Constructive Possession in Florida Gun Crime Cases

The term “gun possession” may seem like a pretty straightforward one. Florida’s Second District Court of Appeal recently explained, however, that there are many ways in which a person may be considered to “possess” a firearm. Even if the person isn’t actually holding the gun, he or she may be found to have constructive possession of it if the person knows about the weapon and has the power to exercise control over it.The defendant was convicted of a felony in 2006 for trying to float a bad check. Some eight years later, she was arrested and charged with possession of a firearm by a convicted felon. She argued that the guns in her home actually belonged to her recently deceased husband. She said she was hard up for cash after her husband passed away in 2014, and she decided to sell his guns to make ends meet while waiting for a life insurance policy to come through.

The defendant said she went with a friend to a pawn shop to sell the weapons. Although she gave the shop her fingerprints as part of the transaction, she said her friend handled the guns the entire time. A pawn shop employee working at the time could not remember the details of the transaction. The officer who arrested the defendant didn’t personally observe the transaction. At trial, the court sided with the defendant, finding that prosecutors failed to prove she actually “possessed” the weapons in the way the state legislature had in mind when it passed the law banning felons from having firearms. As a result, the court dismissed the charges against the defendant.

Reversing the decision on appeal, however, the Second District said the evidence was sufficient to show that the defendant constructively possessed the guns. That’s because it was clear that she knew the guns were present and had the ability to exercise control over them, according to the court.

The Second District noted in particular that the defendant admitted that she wanted to pawn the weapons and asked a friend to help her do so. That acknowledgement was “direct evidence of [her] knowledge of the guns, inasmuch as it would have been impossible for her to execute a plan to sell them without knowing about them, and are at a minimum circumstantial evidence of her ability to control them, inasmuch as a fair inference from the fact that she pawned them is that she had the ability to control them,” the court said. The court added that her admission that she “took the firearms and pawned them” could be interpreted as an admission of both knowledge and control.

The Second District sent the case back to the trial judge with instructions to reconsider the matter and continue proceedings.

If you or a loved one has been charged with a gun crime in Florida, it is essential that you seek the advice and counsel of an experienced attorney. Tampa gun crime lawyer Will Hanlon is a seasoned attorney who fights aggressively on behalf of clients charged with a wide range of offenses. Call our offices at (813) 228-7095 or contact us online to speak with Mr. Hanlon about your case.

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