditions are set under the general rules explained in how bond works in Florida.
5. The charge. The State Attorney files the felony, often alongside other charges from the same incident, and decides whether to allege actual possession for the minimum mandatory term.
6. Pretrial. Discovery, motions about the stop or search, and questions about possession and the prior record are where most of the case is decided.
7. Sentencing. On a conviction, the court applies the minimum mandatory term, if proved, and the Criminal Punishment Code scoresheet.

What sentence does it carry?

When a minimum term applies, "adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld," and the defendant is not eligible for gain-time or discretionary early release, other than pardon, executive clemency or conditional medical release, before serving the minimum (s. 775.087(2)(b)). If the minimum is longer than the range the code would otherwise allow, the minimum must be imposed (s. 775.087(2)(c)).

How is the rest of the sentence scored?

The basic offense is ranked at level 5 on the offense severity chart, which scores 28 points as a primary offense (ss. 921.0022, 921.0024). Prior record, other offenses and legal status are added. The worksheet's separate 18 firearm points apply to felonies "other than those enumerated in s. 775.087(2)," and possession of a firearm by a felon is on that list. The full method is on our page about how a felony sentence is calculated in Florida.

What changes the answer?

• Actual possession. The 3-year minimum applies when the person "actually possessed" a firearm or destructive device. A gun found in a shared car or home, rather than on the person, raises different questions of proof.
• The prior record. The statute covers specific kinds of prior cases, with age limits for juvenile adjudications. Whether a past case counts depends on how it ended and where. A record that was only sealed, or a case in which adjudication was withheld, should be checked carefully; withholds are explained on our page about withhold of adjudication in Florida.
• Restoration of rights. The exception requires both civil rights and firearm authority to have been restored (s. 790.23(2)(a)).
• The item. The law covers firearms, ammunition and electric weapons or devices, and concealed carrying of tear gas guns or chemical weapons; it is broader than guns alone.
• Other charges in the same case. Using a weapon during another felony can reclassify that felony to a higher degree, unless use of a weapon is already an element (s. 775.087(1)). Carrying charges for people without a felony record are covered in is carrying a concealed gun without a license still a crime.
• Supervision at the time. A person on felony probation who is found with a firearm can face a violation of probation as well as the new charge, and being on supervision adds legal status points to the scoresheet. Violations are discussed on our probation violation page.
• Sealed or expunged records. The statute's exception names only a juvenile record expunged under section 943.0515(1)(b). What sealing and expunction do for adult records is explained on our records sealing and expungement page.
• Domestic violence injunctions. A person under a final domestic violence or stalking injunction may not possess firearms or ammunition either, but that is a first-degree misdemeanor under a different statute (s. 790.233). How that ban works is explained in whether an injunction means giving up your guns.

A worked example

For example, a hypothetical man with a 10-year-old Florida felony conviction for grand theft, and no restoration of civil rights or firearm authority, is stopped in Broward County. A handgun is found in a closed console of the car he is driving, which belongs to his sister. Because his record is a Florida felony conviction, section 790.23(1)(a) covers him, and the charge is a second-degree felony. Whether the State can prove he "actually possessed" the handgun, which would trigger the 3-year minimum, is a central question, since the gun was not on his person and the car is not his. Grand theft is not among the felonies listed in section 775.084(1)(b)1., such as robbery, aggravated battery or armed burglary, so the 10-year minimum would not apply. The scenario is invented and predicts nothing about any real case.

Common mistakes people make

• Assuming an old conviction no longer counts; the statute has no time limit for adult felony convictions.
• Believing a restoration of civil rights alone restores gun rights; the statute requires firearm authority too.
• Keeping ammunition at home without a gun, which the statute also covers.
• Explaining to officers whose gun it is, or where it came from, before speaking to a lawyer.
• Ignoring the search itself; how the gun was found often matters as much as the record.

What to do this week

1. Gather the paperwork from the prior case: the judgment, the sentence and any order restoring rights.
2. Write down exactly where the firearm was found and who had access to that place.
3. Do not discuss the case with anyone except your lawyer, including family members who own the gun.
4. Ask your lawyer to review the stop or search and whether actual possession can be proved.
5. Make sure every bond condition, including any order to surrender other firearms, is followed.

Frequently asked questions

Does a withheld adjudication on a felony count as a conviction for this law?

Section 790.23(1)(a) covers a person "convicted of a felony in the courts of this state." Whether a particular earlier case counts as a conviction is a legal question to review with a lawyer, along with the separate concealed weapon license rule that treats a felony withhold as disqualifying for 3 years after probation ends (s. 790.06(2)(k)).

Is ammunition alone enough for a charge?

Yes. The statute lists "any firearm, ammunition, or electric weapon or device."

Can the 3-year minimum be waived by the judge?

Section 775.087(2)(b) says the minimum provisions do not authorize a lesser sentence than required by law and bar withholding adjudication. When actual possession is proved, the minimum applies.

Does a juvenile record count?

A Florida juvenile finding of a delinquent act that would be a felony for an adult counts while the person is under 24, unless the record was expunged under section 943.0515(1)(b) (s. 790.23(1)(b), (2)(b)).

Can I get my gun rights back?

The statute's exception requires restoration of both civil rights and firearm authority (s. 790.23(2)(a)). That is a clemency process, separate from the criminal case.

Can I get a concealed weapon license after a felony?

No, not while section 790.23 applies. The licensing statute requires that the applicant not be ineligible to possess a firearm under section 790.23 "by virtue of having been convicted of a felony" (s. 790.06(2)(d)).

How can Mr. Mead help?

A felon-in-possession case turns on two records: the old one and the new one. Mr. Mead reviews whether the prior case qualifies, whether rights were restored, how the firearm was found, and whether actual possession can be proved. Every case is different, and no outcome can be promised. For a confidential conversation, call (561) 362-6677, 24 hours a day.

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