Arrestable Offenses / Crimes under Fla. Stat. 790.23
S790.23 4 - POSSESSION OF WEAPON - OR AMMO BY GANG-RELATED FELON OR DELINQUENT - F: F
S790.23 1c - POSSESSION OF WEAPON - OR AMMO BY CONVICTED UNITED STATES FELON - F: S
S790.23 1d - POSSESSION OF WEAPON - OR AMMO BY OTHER STATE DELINQUENT ADULT FELONY - F: S
CopyCited 145 times | Published | Court of Appeals for the Eleventh Circuit
...s that are not placed on mere
misdemeanor offenders. Included among the disabilities are withdrawal of voting rights, Fla. Stat. Ann §
40.013; the
right to run for political office, Fla. Const. 6 § 4; the right to possess a firearm, Fla. Stat. Ann §
790.23; the right to
be a firefighter, Fla....
CopyCited 112 times | Published | Supreme Court of Florida | 1989 WL 34342
...[a disruption of governmental commerce.] Although the wording of the Section
790.161, Florida Statutes, may be ambiguous, the committee believes that "governmental" modifies only "operations" and not "commerce." 9. Pages 111 and 112 provide instructions for Sections
790.221 and
790.23, Florida Statutes, respectively....
...The committee proposes the addition of a definition of "possess" to those instructions. The definition proposed is the same as the one used in the drug possession instructions. Exhibit 3 provides the full instructions with the definition of "possess" added. Paragraph 2 of the instruction on Section 790.23 also is amended to conform to the statute....
...If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. FELONS POSSESSING WEAPONS F.S. 790.23 Before you can find the defendant guilty of (crime charged), the State must prove the following two elements beyond a reasonable doubt: Elements 1....
...ns to None Attempt minors under 18 years of age, etc.
790.17 Selling arms to minors None Attempt by dealers
790.18 Felons; possession of None Attempt (may be applicable firearms unlawful; when concealed weapon is exception; penalty charged)
790.23 *1236 Carrying concealed firearm
790.01(2) Carrying concealed weapon
790.01(1) Sexual battery Battery
784.03 Attempt
794.011(2) Assault
784.011 Aggravated assault
784.021(1)(a) Aggravated battery
784.045(1)(a) Sexual ba...
CopyCited 99 times | Published | Supreme Court of Florida | 1998 WL 716709
...ior convicted felon element of the charge. We quash the decision under review and remand for a new trial. [1] MATERIAL FACTS Petitioner Terry Kenneth Brown (Brown) was convicted of unlawfully possessing a firearm by a convicted felon in violation of section 790.23, Florida Statutes (1995), and sentenced to seven years in prison as a habitual felony offender....
CopyCited 89 times | Published | Supreme Court of Florida
...We answer the certified questions in the affirmative and approve the decision of the district court of appeal. It is so ordered. SUNDBERG, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur. NOTES [*] See §
810.02(2)(b), Fla. Stat. (1977) (burglary while armed), §
810.06 (possession of burglary tools), §
790.23 (possession of firearm by convicted felon), and §
790.01(2) (carrying concealed firearm).
CopyCited 82 times | Published | Supreme Court of Florida
...certain arms or weapons may not be kept or borne by the citizen. We have specifically held that the Legislature can regulate the use and the manner of bearing certain specific weapons. In Nelson v. State,
195 So.2d 853 (1967) we held constitutional Section
790.23, Florida Statutes, F.S.A., which makes it unlawful for a convicted felon to have in his possession a pistol, sawed-off rifle, or sawed-off shotgun....
CopyCited 82 times | Published | Court of Appeals for the Eleventh Circuit | 1998 U.S. App. LEXIS 7769, 1998 WL 191046
...that are not
placed on mere misdemeanor offenders. Included among the disabilities are withdrawal of
voting rights, Fla. Stat. Ann. §
40.013; the right to run for political office, Fla. Const. 6 § 4; the
right to possess a firearm, Fla. Stat. Ann. §
790.23; the right to be a firefighter, Fla....
CopyCited 75 times | Published | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 400, 1992 Fla. LEXIS 1220, 1992 WL 148230
...790.001 as required by the allegations). Explanation of amendments: This instruction is on page 108 of the manual. The addition of "or firearm" clarifies the last sentence of this instruction. [Page A-42] *1220 FELONS POSSESSING WEAPONS (Amended) F.S. 790.23 Before you can find the defendant guilty of (crime charged), the State must prove the following two elements beyond a reasonable doubt: Elements 1....
...ing weapons to None Attempt minors under 18 years of age, etc.
790.17 Selling arms to minors None Attempt by dealers
790.18 Felons; possession of None Attempt (may be firearms unlawful; applicable when exception; penalty concealed weapon is
790.23 charged) Carrying concealed firearm
790.01(2) Carrying concealed weapon
790.01(1) Sexual battery Battery
784.03 Attempt
794.011(2) Assault
784.011 Aggravated assault
784.021(1)(a) Aggravated battery
784.045(1)(a) Sexual ba...
CopyCited 66 times | Published | Supreme Court of Florida | 1996 WL 73777
...In its opinion, the district court affirmed the imposition of condition 13 because it found that the condition was orally pronounced at sentencing. Hart v. State,
651 So.2d 112, 113, 114 (Fla. 2d DCA 1995). The court also affirmed, on the basis of section
790.23, Florida Statutes (1991), [1] the imposition of condition 4 insofar as the condition prohibited Hart, a convicted felon, from owning or possessing a firearm....
CopyCited 32 times | Published | Supreme Court of Florida | 1998 WL 309060
...MATERIAL FACTS Petitioner Anthony D. White was arrested and later charged and convicted of two offenses: carrying a concealed firearm in violation of section
790.01, Florida Statutes (1993), *441 and possession of a firearm by a convicted felon, in violation of section
790.23, Florida Statutes (1993)....
CopyCited 31 times | Published | Supreme Court of Florida | 2008 WL 4240489
...cket. Other than gender, the record provides no additional information (such as name, age, address, or appearance) with regard to the anonymous caller. Baptiste was arrested and charged with unlawful possession of a firearm by a convicted felon. See § 790.23(1)(a), Fla....
CopyCited 26 times | Published | Supreme Court of Florida | 11 Fla. L. Weekly 277
...1st DCA 1985), affirming defendant's conviction of possession of a firearm by a convicted felon. In *1052 affirming defendant's conviction, the court certified to us the following question as one having great public importance: Whether, in a prosecution for unlawful possession of a firearm by a convicted felon under section 790.23, Florida Statutes, the admission into evidence of more than one prior felony and the particulars of each such crime (none being related to the offense charged), for the purpose of proving that the defendant was a convicted felon, is so...
...V, § 3(b)(4), Fla. Const. In the case at bar the defendant has only one previous felony conviction. Therefore we restate the question to conform with the facts of this case: Whether, in a prosecution for unlawful possession of a firearm by a convicted felon under section 790.23, Florida Statutes, prejudicial error results when the type of the prior conviction as well as the fact of such conviction is admitted into evidence in order to establish defendant's status as a convicted felon....
...Defendant's motion to prohibit the state from revealing the nature of his prior felony conviction, on grounds that it was unduly prejudicial, was also denied. In addition, the trial court denied defendant's motion for acquittal which claimed that the antique nature of the gun provided for an affirmative defense pursuant to section 790.23, Florida Statutes (1983)....
...Defendant claims that the trial court erred in denying the motion for judgment of acquittal because defendant, through expert testimony, created a reasonable doubt as to whether the gun in question was an antique or a replica thereof. Defendant's contention is based on section 790.23, Florida Statutes (1983), which prohibits a convicted felon from possessing a firearm unless it is an antique or a replica thereof....
...In the alternative, defendant focuses on the "or replica thereof" wording of the statute, claiming that the gun, if not an *1054 antique, was certainly a replica of an antique. Williams would have us construe the antique "or replica" exceptions of section 790.23 in such a way as to condone the concealment, by a convicted felon, of a firearm which may possibly be a replica of an antique, but is obviously operable and loaded with live ammunition. We do not believe that the legislature, when enacting section 790.23, intended that a convicted felon could be acquitted when possessing a concealed, loaded weapon by using the excuse that the weapon is an antique or a replica thereof....
CopyCited 24 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 399, 2016 Fla. LEXIS 2075
PARIENTE, J. The issue raised in this case is whether the “felon-in-possession” statute, section
790.23, which prohibits convicted felons from possessing “any firearm,” is unconstitutionally vague with respect to the meaning of a “replica” of an “antique firearm” as those terms are used in section
790.001(1). The First District Court of Appeal in Weeks v. State,
146 So.3d 81 (Fla. 1st DCA 2014), held section
790.23, Florida Statutes (2012), unconstitutionally vague....
...The *3 First District also certified its decision was in direct conflict with the decision of the Fifth District Court of Appeal in Bostic v. State,
902 So.2d 225, 229 (Fla. 5th DCA 2005), review denied,
912 So.2d 1217 (Fla.2005), which concluded that section
790.23 was not unconstitutionally vague....
...gnition or firing system as its distinctive feature. 1 Accordingly, we approve the First District’s reversal of Petitioner’s conviction for possession of a firearm by a convicted felon and the vacatur of his sentence, but not its conclusion that section 790.23 is unconstitutionally vague....
...Weeks, who admitted to having been previously convicted of a felony, was charged with one count of possession of a firearm by a convicted felon. Weeks moved to dismiss the charge, arguing that his rifle is a permissible antique firearm or replica thereof under section 790.23, or in the alternative, that the felon-in-possession statute is unconstitutionally vague if convicted felons are prohibited from possessing black-powder rifles....
...Thereafter, Weeks entered a plea of no contest to one count of constructive possession of a *4 firearm by a convicted felon. The trial court adjudicated Weeks guilty of the offense and sentenced him to three years’ probation. Weeks appealed his felon-in-possession conviction, claiming that section 790.23 is unconstitutionally vague....
...s whether a firearm qualifies as an ‘antique firearm’ or a . replica thereof,” expressing that “the distinctive feature of an antique firearm as defined in section
790.001 is the firing system.” Id. at 83, 84 . The First District held that section
790.23 “is unconstitutional with respect to the possession of a replica of an antique firearm by a convicted felon,” id. at 82 , and concluded as follows: [W]e hold section
790.23 is unconstitutionally vague as to antique replica firearms because the phrases “firearm” and “antique firearm” defined in chapter 790, do not give adequate notice of what constitutes a permissible replica of an antique firearm which may be lawfully carried by a convicted felon; therefore, arbitrary and discriminatory enforcement of section
790.23 may result....
...at 85 . The district court therefore reversed Weeks’s conviction, vacated his sentence, and certified conflict with the decision of the Fifth District in Bostic . ANALYSIS The issue presented in this case is whether the felon-in-possession statute, section
790.23, is unconstitutionally vague with respect to the possession of a “replica” of an “antique firearm,” as defined in section
790.001(1)....
...e statute may be given a fair construction that is consistent with the federal and state constitutions as well as with legislative intent.” Heart of Adoptions, Inc. v. J.A.,
963 So.2d 189, 207 (Fla.2007) (citation omitted). In ascertaining whether section
790.23 may be given a fair construction, we first review the statutory language of the felon-in-possession statute....
...to construe the statute in a manner that avoids holding it unconstitutionally vague and does not effectively rewrite the statute. See State v. Stalder,
630 So.2d 1072, 1076 (Fla.1994). The Felon-in-Possession Statute The felon-in-possession statute, section
790.23, “is intended to protect the public by preventing the possession of firearms by persons who, because of their past conduct, have demonstrated their unfitness to be entrusted with such dangerous instru-mentalities.” State v....
...Snyder,
673 So.2d 9, 10 (Fla.1996). The statute makes it a second-degree felony for a convicted felon to “own or to have in his or her care, custody, possession, or control any firearm,” unless his or her “civil rights and firearm authority have been restored.” §
790.23(1)(a), (2), (3), Fla....
...ll that testimony about that gun, [Weeks] would be in a world of hurt if a bear ,was charging after him to reload.” The District Court Decisions The certified conflict decision, in addressing a constitutional vagueness and overbreadth challenge to section
790.23, concluded that the statute was not unconstitutionally vague, “because the term ‘replica’ is not so vague as to render the statute unconstitutional.” Bostic,
902 So.2d at 229 ....
...sold the rifle to Bostic without the background check required for the purchase of a firearm,” and “Bostic obtained a permit to legally hunt with a muzzle loading rifle.” Id. Judge Sharp noted, however, that “an argument could be made that ‘law’ is far from settled as to the scope of section 790.23” because of this Court’s decision in Williams v....
...State,
492 So.2d 1051 (Fla.1986), receded from on other grounds, Brown v. State,
719 So.2d 882 (Fla.1998). Bostic,
902 So.2d at 231 (Sharp, J., dissenting). As Judge Sharp explained, in Williams , this Court affirmed a defendant’s conviction for possession of a firearm by a convicted felon under section
790.23 even though the defendant argued that his firearm “was allegedly an antique or replica.” Id. Our opinion in Williams , Judge Sharp observed, could lead to confusion over what type of conduct section
790.23 prohibits because [O]n the one hand, the court in Williams acknowledges that section
790.23 allows a felon to legally possess an antique or replica of an antique....
...It may be that the Williams court was concerned about the concealment aspect, but the case nevertheless states the defendant was convicted of merely possessing a firearm. Id. at 232. For reasons similar to those expressed by Judge Sharp, the First District in Weeks held section 790.23 unconstitutionally vague....
...No such concern is presented in the case at bar. Id. The First District in Weeks also addressed this Court’s decision in Williams , but concluded that the decision was not controlling because Williams did not consider specifically a challenge to the constitutionality of section 790.23....
...the statute. In short, the statutory term “generated] differing reasonable constructions,” which require application of the rule of lenity. Nettles v. State,
850 So.2d 487, 494 (Fla.2003), Accordingly, pursuant to the rule of lenity, we construe section
790.23 in favor of the reasonable construction advanced by Weeks ....
...This Case In this case, Weeks wanted to go hunting and, with his wife and his father, researched the law and determined that sections 790,001(1) and
790.001(6) allowed him to possess a replica of a 1918 black powder muzzleloader rifle with a percussion cap ignition system under section
790.23....
...s rifle’s attached scope did not remove his firearm from the statutory exemption. CONCLUSION In light of the foregoing, we approve the First District’s reversal of Weeks’s conviction and the vacatur of his sentence, but not its conclusion that section 790.23 is unconstitutionally vague; Instead, we conclude that a “replica” of an “antique firearm” under the statutory definition is reasonably construed as emphasizing the type of firing system of the replica antique firearm as its distinctive feature....
...erpretation in those decisions is inconsistent with this opinion. Accordingly, Weeks was entitled *10 to the statutory exception of the felon-in-possession statute because his firearm was a permissible “replica” of an “antique firearm” under section
790.23 as defined in section
790.001(1)....
CopyCited 24 times | Published | Supreme Court of Florida
...State,
233 So.2d 634 (Fla. 1970), that the state is not bound by the defendant's offer to stipulate to essential elements of the crime, stating that exclusion of such relevant evidence is left to the discretion of the trial court based on traditional grounds. Section
790.23(1), Florida Statutes (1977), prohibiting the possession of a firearm by a convicted felon, makes a prior conviction an essential element of the crime....
CopyCited 23 times | Published | Court of Appeals for the Eleventh Circuit | 1997 U.S. App. LEXIS 3578, 1997 WL 57712
...State of Florida,
650 So.2d 1024
(Fla.2d Dist.Ct.App.1995), affirmed,
673 So.2d 9 (Fla.1996). See
also Castillo v. State of Florida,
590 So.2d 458, 461 (Fla.3d
Dist.Ct.App.1991) (holding "conviction" within the meaning of the
Florida felon in possession of a firearm law (section
790.23,
Florida Statutes (1989)) requires an adjudication of guilt).
The court in Thompson discussed United States v....
CopyCited 22 times | Published | Florida 2nd District Court of Appeal
...01(d). We affirm. Appellant was charged by information filed March 25, 1983, with one count of possession of a short-barreled shotgun in violation of section
790.221, and a second count of possession of a firearm by a convicted felon in violation of section
790.23, Florida Statutes (1981)....
CopyCited 22 times | Published | Florida 2nd District Court of Appeal | 2002 WL 506856
...We affirm the convictions without discussion, but reverse the three-year mandatory sentence imposed for possession of a firearm by a convicted felon and remand for resentencing. Bundrage was found guilty after a jury trial of possession of a firearm by a felon, contrary to section
790.23, Florida Statutes (1999). At sentencing, the trial court imposed a three-year minimum mandatory sentence for the charge under the sentencing provision in section
775.087(2)(a)(1), Florida Statutes (1999). Section
790.23(1)(a) states, in part, that it is unlawful for a convicted felon to "own or to have in his or her care, custody, possession, or control" any firearm. Section
790.23(3) provides that any person who violates this section commits a felony of the second degree, punishable under sections
775.082 (term of imprisonment not exceeding fifteen years for second-degree felony),
775.083 (providing for fines),...
...sesses a firearm during the commission of certain offenses, including possession of a firearm by a felon. Bundrage argues that the trial court erred by imposing the three-year minimum mandatory sentence. He asserts that sections
775.087(2)(a)(1) and
790.23 either set forth separate crimes, in which case he was convicted of a crime not charged, or they provide different punishments for the same crime, in which case the statutes are ambiguous because the sentencing provisions in the two statutes conflict. If the statutes are ambiguous, Bundrage asserts that under the rule of lenity, the trial court was required to impose the sentence most favorable to him, which would be a sentence under the criminal punishment code, as provided for in sections
790.23 and
775.082....
...The jury found Bundrage "guilty of possession of a firearm by a convicted felon, as charged in the information." The information charged that Bundrage did "knowingly own or be in the care, custody, possession, or control of a firearm, contrary to Florida Statute
790.23." The information did not make reference to section
775.087, [1] and the language used to charge Bundrage could support a constructive possession theory....
CopyCited 20 times | Published | Florida 3rd District Court of Appeal | 1991 WL 240118
...on under section
790.07. The conviction on that count must be reversed. The defense next contends that the trial court erred by denying the defendant's motion to dismiss the charge of possession of *461 a firearm by a convicted felon in violation of section
790.23, Florida Statutes (1989). [4] Section
790.23 makes it "unlawful for any person who has been convicted of a felony ... to ... have in his ... possession ... any firearm... ." Id. §
790.23(1) (emphasis added)....
CopyCited 20 times | Published | Florida 5th District Court of Appeal | 2004 WL 1230999
...In this case, Walthour's motion sets forth the undisputed facts, coupled with the photographs of the two knives. The motion to dismiss recited the following facts. 1. The Defendant is charged in this case with Ct. 1 Possession of a Concealed *596 Weapon by a Convicted Felon in violation of Fla. Stat. 790.23, Ct....
...Based on our viewing of the photograph, the steak knife more closely resembles a kitchen knife, with a substantial blade and wooden handle, as opposed to a smaller sharp "steak" knife one normally uses to cut one's T-bone at the dinner table. Walthour was charged with violating section 790.23 by carrying a concealed weapon....
...rm to another. Garcia v. State,
789 So.2d 1059 (Fla. 4th DCA 2001), rev. denied,
817 So.2d 846 (Fla.2002); Evans v. State,
703 So.2d 1201 (Fla. 1st DCA 1997). REVERSED and REMANDED for further proceedings. THOMPSON and MONACO, JJ., concur. NOTES [1] §
790.23, Fla....
CopyCited 18 times | Published | Florida 4th District Court of Appeal | 1998 WL 219729
...nviction.'" Id. Over time, the most frequent construction of a statute's use of the term "conviction" has required a trial court's adjudication of the defendant's guilt after a plea or verdict. See State v. Snyder,
673 So.2d 9 (Fla.1996) (construing §
790.23, Fla....
...530 (1918) (construing §§ 3556, 3556a, General Statutes 1906, Florida Compiled Laws 1914); Childers v. Dep't of Envtl. Protection,
696 So.2d 962 (Fla. 1st DCA 1997) (construing § 370.092(8)(b), Fla. Stat. (1995)); Castillo v. State,
590 So.2d 458 (Fla. 3d DCA 1991) (construing §
790.23, Fla....
CopyCited 17 times | Published | Supreme Court of Florida | 1996 WL 63081
...2d DCA 1995), in which the Second District Court of Appeal certified conflict with the opinion in *10 Burkett v. State,
518 So.2d 1363 (Fla. 1st DCA 1988). We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. This case involves whether a defendant is "convicted" for purposes of section
790.23, Florida Statutes (1991), [1] when adjudicated guilty in the trial court, notwithstanding the fact that the defendant has the right to contest the validity of the conviction by appeal or by other procedures. For the reasons discussed below, we hold that an individual is "convicted" for purposes of section
790.23 from the point of being adjudicated guilty....
...r the grand theft conviction, but remanded the case to correct other sentencing problems. Snyder v. State,
597 So.2d 384 (Fla. 2d DCA 1992). The State filed an information charging Snyder with possession of a firearm by a convicted felon pursuant to section
790.23....
...While the district court below relied on Wheeler to conclude that Snyder's conviction for possession of a firearm must be reversed, the court also certified conflict with Burkett on this issue. Snyder,
650 So.2d at 1025. In Burkett, the First District Court of Appeal held that within the context of section
790.23, a defendant is "convicted" when he is adjudicated guilty in the trial court, notwithstanding the fact that the defendant has the right to contest the validity of the conviction by appeal or by other procedures. Burkett,
518 So.2d at 1366. The court based this conclusion on two grounds: 1) the presumptive correctness of criminal convictions; and 2) the fact that a pending appeal of the predicate conviction is irrelevant to the legislative purpose for section
790.23. Id. Section
790.23 is intended to protect the public by preventing the possession of firearms by persons who, because of their past conduct, have demonstrated their unfitness to be entrusted with such dangerous instrumentalities. Nelson v. State,
195 So.2d 853, 855 & n. 8 (Fla.1967). In order to achieve this legislative purpose, section
790.23 must apply following an adjudication of guilt in the trial court....
...Wheeler was controlling law in the Second District Court of Appeal at the time Snyder was convicted of possession of a firearm by a convicted felon. Thus, Snyder could rely upon Wheeler in concluding that he was not a "convicted felon" for purposes of section 790.23 while his predicate felony was pending on appeal....
...Thus, "[i]f a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred from achieving precisely the same result by judicial construction." Id. at 353-54,
84 S.Ct. at 1702-03. By disapproving the Wheeler interpretation of section
790.23 and approving the Burkett interpretation, we have enlarged the scope of criminal liability under the statute in the Second District Court of Appeal....
...reversed. Accordingly, we disapprove the district court's reasoning in this case, but approve its conclusion that Snyder's conviction must be reversed. In addition, we approve the opinion in Burkett that an individual is "convicted" for purposes of section 790.23 from the point of being adjudicated guilty....
...State,
465 So.2d 639 (Fla. 2d DCA 1985). I dissent from the majority's decision to approve the district court's reversal of Snyder's conviction. I would remand with directions to reinstate the conviction of Snyder for convicted felon in possession of a firearm. NOTES [1] Section
790.23, Florida Statutes (1991), provides in pertinent part: (1) It is unlawful for any person who has been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felony or convicted...
CopyCited 16 times | Published | Florida 3rd District Court of Appeal | 1992 WL 240626
...Vernal Earle Malcolm appeals the trial court's denial of his petition for a writ of error coram nobis. We reverse. I On January 31, 1983, Malcolm was charged by information before the trial court with (1) unlawful possession of a firearm by a convicted felon, § 790.23, Fla....
...cord fully supports, establishing beyond peradventure that he is innocent of one of the crimes for which he was convicted, a classic case for coram nobis relief. Welles. Malcolm was convicted of unlawful possession of a firearm by a convicted felon [§ 790.23, Fla....
CopyCited 16 times | Published | Florida 2nd District Court of Appeal | 1991 WL 186669
...We affirm this case without prejudice to Plowman to seek relief pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Plowman alleges that his convictions and sentences for three counts of possession of firearms by a convicted felon, in violation of section 790.23, Florida Statutes (1987), run afoul of the prohibition against double jeopardy because all three counts stemmed from the same act....
...The court, relying on decisions from the federal courts, reasoned "that the term `any firearm' is ambiguous with respect to the unit of prosecution and must be treated as a single offense with multiple convictions and punishments being precluded."
462 So.2d at 814 (citations omitted). Plowman contends that because section
790.23(1) makes it unlawful for a convicted felon to possess " any firearm or electric weapon or device or to carry a concealed weapon, including all tear gas guns and chemical weapons or devices," he cannot be convicted and sentenced for thr...
CopyCited 16 times | Published | Florida 1st District Court of Appeal | 1998 WL 233360
...Appellant, who had a prior Florida felony conviction, discarded a bag containing two handguns while being chased by a police officer. He was subsequently charged with, and tried for, two counts of possession of a firearm by a convicted felon in violation of section 790.23, Florida Statutes (1995)....
...Johnson,
483 So.2d 420 (Fla. 1986) (a criminal conviction which violates the prohibition against double jeopardy constitutes fundamental error); Sanford v. Rubin,
237 So.2d 134 (Fla.1970) (fundamental error may be raised for the first time on appeal). To the extent relevant, section
790.23, Florida Statutes (1995), reads: (1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm ......
...(Emphasis supplied.) Thus applying the a/any test of Grappin, we conclude that Watt [sic] may not be charged with multiple offenses for the possession of two prison-made knives. Id. at 813-14. Appellant argues that, applying the Grappin/Watts "a/any test" to the language of section 790.23 which prohibits possession of " any firearm" (emphasis added), it is clear that his possession of two firearms at the same time may only be prosecuted as a single violation....
...We are unable to distinguish the language prohibiting possession of "any firearm or weapon" in a correctional facility found in section
944.47, Florida Statutes, which the court in Watts held precluded multiple prosecutions and convictions, from that found in section
790.23 prohibiting possession of "any firearm" by a convicted felon....
...Jones,
280 So.2d 431 (Fla.1973); Shands Teaching Hospital & Clinics, Inc. v. Smith,
480 So.2d 1366 (Fla. 1st DCA 1985), approved,
497 So.2d 644 (Fla.1986). We find no such authority in section
775.021(4)(b). Because we are unable to distinguish the relevant language of section
790.23 from that of section
944.47 addressed in Watts, we hold that the prohibition against double jeopardy precludes more than one conviction for the possession at the *1225 same time of multiple firearms by a convicted felon....
CopyCited 15 times | Published | Supreme Court of Florida | 2000 WL 1675950
...habitual felony offender sentencing. See id. (citing section
775.084(2), Florida Statutes (1991)). Possession of a Firearm by a Convicted Felon: In State v. Snyder,
673 So.2d 9, 10 (Fla.1996), this Court addressed the definition of "convicted" under section
790.23, Florida Statutes (1991), which prohibits convicted felons from possessing firearms. The Court held that section
790.23 applies "following an adjudication of guilt in the trial court." Snyder,
673 So.2d at 10....
CopyCited 15 times | Published | Florida 2nd District Court of Appeal | 1997 WL 227497
...statute when such action would result in a totally unintended result. In that case the court reviewed a decision by our First District Court of Appeal Williams v. State,
468 So.2d 447 (Fla. 1st DCA [1985]) which upheld the defendant's conviction of Section
790.23, Florida Statutes (1985) dealing with possession of a firearm by a convicted felon....
...a of an antique. Defendant claimed that his weapon had to fall into one of those two categories. Justice Adkins, writing for a unanimous court on this point, rejected that claim: Williams would have us construe the antique "or replica" exceptions of section 790.23 in such a way as to condone the concealment, by a convicted felon, of a firearm which may possibly be a replica of an antique, but is obviously operable and loaded with live ammunition. We do not believe that the legislature, when enacting section 790.23, intended that a convicted felon could be acquitted when possessing a concealed, loaded weapon by using the excuse that the weapon is an antique or a replica thereof....
CopyCited 15 times | Published | Court of Appeals for the Eleventh Circuit | 1984 U.S. App. LEXIS 22404
...At the time appellant purchased these weapons, both of which had been shipped in interstate commerce, he falsely stated that he had not been convicted of a felony. On May 15, 1981, appellant was charged by information in Florida Circuit Court with violating Fla.Stat.Ann. § 790.23, which makes it a crime for a convicted felon to possess a firearm....
CopyCited 15 times | Published | Florida 1st District Court of Appeal | 1988 WL 47253
...ections
782.04,
777.04, and
775.087, Florida Statutes; one count of use of a firearm during the commission of a felony, pursuant *1134 to Section
790.07(2), Florida Statutes; and one count of possession of a firearm by a convicted felon, pursuant to Section
790.23, Florida Statutes....
CopyCited 15 times | Published | Florida 2nd District Court of Appeal | 1995 WL 119122
...The appellant challenges probation condition four which states: "You will not possess, carry or own any firearms. You will not possess, carry, or own any weapons without first procuring the consent of your officer." The first sentence of this condition is a valid general condition under section
790.23, Florida Statutes (1991). Fitts v. State,
649 So.2d 300 (Fla. 2d DCA 1995). The portion of the condition that prohibits the carrying of weapons other than those enumerated in section
790.23, was not orally pronounced at sentencing and is stricken....
CopyCited 15 times | Published | Supreme Court of Florida
...*854 Coe & Coe, Pensacola, for appellant. Earl Faircloth, Atty. Gen., and James G. Mahorner, Asst. Atty. Gen., for appellee. PER CURIAM. This case is before us on appeal from the Court of Record of Escambia County, that court having upheld the validity of Florida Statute § 790.23, F.S.A. [1] Defendant, previously convicted of a felony and his civil rights not restored, was, by information, charged with having in his possession a pistol in violation of Florida Statute § 790.23, F.S.A....
...ed rights unrelated to their punishment." The constitutionality of Florida laws regulating the carrying of weapons [2] and conviction under the Statute in question [3] have been upheld but this Court has not passed directly upon the validity of F.S. § 790.23, F.S.A....
...We think the purpose of the Florida Statute is fairly comparable with that of the Federal Statute. [8] The statutory prohibition of possession of a pistol by one convicted of a felony, *856 civil rights not restored, is a reasonable public safeguard. We uphold the validity of § 790.23 and affirm the judgment appealed from....
CopyCited 15 times | Published | Florida 3rd District Court of Appeal | 2000 WL 1114346
...Meyer, Monroe, for appellee. Before GODERICH, GREEN and SORONDO, JJ. PER CURIAM. The State appeals from the lower court's order dismissing one count of an information charging Thomas Anderson with unlawful possession of firearm by a convicted felon under section 790.23(1), Florida Statutes (1997)....
....25(3)(n), Florida Statutes (1997), which the legislature stated should be liberally construed. He further argued that section
790.25(2)(b)(1), providing that the protections of the section did not apply to a person "using" a firearm in violation of section
790.23, did not apply to the facts of this case because he was not charged with "using" a firearm. The State filed a traverse and demurrer, claiming that Anderson was in possession of the firearm and that "use" was not required by section
790.23. The trial court granted Anderson's motion to dismiss the count for violation of section
790.23(1) due to the operation of section
790.25, because Anderson was not "using" a firearm, but merely possessing one....
...ed, which include, in pertinent part: (b) The protections of this section do not apply to the following: 1 .... a person using weapons or firearms in violation of ss.
790.07-790.12, 790.14-790.19,
790.22-790.24; §
790.25(2)(b)1., Fla. Stat. (1997). Section
790.23 states in pertinent part: (1) It is unlawful for any person to own or have in his or her care, custody, possession, or control any firearm or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been: (a) Convicted of a felony in the courts of this state §
790.23(1)(a), Fla....
...uding the evil to be corrected, the language, title, and history of its enactment, and the state of law already in existence on the statute. See McKibben v. Mallory,
293 So.2d 48, 52 (Fla.1974); Hinn v. Beary,
701 So.2d 579, 581 (Fla. 5th DCA 1997). Section
790.23 is intended to protect the public from persons, who, because *850 of their past conduct, have demonstrated they are unfit to be trusted with dangerous instruments such as firearms. See State v. Snyder,
673 So.2d 9, 10 (Fla.1996); Nelson v. State,
195 So.2d 853, 855 n. 8 (Fla.1967). The evil contemplated by section
790.23 is clearly the prevention of the possession and the use of firearms by convicted felons....
...ly, and the express permission for a person to possess arms at his or her home or place of business under section
790.25(3)(n), a convicted felon should be allowed to possess a firearm as long as he does not use it, in spite of the clear language in section
790.23(1)(a). To reach this result would not only frustrate the intent of section
790.23(1)(a), but render it meaningless....
...Iacovone,
660 So.2d 1371, 1373 (Fla.1995); Carnes v. State,
725 So.2d 417, 418 (Fla. 2d DCA 1999); United Auto. Ins. Co. v. Viles,
726 So.2d 320, 321 (Fla. 3d DCA 1998); Badaraco v. Suncoast Towers v. Assocs.,
676 So.2d 502, 503 (Fla. 3d DCA 1996). Section
790.23 clearly states that it is unlawful for any convicted felon to have in his or her care, custody, possession or control of a firearm. One cannot use a firearm without having it in his or her care, custody, possession or control. Anderson's claim that a violation of section
790.23 requires actual "use" is mere semantics, violates all common sense and frustrates the declared public policy to keep weapons out of the hands of criminals expressed in section
790.25(1)....
CopyCited 15 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 1901
...ZEHMER, Judge. Frederick Charles Hall appeals the trial court's denial of his motion for post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. Finding that Hall's motion has merit, we reverse. Hall was convicted in 1985 under section 790.23, Florida Statutes (1983), of possession of a firearm by a convicted felon....
CopyCited 14 times | Published | Florida 5th District Court of Appeal | 2003 WL 22213294
...Because the question of whether Appellant "actually possessed" the firearm was not determined by the jury, however, we hold that the court erred in imposing the sentence on Appellant. Appellant was charged by information that tracked the language of section 790.23, Florida Statutes, and provided as follows: "[Appellant] ......
CopyCited 14 times | Published | Florida 2nd District Court of Appeal | 2005 WL 1026014
...Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant. Jawdet I. Rubaii and Jack F. White, III, of Jawdet I. Rubaii, P.A., Clearwater, for Appellee. WALLACE, Judge. When the trial court dismissed the information against Mathew Sabastian Menuto, it held that section 790.23(1)(b), Florida Statutes (2002), was unconstitutional....
...The information further alleged that six years earlier, Menuto, as a juvenile, had been found to have committed burglary of a dwelling, which was a delinquent act that would have been a felony if committed by an adult. The information alleged that these facts constituted a violation of section 790.23, which provides, in pertinent part: (1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm....
...if that person has been: (a) Convicted of a felony in the courts of this state; (b) Found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age. For the purpose of section 790.23(1)(a), "conviction" means "adjudication of *606 guilt"a mere withhold of adjudication of guilt of the prior offense will not suffice....
...icted of unlawful possession of a firearm by a convicted felon based on such a withhold of adjudication."); accord Castillo v. State,
590 So.2d 458 (Fla. 3d DCA 1991); Burkett v. State,
518 So.2d 1363 (Fla. 1st DCA 1988). By contrast, a violation of section
790.23(1)(b) requires that the person has been "found" to have committed the prior offense....
...[1] Moving to dismiss the information, Menuto alleged that in the prior juvenile proceeding, he had not been adjudicated delinquent; rather, adjudication of delinquency had been withheld. Menuto argued that the statute was incongruous, requiring an adjudication of guilt to prove a violation of section 790.23(1)(a) but permitting a violation of section 790.23(1)(b) to be proved without an adjudication of delinquency....
..., and further that the statute violates equal protection and is arbitrary and capricious, both facially and as applied.. . ." In the alternative, Menuto requested the court to construe the phrase "[f]ound . . . to have committed a delinquent act" in section 790.23(1)(b) to require an adjudication of delinquency....
...included in subsection (1)(b). Rather, he questions his placement within subsection (1)(b) because his adjudication of delinquency was withheld. Accordingly, we first consider Menuto's constitutional challenge as a matter of procedural due process. Section 790.23 does not infringe upon a fundamental right....
...nable relationship to a permissible legislative objective." Lite v. State,
617 So.2d 1058, 1059 (Fla. 1993). "Further, the statute must not be discriminatory, arbitrary, or oppressive." Id. at 1059-60. *607 As an element of the offense prohibited by section
790.23(1), subsection (1)(a) requires that the person has been "[c]onvicted of a felony." Subsection (1)(b) requires that the person has been "[f]ound ....
...Because Menuto's argument is built upon the equivalence of these "apples and oranges," the argument fails. Menuto cites cases that loosely employ some of the language of criminal law to describe juvenile proceedings. E.g., C.C.B. *608 v. State,
782 So.2d 473, 478 (Fla. 4th DCA 2001) (noting that section
790.23 made it unlawful for a person to possess any firearm if the person had been "convicted" of a delinquent act); W.J....
...4th DCA 1997) (employing the same language). However, those cases concerned the permissible scope of a condition of juvenile probation. We do not believe that the authors of those opinions intended to criminalize juvenile proceedings. Equal Protection Because section 790.23 does not adversely affect a suspect class or a fundamental right, "the rational basis standard is applied to determine whether [the statute] denies equal protection" under the federal and Florida constitutions....
...d juvenile proceedings. We find no violation of equal protection. Within subsection (1)(b), there is a class of people under age twenty-four for whom a prior finding of a commission of a delinquent act will be an element of the offense prohibited by section
790.23(1). A second class of people age twenty-four and above with a juvenile record will not be so adversely affected if they possess a firearm. The trial court cited this disparity as an additional reason to find section
790.23 unconstitutional. Section
790.23(1)(b) reflects the proper exercise of legislative prerogative. Chapter 99-284, section 39, at 3133, Laws of Florida, substantially rewrote section
790.23, including the addition of the provision drawing a line at age twenty-four. Under the old version, if the prior offense was a delinquent act, the person had to be under the jurisdiction of the juvenile court at the time he committed the possession offense in order to be subject to section
790.23. If the juvenile court no longer had jurisdiction over the person (because he reached age nineteen, for example), then the person could not be held to account for violating section
790.23's prohibition on possession of a firearm by a person found to have committed a delinquent act. See State v. Brown,
745 So.2d 1006 (Fla. 2d DCA 1999) (considering section
790.23(2), Fla. Stat. (Supp.1998)). In other words, once the child reached majority, the prior juvenile offense could no longer be used to support a violation of section
790.23 when he possessed a firearm as an adult. Chapter 99-284 raised the age at which the person would be held responsible for the prior juvenile offense. In the new version, age twenty-four was selected as the age at which the person could possess a firearm without violating section
790.23....
...For this reason, the statute was not vague as applied to him, and he lacks standing to assert a facial vagueness claim. Statutory Construction Alternative to his constitutional challenges, Menuto contends that section 985.228(7) and the heading of section 790.23, when read in pari materia with section 790.23(1)(b), require the phrase "[f]ound . . . to have committed a delinquent act" in section 790.23(1)(b) to be construed as requiring an adjudication of delinquency. We do not agree. The heading of section 790.23 is "Felons and delinquents; possession of firearms or electric weapons or devices unlawful." Menuto believes that the inclusion of "delinquents" and the exclusion of those whose adjudication had been withheld excludes the latter from the meaning of section 790.23(1)(b)....
...Infrequently, the section headings within the codified Florida Statutes may be helpful in construing an ambiguous statute. Fajardo v. State,
805 So.2d 961, 963 (Fla. 2d DCA 2001). However, the rules of construction can only be invoked when a statute is ambiguous. Id. In this case, section
790.23(1)(b) is clear on its face; thus we need not look to the section heading. Further, reading section 985.228(7) in pari materia with section
790.23 does not aid Menuto's cause. Section 985.228(7) was enacted together with the revision to section
790.23....
...n of delinquency would not disqualify a person from lawfully possessing a firearm. However the phrase, "[n]otwithstanding any other provision of law" alerts the reader that other provisions may impact the force and effect of section 985.228(7). *610 Section 790.23 is such a provision. It is both more specific and broader in application than section 985.228(7) in three respects. First, the finding that the person committed a delinquent act required by section 790.23 necessarily encompasses the adjudication of delinquency required by section 985.228(7). Second, section 790.23 prohibits possession of more items than the firearms mentioned in section 985.228(7); these items include a tear-gas gun, an electric weapon or device, and a chemical weapon or device. Third, section 790.23(3) provides that "[a]ny person who violates this section commits a felony of the second degree, punishable as provided in s....
...775.082, s.
775.083, or s.
775.084." There is no penalty associated with section 985.228(7), and it does not describe the consequences of possessing a firearm when one is disqualified to do so. Thus it is apparent that section 985.228(7) does not withstand section
790.23; section
790.23 swallows it whole. Section 985.228(7) does not support a construction of section
790.23(1)(b) other than its plain meaning....
CopyCited 14 times | Published | Florida 3rd District Court of Appeal | 1988 WL 31677
...Butterworth, Atty. Gen., and Ralph Barreira, Asst. Atty. Gen., for appellee. Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ. NESBITT, Judge. Clevent D. Wilcox was convicted for the unlawful possession of a firearm by a convicted felon in violation of section 790.23, Florida Statutes (1985)....
...Wilcox was arrested and charged with the unlawful possession of a firearm by a convicted felon. At trial, Wilcox's girlfriend testified that she had placed the gun in his tote bag the night before the arrest without advising him. To sustain a conviction for violation of section 790.23, there must be proof that the defendant is a convicted felon, that the object found was a firearm, and that the defendant was in possession of the weapon. § 790.23(1), Fla....
...State, 12 F.L.W. 2137 (Fla. 1st DCA September 3, 1987) (evidence that defendant knew of firearm was sufficient to prove possession). Although neither the standard jury instruction, Fla. Std.Jury Instr. (Crim.), Felons Possessing Weapons, at 112 (1987), nor section 790.23 states that it is an essential element of the crime, knowledge, either actual or constructive, is required to prove possession, and the jury must be instructed accordingly....
CopyCited 13 times | Published | Florida 5th District Court of Appeal | 2001 WL 1346407
...Robert A. Butterworth, Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee. THOMPSON, C.J. Marceline Porter appeals her conviction for possession of a weapon by a convicted felon, in violation of section 790.23, Florida Statutes....
CopyCited 13 times | Published | Florida 1st District Court of Appeal | 1988 WL 2632
...Gen., Tallahassee, for appellee. BARFIELD, Judge. William Lee Burkett appeals his conviction for possession of a firearm by a convicted felon, asserting that he did not know he was a convicted felon at the time he possessed the firearm. We affirm. Section 790.23, Florida Statutes (1985), provides: (1) It is unlawful for any person who has been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felony or convicted of an offense in...
...he did not know he was a convicted felon at the time he possessed the firearm. He contends that a defendant's knowledge of his status as a convicted felon is an essential element which must be proved in order to sustain a conviction for violation of section 790.23, even though the statute does not expressly mention "knowledge" as an element of the offense....
...*1366 1979), [6] and Weathers v. State,
56 So.2d 536 (Fla. 1952), [7] and distinguishing Joyner on the ground that the respective controlling statutes had different purposes. Having considered these and other authorities, and the context in which the term is used in section
790.23, we hold that a defendant is "convicted", for purposes of that statute, when he is adjudicated guilty in the trial court, notwithstanding the fact that he has the right to contest the validity of the conviction by appeal or by other procedures....
...legislative purpose of protecting the public by preventing the possession of firearms by persons who, because of their past conduct, have demonstrated their unfitness to be entrusted with such dangerous instrumentalities. [9] This interpretation of section 790.23 is supported by decisions from other jurisdictions having similar statutory provisions....
...t he was a convicted felon at the time he was arrested on August 17 for carrying a firearm. A defendant's knowledge of his status as a convicted felon is not an essential element which must be proved in order to sustain a conviction for violation of section 790.23, although in most cases the State's proof of the predicate conviction carries with it proof of the defendant's knowledge of the conviction....
...s been taken from a judgment *1370 of guilty in the trial court that conviction does not become final until the judgment of the lower court has been affirmed by the appellate court." Id.
30 So.2d at 305. To conclude, the majority's interpretation of Section
790.23, Florida Statutes that its proscription applies to one at the time of his adjudication of guilt for a prior felony, regardless of the status of a pending appeal during the commission of the firearm offense may be correct....
CopyCited 13 times | Published | Court of Appeals for the Eleventh Circuit | 2009 U.S. App. LEXIS 2054, 2009 WL 242362
...And I could be
13
Pace was not indicted until December 14, 1988, so the question arises as to why Martin
would have met Pace at the jail on November 10. The record does not provide an explicit
explanation, but it suggests that Pace had been arrested for violating Fla. Stat. § 790.23,
prohibiting Florida felons from possessing a firearm....
CopyCited 13 times | Published | Florida 3rd District Court of Appeal | 1987 WL 2688
...Thornton, Asst. Atty. Gen., for appellee. Before SCHWARTZ, C.J., and HUBBART and DANIEL S. PEARSON, JJ. DANIEL S. PEARSON, Judge. Hipolito Marrero appeals his conviction and sentence for unlawful possession of a firearm by a convicted felon in violation of Section 790.23, Florida Statutes (1985), contending that, first, the evidence was insufficient to sustain a conviction and, second, the trial court's instruction to the jury on Marrero's necessity defense was erroneous....
...of himself was never a disputed issue, and because the entire focus of the case was the lawfulness of his possession after he disabled his attacker, the incomplete instruction eviscerated his defense. We agree with Marrero, and reverse. [1] Although Section 790.23, Florida Statutes (1985), makes it unlawful for "any person who has been convicted of a felony ......
CopyCited 13 times | Published | District Court, S.D. Florida | 1991 U.S. Dist. LEXIS 19750, 1991 WL 322275
...sented here. In Castillo v. State,
590 So.2d 458, 461 (Fla.3d D.C.A.1991), the defendant had been charged with, and convicted of, inter alia, the unlawful possession of a firearm by a "convicted" felon, under the Florida firearms statute, Fla. Stat. §
790.23. In reversing the defendant's conviction under Section
790.23(1), the Third District Court of Appeal ruled: Section
790.23 makes it "unlawful for any person who has been convicted of a felony ... to ... have in his ... possession ... any firearm...." Id. at §
790.23(1) (emphasis added)....
CopyCited 12 times | Published | Supreme Court of Florida | 1996 WL 580315
...[3] While each of the offenses contains the common element of possession of a firearm, each requires proof of an element that the others do not. Section
790.01(2) requires proof that the firearm was "concealed"; section
790.221 requires proof that the firearm was a "shortbarreled shotgun"; and section
790.23 requires proof that the person who was in possession of the firearm had been "convicted of a felony." Maxwell also argues that being punished three times for the same conduct of carrying a weapon violates the constitutional protection against double jeopardy....
...protection against double jeopardy. Accordingly, we quash the decision below. It is so ordered. KOGAN, C.J., and OVERTON, SHAW, GRIMES, WELLS and ANSTEAD, JJ., concur. NOTES [1] §
790.01(2), Fla. Stat. (1991). [2] §
790.221, Fla. Stat. (1991). [3] §
790.23, Fla....
CopyCited 12 times | Published | Court of Appeals for the Eleventh Circuit | 2010 U.S. App. LEXIS 6857, 2010 WL 1253554
...at
1303; however, we also noted that our analysis in Orellanes may not have fully
accounted for the context specific nature of the term “conviction” under Florida
law, id. at 1304. Thus, we turned to Florida law surrounding Florida’s unlawful
possession of a firearm by a felon statute, Fla. Stat. Ann. § 790.23....
CopyCited 11 times | Published | Florida 5th District Court of Appeal | 29 Fla. L. Weekly Fed. D 2247
...PALMER and TORPY, JJ., concur. NOTES [1] Frumenti filed a notice of supplemental authority in the trial court, which the court treated as a Rule 3.800(a) motion since Frumenti had nothing pending in the trial court at the time. [2] §
810.02(1), Fla. Stat. [3] §
790.23(3), Fla....
CopyCited 11 times | Published | Florida 4th District Court of Appeal | 1995 WL 621335
...sess a firearm with his probation officer's permission. Compare, e.g., Fitts v. State,
649 So.2d 300 (Fla. 2d DCA 1995); Jennings v. State,
645 So.2d 592 (Fla. 2d DCA 1994). Possession of a firearm by a convicted felon is statutorily-prohibited. See §
790.23, Fla....
...would not have to be orally pronounced. Furthermore, to the extent that this provision might be read to imply that a probation officer may consent to the possession of weapons such as an electronic weapon or concealed weapon, expressly prohibited by section 790.23, Florida Statutes, such construction would be contrary to law....
...rder utilized in this case uses the conjunction "and" between the two sentences. We do not perceive that this changes the meaning of the condition. [3] While it may be argued that a convicted felon is also prohibited from carrying "any weapon" under section 790.23 of the Florida Statutes (1993), the statute, by its express terms, only makes it unlawful for any person convicted of a felony to own, possess, or have in his care, custody, or control any firearm, electric weapon or device or to carry...
CopyCited 11 times | Published | Florida 2nd District Court of Appeal | 1995 WL 44548
...11 SUCH THAT ORAL PRONOUNCEMENT OF THESE CONDITIONS BY THE TRIAL COURT IS UNNECESSARY? *114 As to appellant Hart, we affirm condition 13. We affirm condition 4 insofar as it prohibits Hart, a convicted felon, from owning or possessing a firearm. See § 790.23, Fla....
CopyCited 10 times | Published | District Court, N.D. Florida | 1991 U.S. Dist. LEXIS 2256, 1991 WL 23651
...s violation. The Florida statute most analogous to section 922(g)(1), the one making it unlawful for a convicted felon to possess firearms, offers little help because it provides no definition for the terms "convicted" or "conviction." See Fla.Stat. § 790.23. Fortunately, one case, albeit one involving a very different factual situation, offers some insight into the meaning of the terms as used in section 790.23....
...While acknowledging that the terms "convicted" and "conviction" have been used in some contexts to represent the determination of guilt resulting either from a plea or trial, regardless of whether adjudication of guilt is withheld, the court held: "[A] defendant is "convicted," for purposes of [section
790.23], when he is adjudicated guilty in the trial court, notwithstanding the fact that he has the right to contest the validity of the conviction by appeal or by other procedures." Burkett,
518 So.2d at 1366 (emphasis added)....
...ction"). Finally, in Burkett v. State,
518 So.2d 1363 (Fla. 1st DCA 1988), a case discussed previously, the court held, once again without citing to Gazda, that adjudication was necessary before a defendant was considered "convicted" for purposes of section
790.23....
CopyCited 9 times | Published | Florida 1st District Court of Appeal
...(emphasis added) The rule disallowing the defense of self-defense also applies to possession of a weapon by a convicted felon. In Coleman v. State,
345 So.2d 1093 (Fla. 4th DCA 1977), the State proved that defendant was a convicted felon and that he had possession of a firearm, contrary to Section
790.23, Florida Statutes....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 17922, 2010 WL 4723042
...on manslaughter by act, requiring the reversal of appellant's second-degree murder conviction pursuant to Montgomery and Riesel. Second, appellant claims that his dual convictions for possession of a firearm by a violent career criminal pursuant to section 790.235, Florida Statutes (2007), and possession of a firearm by a convicted felon pursuant to section 790.23, Florida Statutes (2007), violated the constitutional prohibition against double jeopardy....
...h are lesser offenses the statutory elements of which are subsumed by the greater offense"). See also Williams v. State,
776 So.2d 358, 359 (Fla. 1st DCA 2001) (holding that the offense of carrying a concealed firearm by a convicted felon set out in section
790.23, Florida Statutes, is a lesser included offense of the offense of carrying a concealed firearm by a violent career criminal set out in section
790.235, Florida Statutes)....
...sion of a firearm by a violent career criminal pursuant to section
775.084(4)(d)1., Florida Statutes (2007), which requires that violent career criminals be sentenced to life for first-degree felonies, because sentencing should *163 be controlled by section
790.235, Florida Statutes (2007), which provides in pertinent part: (1) Any person who meets the violent career criminal criteria under s....
...m of 15 years' imprisonment; however, if the person would be sentenced to a longer term of imprisonment under s.
775.084(4)(d), the person must be sentenced under that provision. Otherwise, appellant claims that section
775.084(4)(d)1. would nullify section
790.235(1) by always requiring a life sentence....
...unless it finds that a violent career criminal sentence is not necessary for the protection of the public pursuant to section
775.084(4)(e), in which case the trial court has the discretion to impose a prison sentence of up to thirty years with a mandatory minimum of fifteen years pursuant to section
790.235(1)....
CopyCited 9 times | Published | Supreme Court of Florida | 32 Fla. L. Weekly Supp. 113, 2007 Fla. LEXIS 559, 2007 WL 924203
...aggravated stalking. This instruction was adopted in 2000 [
765 So.2d 692] and amended in 2007 to incorporate cyberstalking.
10.15 FELONS POSSESSING WEAPONS FELONS CARRYING A CONCEALED WEAPON OR POSSESSING FIREARM/AMMUNITION/ELECTRIC WEAPON OR DEVICE §
790.23, Fla....
...If a person does not have exclusive possession of an object a thing, knowledge of its presence may not be inferred or assumed. Lesser Included Offenses --------------------------------------------------------------------------------------------------- FELONS; POSSESSION OF FIREARMS UNLAWFUL; EXCEPTION, PENALTY 790.23 FELONS CARRYING A CONCEALED WEAPON OR POSSESSING FIREARM/AMMUNITION/ELECTRIC WEAPON OR DEVICE790.23 --------------------------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 1995 WL 18717
...Special probation condition (4), reads: You will neither possess, carry or own any weapons or firearms without first securing the consent of your Probation Officer. We strike that portion of the condition that improperly implies that a convicted felon may possess a firearm with his probation officer's permission. Section 790.23, Florida Statutes (1991), makes it unlawful for any person convicted of a felony to own, possess, or have in his care, custody, or control any firearm, electric weapon or device or to carry a concealed weapon, including all tear gas guns and chemical weapons or devices....
CopyCited 9 times | Published | Florida 1st District Court of Appeal
...Harris next contends that the trial court committed reversible error by allowing the state to introduce documentary evidence of Harris' four prior felony convictions, because the probative value of that evidence was substantially outweighed by its prejudicial and cumulative effect. Section 790.23, Florida Statutes, under which Harris was charged, provides in part: (1) It is unlawful for any person who has been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felo...
...four of his prior convictions and that the decision to do so, at the second trial, amounted to prosecutorial "overkill". We agree that the state was required to prove only that Harris had been convicted of one prior felony to satisfy this element of section 790.23....
...Once, as in this case, the state is presented with numerous prior felonies from which to choose, case law suggests it is not necessary to introduce evidence of all prior felony convictions out of an abundance of caution lest the selected felony conviction later prove subject to collateral attack. This is because section 790.23, similar to its federal counterpart, "imposes a firearm disability until the [felony] conviction is vacated or the felon is relieved of his disability by some affirmative action", such as having his civil rights restored....
...Accordingly, we are obliged to look to the supreme court for clarification of this confusion and certify the following as a question of great public importance: Whether, in a prosecution for unlawful possession of a firearm by a convicted felon under section 790.23, Florida Statutes, the admission into evidence of more than one prior felony conviction and the particulars of each such crime (none being related to the offense charged), for the purpose of proving that the defendant was a convicted f...
CopyCited 8 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 657, 2013 WL 5270683, 2013 Fla. LEXIS 2025
...or putting in fear, in violation of sections
812.133(1),
812.133(2)(a) and
775.087(2), Florida Statutes (2009); and that he did have in his care, custody, control or possession a firearm, after previously being convicted of a felony in violation of section
790.23, Florida Statutes (2009)....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 13775, 2009 WL 2949271
...hen it instructed the jury that Keitt was charged with "possession of a concealed weapon by a convicted felon," [1] and then consistently *326 labeled the crime that way throughout the instructions, on the verdict form, and on the adjudication form. Section 790.23(1), Florida Statutes (2007), encompasses two separate crimes....
...That error was compounded when the trial court gave the jury the definitions for actual and constructive possession, where those definitions were irrelevant to the charged crime and were likely confusing and misleading to the jury. The Standard Jury Instruction for crimes under section 790.23(1), Florida Statutes (2007), directs a trial judge to instruct a jury on the definitions of actual and constructive possession only if the defendant is charged with possession of a firearm, electric weapon or device, or ammunition....
...a convicted felon. We affirm his conviction and sentence for battery on a law enforcement officer. Affirmed in Part, Reversed in Part, and Remanded. POLEN and STEVENSON, JJ., concur. NOTES [1] Standard Jury Instruction
10.15 labels all crimes under section
790.23, Florida Statutes, as "Felon in Possession of a Weapon." This label is not consistent with the definitions of the crimes that the legislature has set out in section
790.23, Florida Statutes....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2013 WL 5539337, 2013 Fla. App. LEXIS 16012
...Bell subsequently pleaded no contest to both charges, and the trial court sentenced him to concurrent terms of twenty-four months in prison. Bell now contends, his pleas notwithstanding, that the dual convictions violate double jeopardy. 1 Both of Bell’s convictions are for violations of section 790.23(1), Florida Statutes (2011), which provides, in pertinent part: (1) It is unlawful for any person 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...
...Inside, they found a loaded .357 firearm next to the bed. Id. They also found ammunition for a 9mm firearm on a shelf in a closet. Id. The State charged Boyd with one count of felon in possession of a firearm and a separate count of felon in possession of ammunition under section 790.23(1), Florida Statutes (2005)....
...4th DCA 2011) (following Boyd on similar facts relating to convictions for possession of a firearm and separate ammunition). In this case, as in Boyd and Strain, the applicable statute prohibits Bell’s possession of “any firearm, ammunition, or electric weapon or device.” § 790.23(1)....
CopyCited 8 times | Published | Supreme Court of Florida
...sted to review a decision of a District Court of Appeal. The respondent, Robert Lee Davis, was tried without a jury in Dade County, and adjudged guilty of possessing a pistol after having been previously convicted of a felony, contrary to Fla. Stat. 790.23, F.S.A....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 1999 WL 104585
...example, in J.B.M. v. State,[
560 So.2d 347 (Fla. 5th DCA 1990)] the court held that a juvenile who committed a delinquent act that would be a felony if committed by an adult did not, when subsequently found to be in possession of a firearm, violate section
790.23(1), Florida Statutes....
CopyCited 8 times | Published | Supreme Court of Florida | 2001 WL 197053
...Based upon Woodruff, Rodriguez, and Harbaugh, we conclude that the term "conviction," as used in the felony DUI statute, does not require finality on appeal. In Snyder (the most analogous non-enhancement case), this Court considered the term "conviction" as it was used in section
790.23, Florida Statutes (1991). That statute criminalized the possession of firearms by convicted felons. The legislature's expressed intent in enacting section
790.23 was to "protect the public by preventing the possession of firearms by persons who, because of their past conduct, have demonstrated their unfitness to be entrusted with such dangerous instrumentalities." Snyder,
673 So.2d at 10. This Court unanimously agreed that, to achieve such a purpose, "section
790.23 must apply following an adjudication of guilt in the trial court." Id....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 1997 WL 66216
...is imposed. The holding of A.B.C. does not require that this condition be orally imposed. See Jaworski v. State,
650 So.2d 172 (Fla. 4th DCA 1995). 4. Not possess any firearms or weapons. Although section 39.054 does not address firearms or weapons, section
790.23, Florida Statutes (1995), makes it unlawful for a person to possess any firearm or electric weapon or to carry a concealed weapon if the person has been convicted of a delinquent act that would be a felony if committed by an adult....
CopyCited 8 times | Published | Supreme Court of Florida | 1990 WL 13573
...or carrying a concealed firearm and possession of a firearm by a convicted felon can properly arise out of the same act. We respond to both questions in the affirmative. Skeens pled guilty to being a felon in possession of a firearm, in violation of section
790.23, Florida Statutes (1983), and carrying a concealed firearm, in violation of section
790.01(2), Florida Statutes (1983), both offenses arising from the same act....
...d by Carawan v. State,
515 So.2d 161 (Fla. 1987). Under the Carawan analysis, carrying a concealed firearm and possession of a firearm by a convicted felon are separate offenses and can properly arise from a single act. A felon can be punished under section
790.23, Florida Statutes (1983), for being in simple possession of a firearm....
CopyCited 8 times | Published | Florida 5th District Court of Appeal
...Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Daytona Beach, for appellant. Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellee. COBB, Judge. The defendant, Louis Lee Snell, was charged under section 790.23, Florida Statutes, with unlawful possession of a firearm by a convicted felon....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 1999 WL 211864
...But for this stipulation, the defendant could not have been convicted of possession of a concealed weapon by a violent career criminal. The state maintains that the evidence adduced at trial was sufficient to prove the *833 lesser included offense of carrying of a concealed weapon by a convicted felon, pursuant to section 790.23(1)(a), Florida Statutes (1995)....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1998 WL 712455
...In the second trial, on virtually the same evidence, the trial court denied the motion for judgment of acquittal and submitted the felon in possession charge to the jury. We conclude this was error. The State must prove that Daniels was in actual or constructive possession of the firearm to prove a violation of section 790.23, Florida Statutes (1995)....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 2005 WL 1122945
...Squire, Assistant Attorney General, Daytona Beach, for Appellee. PALMER, J. David Christopher Bostic (defendant) appeals the trial court's order denying his motion to dismiss the information filed against him or, in the alternative, his motion to declare section 790.23 of the Florida Statutes (2001) unconstitutionally vague and overbroad. Concluding that the motion to dismiss was properly denied and that the statute is constitutional, we affirm. [1] The defendant was charged with committing the crime of possession of a firearm by a convicted felon, in violation of section 790.23(1)(a) of the Florida Statutes (2001). Section 790.23(1)(a) provides: Felons and delinquents; possession of firearms or electric weapons or devices unlawful....
...(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been: (a) Convicted of a felony in the court of this state.... § 790.23(1)(a), Fla....
...eapon was an antique firearm. In denying the defendant's dismissal motion, the trial court first ruled that dismissal was not warranted because the antique firearm defense is not available to convicted felons. In essence, the trial court interpreted section 790.23 of the Florida Statutes as prohibiting any firearm, whether antique or otherwise, from being possessed by a convicted felon....
...constitutional because the term "replica" is not so vague as to render the statute unconstitutional. AFFIRMED. GRIFFIN, J., concurs. SHARP, W., J., dissents, with opinion. SHARP, W., dissenting. I respectfully dissent because in my opinion, sections
790.23 and
790.001(6) either clearly permit a felon to own and possess (if not used in the commission of a crime) black-powder rifles, or if not, then the statutes are unconstitutionally vague as applied in this case. Section
790.23 provides as follows:
790.23....
...The rifle is loaded with a propellant through the muzzle and tapped into place with a ram rod. The ignition system uses a percussion cap, a copper cap with an explosive substance to cause the flame to ignite the propellant. Bostic believed this rifle was a replica of an antique and thus not a "firearm" for purposes of section 790.23....
...Bostic stored the rifle in his closet at home and never used it in the commission of a crime. Despite his efforts, Bostic was arrested at home and charged with possession of a firearm by a convicted felon. Bostic moved to dismiss the charge, arguing that the gun he purchased is not a firearm under section 790.23. He also moved to declare section 790.23 unconstitutional as void for vagueness....
...1855,
75 L.Ed.2d 903, quoting Smith v. Goguen,
415 U.S. 566, 574,
94 S.Ct. 1242,
39 L.Ed.2d 605 (1974). Here the evidence shows a wide-spread "common understanding and practice" even among law enforcement that the type of weapon purchase by Bostic is not prohibited by section
790.23....
...ho seeks to comply with them and thus they are unconstitutional. The common understanding and practice is on Bostic's side, that he can lawfully possess this rifle. However, an argument could be made that "law" is far from settled as to the scope of section
790.23. In Williams v. State,
492 So.2d 1051 (Fla. 1986), receded from on other grounds by Brown v. State,
719 So.2d 882 (Fla.1998), the Florida Supreme Court affirmed the defendant's conviction for possession of a firearm by a convicted felon under section
790.23. Williams, a convicted felon who previously committed armed robbery, had concealed a loaded pistol and carried it in a high crime area. Williams argued that section
790.23 did not apply since the pistol was allegedly an antique or replica....
...t the trial court erred in denying the motion for judgment of acquittal because defendant, through expert testimony, created a reasonable doubt as to whether the gun in question was an antique or a replica thereof. Defendant's contention is based on section 790.23, Florida Statutes (1983), which prohibits a convicted felon from possessing a firearm unless it is an antique or a replica thereof....
...nation. In the alternative, defendant focuses on the "or replica thereof" wording of the statute, claiming that the gun, if not an antique, was certainly a replica of an antique. Williams would have us construe the antique "or replica" exceptions of section 790.23 in such a way as to condone the concealment, by a convicted felon, of a firearm which may possibly be a replica of an antique, but is obviously operable and loaded with live ammunition. We do not believe that the legislature, when enacting section 790.23, intended that a convicted felon could be acquitted when possessing a concealed, loaded weapon by using the excuse that the weapon is an antique or a replica thereof....
...d such a result is clearly absurd. It is a basic tenet of statutory construction that statutes will not be interpreted so as to yield an absurd result. (emphasis added)
492 So.2d at 1053-1054. On the one hand, the court in Williams acknowledges that section
790.23 allows a felon to legally possess an antique or replica of an antique....
...plica of an antique to escape prosecution. It may be that the Williams court was concerned about the concealment aspect, but the case nevertheless states the defendant was convicted of merely possessing a firearm. If the statutes are so interpreted, section 790.23 simply cannot withstand a void-for-vagueness challenge....
CopyCited 7 times | Published | Florida 5th District Court of Appeal
...Public Defender, Daytona Beach, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Kellie A. Nielan, Asst. Atty. Gen., Daytona Beach, for appellee. COBB, Judge. The appellant, Felton White, challenges his conviction for possession of a firearm by a convicted felon under section 790.23, Florida Statutes (1987), which provides: It is unlawful for any [felon] ......
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2005 WL 1383334
...lant. Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. Winston Eugene Moore appeals his conviction for possession of a concealed weapon by a convicted felon in violation of section 790.23, Florida Statutes....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1995 WL 396350
...the appellant's contention that the trial court erred by imposing certain conditions of probation and certain cost assessments. Probation condition (3) states: "You will not possess, carry or own any weapons, firearms, or destructive devices." Since section 790.23, Florida Statutes (1991), makes it unlawful for any person convicted of a felony to own or have in his care, custody, possession, or control any firearm, that portion of condition (3) prohibiting possessing, carrying, or owning firearms is a general condition for which no oral pronouncement is needed....
CopyCited 7 times | Published | Court of Appeals for the Eleventh Circuit | 2010 U.S. App. LEXIS 24949, 2010 WL 4942800
...State Information
On October 19, 2004, Digsby was arrested and charged by information with
aggravated battery with great bodily harm and discharge of a firearm, in violation
of Fla. Stat. §§
784.045(1)(a),
775.087(1) and (2) (Count 1); possession of a
firearm by a convicted felon, in violation of Fla. Stat. §§
790.23 and
775.087(2)
(Count 2)1 ; and possession of less than 20 grams of marijuana, in violation of Fla.
Stat....
...of a firearm was “an essential
element” of his conviction for felon-in-possession-of-a-firearm. Ohayon,
483 F.3d
at 1286. Possession of a firearm was certainly an essential element of Digsby’s
conviction in the second trial. See Fla. Stat. §
790.23 (defining crime of
possession of a firearm by a convicted felon)....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1993 WL 322963
...probation officer. *593 The State agrees that the consent requirement should be stricken but argues that the remainder of the condition is valid. We agree. As a convicted felon, the defendant has forfeited his right to own or possess a firearm. See section 790.23(1), Florida Statutes (1991)....
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...We affirm in part and reverse in part. Willard was charged by amended information with one count of aggravated assault contrary to Section
784.021(1)(a), Florida Statutes (1979), and one count of possession of a concealed weapon by a convicted felon, contrary to Section
790.23, Florida Statutes (1979)....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1995 WL 215000
...Appellant seeks review of an order adjudicating him a delinquent child based upon findings that he had violated section
790.22(3), Florida Statutes (Supp. 1994) (unlawful possession of a firearm by a minor); section
790.01(2), Florida Statutes (1993) (carrying a concealed firearm); and section
790.23(1)(a), Florida Statutes (Supp....
...1994) as standing for proposition that "a defendant could not be convicted and sentenced for two crimes involving a firearm that arose out of the same criminal episode"). Accordingly, while we affirm the order of adjudication and disposition based upon the finding that appellant violated section 790.23(1)(a) (possession of a firearm by one previously found to have committed a delinquent act that would be a felony if committed by an adult), we remand with directions that the trial court enter an amended order of adjudication and dispo...
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 1996 WL 648296
...4th DCA 1996) (holding that rule 3.702(d)(12) is inapplicable to convictions for possession of a firearm by a convicted felon when unrelated to the commission of any additional substantive offense). AFFIRMED. SHARP, W. and GRIFFIN, JJ., concur. NOTES [1] § 790.23, Fla....
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...Public Defender, for appellant. Jim Smith, Atty. Gen., and A.S. Johnston, Asst. Atty. Gen., for appellee. LARRY G. SMITH, Judge. Appellant appeals his conviction by a jury of the offense of attempted possession of a firearm by a convicted felon, an offense proscribed by Section 790.23, Florida Statutes....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal
...ul for any person who has been convicted of a felony in the courts of this state to own or possess a firearm because of the provision therein that the same shall not apply to a person previously convicted of a felony whose rights have been restored. Section 790.23, Florida Statutes (1977)....
...been restored giving the defendant an absolute defense." Based thereon the trial court held the State was estopped to prosecute the defendant on said counts. Dismissal of Counts II and III by the trial court was error. The exception provided for in Section 790.23, Florida Statutes (1977), defining the offenses was not applicable because the civil rights of the defendant had not been restored....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2004 WL 574138
...l fifteen years to the original sentence. We find that James was improperly sentenced under the 10/20/Life statute as to count IV. Count IV of the information charged James with possession of a *1245 firearm by a convicted felon contrary to sections
790.23 and
775.087, Florida Statutes (2000)....
...Information." The information did not use the words "actually" possess in the charge, and the verdict form on count IV did not have a special finding that James "actually possessed" the weapon during the commission of these crimes. [4] Indeed, under section 790.23, a convicted felon may be convicted for possession of a firearm even if he merely owns the firearm or it is in his care or custody....
...having previously been convicted on January 10, 1996, of the felony crime of Delivery of Cocaine, in the Circuit Court of the Seventeenth Judicial Circuit, In and For Broward County, Florida, did then and there unlawfully own or have in his possession a firearm, contrary to F.S. 790.23 and F.S....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 12 Fla. L. Weekly 771
...Public Defender, Clearwater, for appellee. SCHEB, Acting Chief Judge. The state appeals the trial court's dismissal of a count in its information charging the defendant, Manfredo Ortiz, with the possession of a concealed weapon by a convicted felon, a violation of section 790.23, Florida Statutes (1985)....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2006 WL 1627008
...Because the trial court impermissibly allowed evidence of Morrow's other misdeeds to become a feature of the trial, we reverse. Morrow originally was charged with one count of armed robbery, see §
812.13(2)(a), Fla. Stat. (1999), and one count of possession of a firearm by a convicted felon. See §
790.23(1)(a), Fla....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 9849, 2010 WL 2675298
...s state, or be in actual or constructive possession of, 4 grams or more, but less than 14 grams of oxycodone, in violation of Florida Statute
893.135(1)(c)a" (Count II); and possession of a firearm or ammunition by a convicted felon, in violation of section
790.23, Florida Statutes (Count III)....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2006 WL 304561
...ch, for Appellee. SAWAYA, J. We are once again confronted with mistakes in jury instructions that the aggrieved *729 party claims constitute fundamental error. Having been convicted of carrying a concealed weapon by a convicted felon in violation of section
790.23, Florida Statutes (2002), and carrying a concealed weapon during the commission of a felony in violation of section
790.07, Florida Statutes (2002), Larry Caldwell complains that it was fundamental error to give instructions to the jur...
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2002 WL 31757235
...Pitts claims that the trial court could not impose the minimum mandatory because he had not been charged with possession of a firearm by a felon under section
775.087(2)(a), but rather, he was charged with possession of a firearm by a convicted felon under section
790.23, Florida Statutes (2000)....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 1996 WL 446518
...AFFIRMED in part; REVERSED in part; and REMANDED. PETERSON, C.J., and COBB, J., concur. NOTES [1] §§
782.04(2),
777.04(1), and (4), Fla. Stat. (1993). [2] §
810.02(2)(a), and (b), Fla. Stat. (1993). [3] §§
784.021(1)(a) and
784.07(2)(c), Fla. Stat. (1993). [4] §
790.23, Fla....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1994 WL 457117
...Jorandby, Public Defender, and Susan D. Cline, Asst. Public Defender, West Palm Beach, for appellee. POLEN, Judge. The state appeals an order that grants appellee's motion to dismiss charges of possession of a concealed weapon by a convicted felon, in violation of section 790.23, Florida Statutes....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 11583, 2009 WL 2517059
...Finally, we write to address whether dual convictions for possession of a firearm by a convicted felon and possession of ammunition by a convicted felon violate double jeopardy. In Hill v. State,
711 So.2d 1221 (Fla. 1st DCA 1998), the First District applied the Grappins/Watts "a/any test" to section
790.23, Florida Statutes, under which Boyd was convicted of one count possession of a firearm by a convicted felon and one count possession of ammunition by a convicted felon....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2003 WL 22056055
...ent career criminal because the record demonstrates that the State did not prove the essential elements *251 of that offense. Specifically, the State did not prove that Baldwin possessed a concealed weapon. Baldwin was charged with two violations of section 790.235, Florida Statutes (1999), which states in pertinent part: (1) Any person who meets the violent career criminal criteria under s....
...Section
790.001 also defines "firearm" and "concealed firearm." §
790.001(2), (6). It is undisputed that Baldwin's gun constitutes a "firearm" as that term is defined in chapter 790 and that he was properly convicted for possession of a firearm by a violent career criminal in violation of section
790.235....
...a "concealed weapon." We also find support for our conclusion in this court's decision in State v. Ortiz,
504 So.2d 39 (Fla. 2d DCA 1987). In Ortiz, the defendant was charged with possession of a concealed weapon by a convicted felon in violation of section
790.23, Florida Statutes (1985)....
...I agree with the majority's conclusion that Baldwin's convictions and sentences for carrying a concealed weapon by a violent career criminal and possession of a firearm by a violent career criminal cannot both be upheld. However, I disagree with the majority's reasoning and would reverse because section 790.235, Florida Statutes (1999), does not authorize separate convictions and sentences based upon one incident involving Baldwin's possession of a single gun....
...2d DCA 1983), approved,
450 So.2d 480 (Fla.1984); Burk v. State,
705 So.2d 1003, 1004 (Fla. 4th DCA 1998). Where the "legislature does not establish the allowable unit of prosecution with clarity, the ambiguity must be resolved in the accused's favor." Grappin,
427 So.2d at 762. A plain reading of section
790.235 suggests that the legislature did not intend to create two separate offenses for the simultaneous conduct of possessing a firearm and carrying a concealed weapon when only one item is at the heart of the conduct. Section
790.235(1) provides the following: Any person who meets the violent career criminal criteria under s....
...prosecution was intended. Thus, it appears that the legislature identified two forms of conduct, either of which gives rise to a single unit of prosecution. [2] *254 While it may be possible for a defendant to be charged with multiple violations of section
790.235 based upon the simultaneous possession of more than one of the items identified in the statute, see Grappin,
427 So.2d at 763, that scenario is not present here because Baldwin possessed only one gun. Moreover, as this court noted in Grappin, to the extent that the statute is not clear as to the allowable unit of prosecution, the ambiguity must be resolved in the defendant's favor. Id. at 762. Section
790.235 addresses two types of conduct that are relevant here: first, it prohibits a violent career criminal from possessing a firearm; second, it prohibits a violent career criminal from carrying a concealed weapon....
...rt the conclusion that a firearm is a deadly weapon and, therefore, may be carried in a manner that qualifies *257 it as a concealed weapon. In the present case, involving one incident and one gun, I agree that Baldwin cannot be punished twice under section 790.235....
...[2] This differs from the situation in Skeens v. State,
556 So.2d 1113 (Fla.1990). There, the supreme court upheld convictions for carrying a concealed firearm under section
790.01(2), Florida Statutes (1983), and felon in possession of a firearm under section
790.23, Florida Statutes (1983)....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2002 WL 31060375
...ce, specifically appellant's knowledge of the gun's presence in the vehicle. Possession of a firearm by a convicted felon requires the state to prove: (1) appellant was a convicted felon and (2) he had in his care, custody, or control a firearm. See § 790.23(1)(a), Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1995 WL 516474
...The court ruled that "because all of the violations of law arose out of a single episode, an adjudication of delinquency based upon all three cannot stand." A.J.H.,
652 So.2d at 1280. Accordingly, we affirm the order of adjudication and disposition for M.P.C.'s violation of section
790.23(1)(a), but remand with directions that the trial court strike the remaining two adjudications and dispositions. AFFIRMED in part; REMANDED with directions. W. SHARP and GRIFFIN, JJ., concur. NOTES [1] §
790.23(1)(a), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...Thorpe complains also of his cross-examination by the prosecutor, for impeachment purposes, concerning prior convictions. Thorpe's counsel had stipulated to his prior conviction of manslaughter, a felony which the information charged as a predicate for prosecution under Section 790.23, Florida Statutes (1975)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...raband per se, burglary tools are not contraband per se... . State v. Thomas, supra at 1350. Like burglary tools, a firearm is not contraband, per se; yet, in the hands of a convicted felon, a firearm becomes equivalent to contraband for purposes of Section 790.23, Florida Statutes (1977)....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2007 WL 2376669
...It was noted in the State's Reply Brief that "[W]hen the police officer spoke to the defendant [after pulling him over], the officer noticed a firearm wedged between the defendant's seat and the center console in plain view." Mulus was thus charged with possession of a weapon by a felon under section 790.23, Florida Statutes (2005)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...Public Defender, of Hillsborough County, for appellant. Richard W. Ervin, Atty. Gen., Tallahassee, and Robert R. Crittenden Asst. Atty. Gen., Lakeland for appellee. WHITE, Judge. Tommy Joe Maloney appeals his conviction of having possession or control of certain weapons in violation of Fla. Stat. § 790.23, F.S.A., a law enacted in 1955....
...rom statutes of other jurisdictions making it unlawful for the weapon of the defendant to be on, under or behind the seat, cushion, door, side floor or pockets of an automobile. * * *" *583 As previously noted the statute here involved is the quoted § 790.23 F.S.A....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...olled substance, and possession of a firearm by a convicted felon. He raises two points, neither of which has merit, although one deserves comment. Defendant's conviction for possession of a firearm by a convicted felon was based on his violation of section 790.23, Florida Statutes (1981)....
...ts." Thus, he argues, the statute should be construed in his favor by our holding that when his "civil rights" were suspended, his right to possess a firearm was not. Further, he argues that even if his right to possess a firearm was suspended, that section 790.23 is not applicable to him because his civil rights were restored when the governor's office issued a "Certificate of Restoration of Civil Rights" on January 16, 1981. See § 790.23(2)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1994 WL 659359
...at portion of the condition referring to the consent of the probation officer must be stricken. See Pagan v. State,
637 So.2d 959 (Fla. 2d DCA 1994). The remainder of the condition is a valid general condition that need not be orally pronounced. See §
790.23, Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2008 WL 4899179
...is not explicitly authorized by section
985.435, Florida Statutes (2007), or any other applicable statute and was not orally pronounced. Finally, we consider the special condition that Appellant "shall not possess nor [sic] use any type of weapon." Section
790.23(1)(b), Florida Statutes (2007), makes it unlawful for a person to own or have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon if the person has been convicted of a delinquent act if committed by an adult....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1992 WL 110915
...Florida Statutes (1989), so that, under the rationale of Beasley and our decision in Hayes, no oral pronouncement was necessary. See Cumbie v. State,
597 So.2d 946 (Fla. 1st DCA 1992); Tillman. Likewise, the restrictions of Condition (4) derive from section
790.23(1), Florida Statutes (1989), making unlawful the ownership or possession of firearms or other weapons by a convicted felon....
CopyCited 5 times | Published | Florida 5th District Court of Appeal
...The search warrant reflected the items to be seized in the manner that they were listed in the affidavit. As a result of the search and seizure, the appellant was arrested and charged by an Information with possession of a firearm by a convicted felon in violation of Section 790.23, Florida Statutes (1977), in that he had a .38 Smith & Wesson revolver on September 1, 1978....
...den.,
367 So.2d 1124 (Fla. 1979); Richardson v. State,
251 So.2d 570 (Fla. 4th DCA 1971). The state subsequently nolle prossed that charge. Appellant was then charged by a second Information with possession of a firearm by a convicted felon in violation of Section
790.23, Florida Statutes (1977), in that he had a .38 Dan Wesson revolver on September 25, 1978....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 768
...In his motion to dismiss, appellant alleged that he could not be charged with possession of a firearm by a convicted felon because the charge was based upon a prior felony conviction which was still pending on appeal and, therefore, he was not a felon for purposes of conviction under section 790.23, Florida Statutes (1981)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1998 WL 329374
...However, pursuant to an investigation, appellee filed an administrative complaint to revoke appellant's permit. Following an informal hearing, appellant's permit was revoked because he had not sought restoration of his civil rights in Florida pursuant to section 790.23, Florida Statutes (1995). Under section 790.23, Florida Statutes (1995), a convicted felon is not permitted to carry a concealed weapon....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2008 WL 2338612
...e Florida Constitution. Id. at 281. B. The offense of possession of a firearm by a convicted felon consists of two elements: (1) prior conviction of a felony and (2) knowingly owning or having a firearm in one's care, custody, possession or control. § 790.23(1)(a), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...It may be questioned, nonetheless, how Bryant can complain that at the time of the incident the deputy only seized the pistol and did not arrest, when, under the circumstances, he had a right to do both. [7] The order appealed from should be, and it is hereby, reversed. HOBSON, A.C.J., and MANN, J., concur. NOTES [1] § 790.23, F.S. 1969, F.S.A. [2] Bryant did not, and does not now, contend or suggest that his civil rights had been restored so as to except him from the provisions of § 790.23, supra....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 10 Fla. L. Weekly 114
...State,
459 So.2d 1175 (Fla. DCA 1984); Brady v. State,
457 So.2d 544 (Fla. 2d DCA 1984). SENTENCE VACATED AND REMANDED. COBB, C.J., and FRANK D. UPCHURCH, J., concur. NOTES [1] §
775.084, Fla. Stat. (1983). [2] §
810.02(2)(b), Fla. Stat. (1983). [3] §
790.23, Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 25 Fla. L. Weekly Fed. D 245
...Accordingly, we affirm in all regards except for the conviction and sentence for possession, which we vacate. AFFIRMED in part; REVERSED in part. HARRIS and PETERSON, JJ., concur. NOTES [1] §§
893.135(1)(b)(1)(a);
893.03(2)(a)(4);
775.087(1), Fla. Stat. [2] §§
893.13(1)(a)(1),
893.03(2)(a)(4), Fla. Stat. [3] §
790.23, Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...Public Defender, Tampa, for appellant. Earl Faircloth, Atty. Gen., Tallahassee, and Robert G. Stokes, Asst. Atty. Gen., Lakeland, for appellee. BARNS, PAUL D., Associate Judge. On Information, the appellant-defendant was charged, convicted, and sentenced for being guilty of violating Section 790.23, F.S.A. We affirm. Section 790.23, F.S.A....
...l review appellant's point relied on for reversal, which is: WAS THE STATE REQUIRED TO PROVE, PRODUCE OR SUBMIT EVIDENCE TO SHOW THAT APPELLANT'S CIVIL RIGHTS HAD NOT BEEN RESTORED? Our answer to this proposition is in the negative. Paragraph (2) of § 790.23, F.S.A., is an exception to the rule of law prescribed in paragraph (1)....
...ecisional law as announced in Baeumel v. State,
26 Fla. 71,
7 So. 371, holding that if there is an exception in the enacting clause of a statute the party pleading must show that his adversary is not within the exception, but (as in the enactment of §
790.23, supra) if there is an exception in a subsequent clause, or a subsequent statute, that is a matter of defense, and is to be shown by the other party See also Ferrell v....
CopyCited 5 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 877, 2013 WL 6305393, 2013 Fla. LEXIS 2640
...ONE CATEGORY TWO FLA. STAT. INS. NO. None_ Attempt_777.04(1)5.1 Assault
784.011 8.1 Comment This instruction was adopted in 1981 and amended in 2013.
10.15 FELONS CARRYING A CONCEALED WEAPON OR POSSESSING FIREARM/AMMUNITION/ELECTRIC WEAPON OR DEVICE §
790.23, Fla....
...umed. If a person does not have exclusive possession of an object, knowledge of its presence may not be inferred or assumed. Lesser Included Offenses FELONS CARRYING A CONCEALED WEAPON OR POSSESSING FIREARM/ _AMMUNITION/ELECTRIC WEAPON OR DEVICE — 790.23_ CATEGORY ONE_CATEGORY TWO_FLA....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...evidence is sufficient to support a conviction. We hold it is not. The Information in this case charged that the defendant, a convicted felon, did "unlawfully have in his possession a firearm, to wit: a pistol." Although the pertinent statute (F.S. Section 790.23) makes it unlawful for a convicted felon to have in his care, custody, possession, or control any firearm, the Information in this case charged the defendant only with possession of a firearm....
...to the person named." Similarly, in the instant case, by charging the defendant with possession of a firearm, the State obligated itself to prove possession in order to obtain conviction under the statute. The State argues that conviction under F.S. Section 790.23 is sustainable on an ownership theory, as established by the testimony of the two police officers, even though the Information alleged possession of a firearm and not ownership thereof....
...n." Reynolds v. State,
92 Fla. 1038,
111 So. 285 (1926). In affirming a conviction under the instant statute, the Second District Court of Appeal stated that the requirement that the possession be conscious and substantial was not applicable to F.S. Section
790.23 because the statute supplements "possession" with the additional words "care, custody, or control." Maloney v....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 20064, 2011 WL 6258836
...hat were violated. We note parenthetically that Roberts does not contend that he did not commit a willful and substantial violation of his community control. Roberts was originally convicted of possession of a firearm by a delinquent in violation of section 790.23(1)(b), Florida Statutes (2009)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2007 WL 2254573
...Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee. NORTHCUTT, Chief Judge. A jury found Alexander Watson guilty of possession of a firearm or ammunition by a convicted felon. See § 790.23(1)(a), Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1988 WL 92981
...That the trial court lacked jurisdiction to resentence the appellant is not the only troublesome point, for two of the convictions constitute double jeopardy. The appellant was convicted of second degree murder, a violation of section
782.04, possession of a firearm by a felon, a violation of section
790.23, and possession of a firearm during a felony, a violation of section
790.07....
CopyCited 4 times | Published | Supreme Court of Florida
...to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. The legislature has amplified on the disabilities which stem from conviction of a felony. Section
112.011 (employment); Section
790.23(1) (firearms); Section 40.07(1) (jury); Section
775.13 (registration of convicted felons); Section
97.041(3)(d) (voting); and Section
561.15 (beverage license), Florida Statutes (1975)....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1998 WL 658269
...Daniels, Public Defender; Angela Shelley, Assistant Public Defender, Tallahassee, for Appellant. Robert A. Butterworth, Attorney General; Kristina White, Assistant Attorney General, Tallahassee, for Appellee. DAVIS, Judge. Lavon D. Jackson appeals his conviction for possession of a firearm by a violent career criminal under section 790.235, Florida Statutes (1995)....
...ainst ex post facto laws [3] were violated by virtue of his conviction under this statute because the predicate offenses necessary to qualify him as a violent career criminal were juvenile adjudications of delinquency predating the effective date of section 790.235. He further asserts that the trial court erred in denying his motion to dismiss the jury venire after the prospective jurors were made aware that there were three other charges pending against him. We conclude that section 790.235 is constitutional, both facially and as applied to Jackson....
...084(1)(c), Florida Statutes (1995). [5] The statute under which Jackson was convicted was enacted effective October 1, 1995. See Ch. 95-182, §§ 7, 12, at 1673, 1675, Laws of Fla. We find no merit to Jackson's challenges to the constitutionality of section 790.235. Jackson argues that section 790.235 is arbitrary and oppressive in violation of his due process rights and violates the equal protection clause because it bears no rational relationship to the purpose of the statute....
...The Florida Supreme Court has already cogently concluded that statutes limiting the right to possess guns by those who have demonstrated a propensity for violent crime serve a legitimate and rational purpose. See State v. Snyder,
673 So.2d 9, 10 (Fla.1996)("Section
790.23 is intended to protect the public by preventing the possession of firearms by persons who, because of their past conduct, have demonstrated their unfitness to be entrusted with such dangerous instrumentalities.")....
...convicted felons from possessing firearms is to protect the public prospectively by preventing such possession by those "who, because of their past conduct, have demonstrated their unfitness to be entrusted with such dangerous instrumentalities." In section
790.235, the legislature has created a new substantive offense which does not apply retroactively to earlier offenses but operates prospectively. Cf. State v. Ferguson,
691 So.2d 578 (Fla. 2d DCA 1997)(holding that the minimum mandatory sentence imposed pursuant to section
790.235 was not permissive, the court stated that "section
790.235 is a substantive offense statute, not a sentencing statute"). The only punishment imposed on Jackson pursuant to this statute is for the current offense, which took place after the effective date of section
790.235....
...did not affect the jury's verdict." Id. Accordingly, we REVERSE and REMAND for a new trial. ALLEN, J., concurs. WOLF, J., concurs and dissents with written opinion. WOLF, Judge, concurring in part and dissenting in part. I concur in that portion of the opinion that holds section 790.23, Florida Statutes, to be constitutional, both facially and as applied to the defendant, Jackson....
...It is hard to envision more compelling circumstances for application of the harmless error analysis. NOTES [1] U.S. Const. Amend. XIV, § 1; Fla. Const. Art. I, § 9. [2] U.S. Const. Amend. XIV, § 1; Fla. Const. Art. I, § 2. [3] U.S. Const. Art. I, §§ 9, 10; Fla. Const. Art. I, § 10. [4] Section 790.235, Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1995 WL 552377
...Butterworth, Attorney General, Tallahassee, and Edward L. Giles, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. In Burkett v. State,
518 So.2d 1363 (Fla. 1st DCA 1988), the first district held that a defendant is "convicted" for purposes of section
790.23, Florida Statutes (possession of a firearm by a convicted felon) when he is adjudicated guilty in the trial court, notwithstanding a pending appeal of that conviction....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2004 WL 2254533
...was carrying a "deadly weapon" or a cooking utensil. The trial court denied McNeally's request, and McNeally was convicted as charged. On appeal, McNeally argues that the trial court erroneously denied his request for the jury instruction. We agree. Section 790.23(1)(a), Florida Statutes, provides that it is unlawful for a convicted felon to own or to have in his or her care, custody, possession, or control any firearm or electric weapon or device, or to carry a concealed weapon....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2005 WL 2439170
...rrest. Appellant further testified that Silva jumped out of the car before appellant stopped driving and that appellant finally stopped in front of his girlfriend's house. Appellant testified he had no knowledge that there had been a gun in the car. Section 790.23(1), Florida Statutes (2003) prohibits a convicted felon from having "custody, possession, or control" of any firearm....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1989 WL 129788
...inimum sentence imposed for the armed robbery conviction. AFFIRM; QUASH part of sentence. DANIEL, C.J., and HARRIS, Associate Judge, concur. NOTES [1] §§
777.011,
812.13, Fla. Stat. (1987). [2] §§
777.011,
777.04 &
812.13, Fla. Stat. (1987). [3] §
790.23, Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 1124
...judgment of acquittal at the close of all the evidence. He further argues that the court erred in denying his motion in limine, which sought to exclude evidence of the nature of his prior felony conviction. We affirm. The term "firearm," as used in section
790.23(1), Florida Statutes (1983), is defined as not including an "antique firearm." §
790.001(6), Fla....
...they are impossible to reconcile with any degree of consistency. Accordingly, as in Harris, we certify the following as a question of great public importance: WHETHER, IN A PROSECUTION FOR UNLAWFUL POSSESSION OF A FIREARM BY A CONVICTED FELON UNDER SECTION 790.23, FLORIDA STATUTES, THE ADMISSION INTO EVIDENCE OF MORE THAN ONE PRIOR FELONY CONVICTION AND THE PARTICULARS OF EACH SUCH CRIME (NONE BEING RELATED TO THE OFFENSE CHARGED), FOR THE PURPOSE OF PROVING THAT THE DEFENDANT WAS A CONVICTED FELON, IS SO PREJUDICIAL TO THE DEFENDANT'S RIGHT TO A FAIR TRIAL AS TO CONSTITUTE REVERSIBLE ERROR? AFFIRMED. ERVIN, C.J. and MILLS and ZEHMER, JJ., concur. NOTES [1] Section 790.23(1), Florida Statutes (1983), states: It is unlawful for any person who has been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felony or convicted of an offense in any...
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...possess a firearm, to-wit, a handgun, having been
convicted of a felony in the courts of the State of Florida,
to-wit: Armed Robbery, in the Circuit Court, in and for
the Fourth Judicial Circuit of Florida, on December 11,
2003, contrary to the provisions of Sections
790.23(1)(a)
[felon in possession] and
775.087(2)(a)(1) [10-20-Life],
Florida Statutes.
The verdict form for felon in possession started with “We, the
jury, find the defendant guilty of Possession of a Firearm by a
Convicted Felon, as...
...of felon in possession is not limited to actual possession. The felon
in possession statute prohibits convicted felons, among others,
from owning or having in their “care, custody, possession, or
control any firearm, ammunition,” and other weapons or devices.
§ 790.23(1), Fla....
...Thus, “[a] finding of either actual or
constructive possession will support a conviction” for felon in
possession. Swain v. State,
226 So. 3d 1002, 1003 (Fla. 1st DCA
2017); see also State v. Mulus,
970 So. 2d 349, 350 (Fla. 3d DCA
2007) (noting courts interpret section
790.23 as meaning
possession can be actual or constructive).
A jury can infer constructive possession when the evidence
shows a gun was in plain view or the defendant otherwise knew of
its presence and had the ability to control it....
...or control” a firearm or other prohibited item. Instead, the
information caption designated the charge in Count 2 as
“Possession of a Firearm by a Convicted Felon,” and the charging
paragraph stated that Appellant’s actions were “contrary to the
provisions of Sections
790.23(1)(a) and
775.087(2)(a)(1).” The word
“possess” appears only in the phrase “actually possess,” which the
State argues was included to satisfy Arnett....
...A document charging both felon in possession and 10-20-Life
sentence enhancement can be written in a variety of ways and still
be valid. Here, the information was captioned as “Possession of a
Firearm by a Convicted Felon,” and the body of the charge cited
section 790.23(1)(a), the felon in possession statute....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2001 WL 276856
...5) Not possess or carry any weapon unless permission is obtained from the court. In W.J., appellant challenged the condition "not possess any firearm or weapons." The court held that although former section 39.054 did not address firearms or weapons, section 790.23 makes it unlawful to possess any firearm or electric weapon or to carry a concealed weapon if the person has been convicted of a delinquent act that would be a felony if committed by an adult....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2004 WL 1413922
...such searches, and the one procedure that was established, in this case, was apparently disregarded. Accordingly, we reverse and remand for discharge. Patty; Beezley; Montalvo. REVERSED and REMANDED. SAWAYA, C.J., and GRIFFIN, J., concur. NOTES [1] Section 790.23, Florida Statutes (2003)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2006 WL 1708317
...erson who had earlier sat in a back seat, but who was arrested outside of the vehicle, particularly where there is no specific evidence reflecting that the weapon was within easy reach. I would reverse. NOTES [1] §
790.01(2), Fla. Stat. (2004). [2] §
790.23(1)(b), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 8248, 2010 WL 2326050
...The State, therefore, *951 is not required to prove that the accused intended to do violence to another in a prosecution for aggravated assault with a deadly weapon. AFFIRMED. PALMER and JACOBUS, JJ., concur. NOTES [1] Section
784.021(a), Florida Statutes (2008). [2] Section
790.23, Florida Statutes (2008)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 11092, 2010 WL 2975404
...Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee. EVANDER, J. After a traffic stop, Dennis Junior Francis, a convicted felon, was found in possession of a loaded 9mm. handgun. He was convicted of two counts of violating section 790.23, Florida Statutes (2008)one for possession of a firearm and the other for possession of the ammunition located therein....
...State,
863 So.2d 1180 (Fla.2003). In Bautista, the court stated: [A]bsent clear legislative intent to the contrary, the a/any test serves as a valuable but nonexclusive means to assist courts in determining the intended unit of prosecution. Id. at 1188. Section
790.23 provides in relevant part: (1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device,... if that person has been: (a) Convicted of a felony ... (Emphasis added). After applying the "a/ any" test, the First and Second District Courts of Appeal have found that the use of the term "any" in section
790.23 precludes multiple convictions where, during a single episode, the defendant was found to be in possession of more than one firearm....
...State,
622 So.2d 91 (Fla. 2d DCA 1993). The State contends that the instant case is distinguishable because Francis was in possession of a firearm and ammunition rather than two or more firearms. It is the State's contention that the term "any" in section
790.23 should be interpreted to apply separately to "firearm" and "ammunition" thereby permitting two units of prosecution....
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...t charging his possession of a short-barreled shotgun which was or could readily be made operable, Section
790.221, Florida Statutes (1979), and on another count charging that he, a previously convicted felon, possessed a firearm, to-wit, a shotgun, Section
790.23, Florida Statutes (1979)....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1995 WL 29051
...Snyder is presumed to know the law, he is presumed to have understood that, pursuant to Wheeler, he could lawfully possess a firearm pending review of his case in the Second District. Reversed and remanded with instructions that the defendant be discharged. BLUE and FULMER, JJ., concur. NOTES [1] § 790.23, Fla....
...grounds). Recent federal cases in Florida have followed the reasoning of Burkett v. State,
518 So.2d 1363 (Fla. 1st DCA 1988), in the context of whether a withheld adjudication can serve as the underlying "conviction" for the federal counterpart to section
790.23....
CopyCited 4 times | Published | District Court, S.D. Florida | 1994 U.S. Dist. LEXIS 14186, 1994 WL 547455
...See, e.g., United States v. Thompson,
756 F.Supp. 1492, 1493 (N.D.Fla.1991) (discussing different contexts in which Florida law defines "conviction"); Burkett v. State,
518 So.2d 1363 (Fla. 1st DCA 1988) (same). However, the Court finds that Florida Statute §
790.23, which is Florida's equivalent statute to 18 U.S.C. § 922(g)(1), and the line of cases discussing this Florida statute, are the most instructive in the present context. Florida Statute §
790.23 provides in pertinent part: (1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been: (a) Convicted of a felony.......
...(d) Found guilty of an offense that is a felony in another state, territory, or country and which was punishable by imprisonment for a term exceeding 1 year. (2) This section shall not apply to a person convicted of a felony whose civil rights and firearm authority have been restored, .... For the purposes of Florida Statute § 790.23, a review of Florida law seems to indicate that a "conviction" normally requires an adjudication of guilt....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1997 WL 54824
...Mitchell argues that despite this conviction, his manslaughter conviction was enhanced for the use of a firearm, and he was habitualized based on his prior convictions. The offenses of manslaughter, §
782.07, Florida Statutes (1993), and possession of a firearm by a convicted felon, §
790.23(1), Florida Statutes (1993), are separate offenses....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1992 WL 385371
...The question of whether such evidence was correctly admitted is resolved simply by determining its relevancy. See Bryan v. State,
533 So.2d 744, 746 (Fla. 1988), cert. denied,
490 U.S. 1028,
109 S.Ct. 1765,
104 L.Ed.2d 200 (1989). [6] The court took judicial notice of and read to the jury Section
790.23, Florida Statutes, which provides that it is unlawful for a person convicted of a felony in any state to possess a firearm.
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2003 WL 22023469
...Showalter, Assistant Public Defender, Tallahassee, for Appellant. Charlie Crist, Attorney General; Trisha E. Meggs, Assistant Attorney General, Tallahassee, for Appellee. BENTON, J. Joe T. Mason brings this direct appeal from conviction and sentence for violating section 790.23(1)(d), Florida Statutes (Supp.1998), which outlaws possession of a firearm by a person who has been found "guilty of an offense that is a felony in another state...." We reverse....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1990 WL 108830
...The state charged defendant Bell with committing the offenses of delivering cocaine, section
893.13(1)(a)1, Florida Statutes (1985), possession of cocaine, section
893.13(1)(e), Florida Statutes (1985), trafficking in cocaine, section
893.135(1)(b)1, Florida Statutes (1985), and possession of a firearm by a convicted felon, section
790.23, Florida Statutes (1985)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal
...The trial judge was incorrect, however, since firearms are not *1383 contraband per se. Porter v. State,
363 So.2d 41 (Fla.2d DCA 1978). The state now attempts to sustain the denial of Frame's motion because Frame was a felon possessing a firearm in violation of section
790.23, Florida Statutes (1979)....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2003 WL 22658101
...Pacheco on April 4, 2002 in violation of section
893.13(1)(a)1., Florida Statutes (2001). [1] In case number 02-9991, Simmons was charged with possession with intent to sell, manufacture or deliver cocaine on April 5, 2002 and unlawful possession of a firearm by a convicted felon in violation of sections
790.23(1)(a) [2] and
775.087, [3] Florida Statutes (2001), respectively....
...care, custody, possession, or control any firearm or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been: (a) Convicted of a felony in the courts of this state.... § 790.23, Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal
...Mandell, of Law Offices of Michael Sigman, Orlando, for appellant. Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee. ALDERMAN, Judge. This is a criminal appeal in which the defendant seeks reversal of his conviction for violation of Section 790.23, Florida Statutes....
...We hold that the trial court correctly disallowed the proffered testimony. We have also considered the other point raised by the defendant on this appeal and find it to be without merit. AFFIRMED. DOWNEY, J., and PARHAM, HARRY C., Associate Judge, concur. NOTES [1] Section 790.23, Florida Statutes (1975), provides: (1) It is unlawful for any person who has been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felony or convicted of an offense in...
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1999 WL 495487
...The officer's stop of White's car was improper, and all evidence seized as a result of the stop should have been suppressed. We reverse White's convictions, and we remand with directions to discharge him. Reversed and remanded. GREEN and SALCINES, JJ., Concur. NOTES [1] § 790.23, Fla....
CopyCited 3 times | Published | District Court, S.D. Florida | 2015 U.S. Dist. LEXIS 68344, 2015 WL 3409329
...The question is whether any of these offenses are non-bondable. If any are, and if probable cause is established as to that offense, then Smart’s nineteen-month incarceration without bond would be lawful. Possession of a firearm by a convicted felon is a crime governed by Section 790.23, Florida Statutes. Any person who violates Section 790.23, Florida Statutes, “commits a felony of the second degree.” § 790.23(3), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2008 WL 1914260
...f alleged possession where the State charged Mr. Saldana with only one count. Consequently, we reverse. The information alleged that Mr. Saldana owned or had in his care, custody, possession, or control, a "9mm handgun and/or .45 caliber Ruger." See § 790.23, Fla....
CopyCited 3 times | Published | Court of Appeals for the Eleventh Circuit | 2016 U.S. App. LEXIS 8652, 2016 WL 2754018
...§ 921(a)(20).
Florida’s felon-in-possession statute prohibits a person from “own[ing] or [ ]
hav[ing] in his or her care, custody, possession, or control any firearm . . . if that
person has been . . . [c]onvicted of a felony in the courts of [Florida].” Fla. Stat.
§
790.23(1).
A year ago, we certified a question to the Florida Supreme Court asking
whether that State treats a guilty plea for a felony with adjudication withheld as a
“conviction” for purposes of §
790.23(1)(a). United States v. Clarke,
780 F.3d
1131 (11th Cir. 2015) (per curiam) (Clarke I). We revisit this appeal with the
benefit of that court’s clear response: “[F]or purposes of section
790.23(1)(a), a
guilty plea for a felony for which adjudication was withheld does not qualify as a
‘conviction.’” 1 Clarke v....
...We have held that the “appropriate source of applicable Florida law [for
evaluating the term ‘conviction’ in § 922(g)(1)] would be that surrounding Florida’s
own unlawful possession of firearms by a felon statute, Fla. Stat. Ann. § 790.23.”
3
Case: 13-15874 Date Filed: 05/11/2016 Page: 4 of 25
United States v....
...society do not require that the defendant
suffer the penalty imposed by law.” Id. at 1114–15. Now that the Florida Supreme
Court has made clear that Jenkins’s guilty plea with adjudication withheld is not a
“conviction” for purposes of § 790.23(1)(a), his § 922(g)(1) conviction cannot stand.
II.
The Eleventh Circuit has contrary precedent on this issue....
...2015), the court certified the following
question to this Court:
Florida law prohibits a person from “own[ing] or . . . hav[ing] in his
or her care, custody, possession, or control any firearm . . . if that
person has been . . . [c]onvicted of a felony in the courts of [Florida].”
Fla. Stat. § 790.23(1)....
...For purposes of that statute, does a guilty plea
for a felony for which adjudication was withheld qualify as a
“convict[ion]”?
7
Case: 13-15874 Date Filed: 05/11/2016 Page: 8 of 25
Id. at 1133. Section 790.23(1)(a), Florida Statutes (2008), in pertinent part, makes
it a criminal offense for a person to own or have in his or her care, custody,
possession, or control any firearm if that person has been convicted of a felony in
the courts o...
...es of that statute
if the person has entered a plea of guilty to a felony offense but adjudication for
that offense has been withheld. For the reasons that we explain, we answer the
certified question in the negative and hold that for purposes of section
790.23(1)(a), a guilty plea for a felony for which adjudication was withheld does
not qualify as a “conviction” under that statute.
BACKGROUND AND FACTS
Joseph Peter Clarke and Bobby Jenkins were codefe...
...We are
concerned here only with the certified question as it relates to Bobby Jenkins. The
Eleventh Circuit addressed all other claims appealed by Jenkins and Clarke in a
separate opinion, and those claims are not at issue here.2 The question now before
1. Section 790.23(1)(a), Florida Statutes, also makes it unlawful for any
person to own or to have in his or her care, custody, possession, or control any
ammunition or electric weapon or device, or to carry a concealed weapon,
including a tear gas gun...
... Case: 13-15874 Date Filed: 05/11/2016 Page: 9 of 25
this Court involves whether Jenkins’ prior guilty plea in Florida in 2008, followed
by a withhold of adjudication as to the felony offense committed by him,
constitutes a “conviction” under section 790.23(1)(a).
In this case, the Eleventh Circuit explained that, after a reverse sting, Jenkins
and Clarke were indicted for conspiracy to commit Hobbs Act robbery, conspiracy
to possess with intent to distribute five or more kilogra...
...urisdiction in
which the proceedings were held.” 18 U.S.C. § 921(a)(20).3 “[T]he . . .
appropriate source of applicable Florida law would be that surrounding Florida’s
own unlawful possession of firearms by a felon statute, Fla. Stat. Ann. §
790.23.”
United States v. Chubbuck,
252 F.3d 1300, 1304 (11th Cir. 2001). Thus, the
question before this Court is whether Florida treats a guilty plea with adjudication
withheld as a “conviction” for purposes of section
790.23, Florida Statutes.
The Eleventh Circuit concluded that the Florida Supreme Court has not
squarely addressed this issue, but noted that in State v....
...t.” ’ ” Clarke,
780 F.3d at 1132 (quoting
McFadden,
772 So. 2d at 1215 n.5 (quoting Snyder,
673 So. 2d at 10)). The
Eleventh Circuit also recognized that Florida’s Second and Third District Courts of
Appeal have held that, for purposes of section
790.23, Florida Statutes, a
conviction requires adjudication....
...s Supreme Court, or the
Florida Supreme Court existed.” Id. at n.7 (bracketed material added).
Again, in the present case, the Eleventh Circuit has expressed its doubts
about whether this Court holds that “conviction,” for purposes of section
790.23(1), can be proven where adjudication was withheld as to the prior felony
offense....
...Id.
-8-
Case: 13-15874 Date Filed: 05/11/2016 Page: 15 of 25
As noted above, the Eleventh Circuit in the instant case is concerned that this
Court may hold that a conviction—for purposes of section 790.23(1), Florida’s
“felon-in-possession” statute—does require an adjudication of guilt....
...isdiction in a criminal proceeding.”
(bracketed material added)).
And, as the Eleventh Circuit noted in the instant case, Florida’s Second
District Court of Appeal and Third District Court of Appeal have held that for
prosecution under section
790.23, Florida Statutes, an adjudication is required.
The Third District in Castillo v. State,
590 So. 2d 458 (Fla. 3d DCA 1991), which
predated McFadden, held that for prosecution under section
790.23 “we construe
‘conviction’ to mean an adjudication of guilt....
...at 461 (citations omitted).
And, in State v. Menuto,
912 So. 2d 603 (Fla. 2d DCA 2005), the Second District
- 11 -
Case: 13-15874 Date Filed: 05/11/2016 Page: 18 of 25
relied on Castillo to hold that for purposes of section
790.23(1)(a), “ ‘conviction’
means ‘adjudication of guilt’—a mere withhold of adjudication of guilt of the prior
offense will not suffice.” Menuto,
912 So. 2d at 605-06 (citing Malcom v. State,
605 So. 2d 945, 948 (Fla. 3d DCA 1992) (holding that defendant was never
convicted of a felony for purposes of section
790.23 because he pled guilty and
adjudication was withheld)).
In McFadden, we acknowledged that some statutes have been held not to
require adjudication to constitute a “conviction.” We explained:
[W]hen we have defined...
...adjudication was
withheld. See Fla. R. Crim. P. 3.701(d)(2). The significant factor concerning the
above-cited statutes and rule is that they do expressly include withheld
adjudications as convictions for purposes of the statute or rule. Notably, section
790.23, at issue in this case, does not expressly include withheld adjudications
within the definition of conviction of a felony for purposes of the “felon-in-
possession” offense.
As the Fourth District in State v....
...to a serious offense involving violence
that is disposed of by a sentence that includes a withholding of adjudication of
guilt should be treated differently than a plea of guilty with court adjudication.”
Id.
In looking to the purpose of section 790.23(1)(a), and the evil to be corrected
by that provision, we held in 1967 that section 790.23, prohibiting convicted felons
from possessing firearms, is a reasonable public safeguard “intended to protect the
public by preventing the possession of firearms by persons who, because of their
past conduct, have demonstrated unfitness to be entrusted with such dangerous
5....
.../11/2016 Page: 23 of 25
history check, the Florida Department of Law Enforcement shall review records to
determine if the potential buyer “[h]as been convicted of a felony and is prohibited
from receipt or possession of a firearm pursuant to s.
790.23.” However, in that
same statute, section
790.065(2)(a)3....
...stay[s] and withhold[s] the imposition
of sentence,’ the court has found that ‘the defendant is not likely again to
engage in a criminal course of conduct.’ ” McFadden,
772 So. 2d at 1216
(quoting §
948.01(2), Fla. Stat. (1997)). Because section
790.23(1) is intended to
keep firearms out of the hands of persons who are dangerous or who might
reoffend, that purpose is not served where the trial court has explicitly determined
that the defendant is not a danger and is not likely to reoffend—thus withholding
adjudication under section
948.01 as was done in this case. The text of section
790.23(1)(a) does not state that the statute applies notwithstanding the fact that
adjudication was withheld. Thus, we adhere to our longstanding, consistent
definition of “conviction” to require an adjudication by the court, and conclude that
proof of a felony conviction for the purpose of prosecution of an offense under
section
790.23(1) requires proof of an adjudication of guilt.
CONCLUSION
For the reasons explained above, we answer the certified question posed by
the Eleventh Circuit Court of Appeals in the negative and hold that for purposes of
section
790.23(1), a guilty plea for a felony for which adjudication was withheld
does not qualify as a “conviction” under that statute....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1996 WL 237467
...Given that the authority to search the vehicle was explicitly within the search warrant a final, and conclusive, authority for doing so exists. REVERSED AND REMANDED. PETERSON, C.J., and ANTOON, J., concur. NOTES [1] §§
893.13(6)(a) and
893.03(2)(a)4, Fla.Stat. (1995). [2] §
790.23, Fla.Stat....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal
...The prison term specified in this special condition is therefore excessive. In addition, standard condition 4 of appellant's probation requires that she not possess, carry, or own any weapons or firearms "without first securing the consent of your Probation Officer." This condition must be stricken. Under section 790.23, Florida Statutes (1979), which prohibits a convicted felon from owning, possessing, or controlling any electric weapons or firearms, there is no authority for appellant's probation officer to consent to what would otherwise be a violation of the statute....
CopyCited 3 times | Published | Court of Appeals for the Eleventh Circuit | 2015 U.S. App. LEXIS 4219, 2015 WL 1197129
...Chubbuck,
252 F.3d 1300, 1304
(11th Cir. 2001) (“[T]he . . . appropriate source of applicable Florida law [for
evaluating the term ‘conviction’ in § 922(g)] would be that surrounding Florida’s
own unlawful possession of firearms by a felon statute, Fla. Stat. Ann. §
790.23.”).
The Florida Supreme Court has not squarely addressed this issue....
...Florida law prohibits a person from “own[ing] or . . . hav[ing] in his
or her care, custody, possession, or control any firearm . . . if that
person has been . . . [c]onvicted of a felony in the courts of [Florida].”
Fla. Stat. § 790.23(1)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1995 WL 334331
...mposing certain conditions of probation upon the appellant. Probation condition (4) states: "You will not possess, carry or own any firearms. You will not possess, carry, or own any weapons without first procuring the consent of your officer." Since section
790.23, Florida Statutes (1991), makes it unlawful for any person convicted of a felony to own, possess, or have in his care, custody, or control any firearm, that part of the condition prohibiting possessing, carrying, or owning firearms is a general condition for which no oral pronouncement is needed. Fitts v. State,
649 So.2d 300 (Fla. 2d DCA 1995). Therefore, that portion of condition (4) is affirmed. However, that portion of the condition which prohibits the carrying of weapons other than those enumerated in section
790.23 was not orally pronounced at sentencing and it is therefore stricken....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1998 WL 290225
...dication is not a "conviction." For example, in J.B.M. v. State, the court held that a juvenile who committed a delinquent act that would be a felony if committed by an adult did not, when subsequently found to be in possession of a firearm, violate section 790.23(1), Florida Statutes....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1995 WL 370701
...irearms. You will not possess, carry or own any weapons without first procuring the consent of your [probation] officer." We affirm the portion of this condition that prohibits Brown, a convicted felon, from possessing, carrying or owning a firearm. § 790.23, Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2003 WL 21713693
...for Appellee. PER CURIAM. J.D. Irons appeals the three-year minimum mandatory sentence imposed for possession of a firearm by a convicted felon. We reverse and remand for correction of the sentence. For possession of a firearm by a convicted felon, section
790.23, Florida Statutes (1999), the trial court sentenced Irons to three years in state prison as a habitual felony offender under section
775.084, Florida Statutes (1999)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2004 WL 1606670
...The State charged Appellant with robbery with a "deadly weapon," contrary to section
812.13(2)(a), Florida Statutes (2001) (Count One); resisting an officer without violence, contrary to section
843.02, Florida Statutes (Count Two); and possession of a concealed weapon by a felon, contrary to section
790.23(1), Florida Statutes (Count Three)....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2002 WL 180969
...ssociations, an apology letter, no contact with victim, and discretion of counselor to take away activities. Further, the weapons prohibition should be modified to only restrict the possession of firearms, electric weapons, or concealed weapons. See § 790.23, Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal
...This burden of proof is interchangeably described as the greater weight of the
evidence standard. See Savage v. State,
120 So. 3d 619, 621 (Fla. 2d DCA 2013) (citing
Hanania v. State,
855 So. 2d 92, 94 (Fla. 2d DCA 2003) (additional citations omitted)).
Section
790.23(1)(a), Florida Statutes (2014), makes it unlawful for any person
convicted of a felony to have in his care, custody, or control any firearm....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee. BOYER, Chief Judge. Appellant, defendant in the trial court, was charged by information with the crime of possession of a firearm by a convicted felon, contrary to Florida Statute 790.23....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 33 Fla. L. Weekly Fed. D 2853
...Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee. WALLACE, Judge. Cleveland B. Williams challenges the judgment and sentence imposed on him after a jury found him guilty of possession of a firearm by a convicted felon, a violation of section 790.23(1), Florida Statutes (2005)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...ce of the requisite members of the cabinet restoring appellant's civil rights "... except the specific authority to possess or own a firearm... ." Thereafter, appellant was charged with the crime of possession of a firearm by a convicted felon under § 790.23, Florida Statutes. The alleged unlawful possession was said to have occurred on March 15, 1980. Section 790.23, Florida Statutes (1979) provides as follows: (1) It is unlawful for any person who has been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felony or convicted of an o...
...ess a firearm. See Crossley v. State,
334 So.2d 17, 20 (Fla. 1976). His conclusion is that since "civil rights" forfeited by the conviction of a felony does not include the right to possess a firearm, all of his "civil rights" have been restored and §
790.23(2) operates as a complete defense to possession of a firearm by a convicted felon....
...What appellant actually received was a partial restoration of his civil rights rather than a complete restoration. When the appellant was convicted of a felony, one of the rights that he previously held as a citizen, the right to possess a firearm, was taken away by virtue of § 790.23(1)....
...Under the Governor's discretionary clemency power (Article IV, § 8, Florida Constitution) appellant was restored to all other pre-conviction rights except the authority to possess or own a firearm. The trial court properly denied the motion to dismiss because appellant had not had his "civil rights" restored for purposes of § 790.23 when the event for which he was charged occurred....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1990 WL 51699
...Florida Statutes (1987), for use in subsequent juvenile proceedings, an adjudication of a prior delinquent act is deemed a "conviction." Therefore, based on a prior delinquency adjudication, a child cannot be found to be a felon and to have violated section 790.23, Florida Statutes, which prohibits possession of a firearm by any person who has been "convicted of a felony." Accordingly, the adjudication of delinquency below, based on the child's violation of section 790.23, Florida Statutes, is REVERSED....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1995 WL 228268
...pronounced at sentencing and that a certain cost assessment should be stricken because no statutory authority was cited for it. Probation condition (3) states: "You will not possess, carry or own any weapons, firearms, or destructive devices." Since section 790.23, Florida Statutes (1991), makes it unlawful for any person convicted of a felony to own or have in his care, custody, possession, or control any firearm, that part of condition (3) prohibiting possessing, carrying, or owning firearms is a general condition for which no oral pronouncement is needed....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2014 Fla. App. LEXIS 13661, 2014 WL 4327954
...The trial court denied the
motion and ultimately Landrum was found and adjudicated guilty and
sentenced to prison.
The essence of the state’s prosecution—and indeed the central
element that must be proven before a defendant may be found guilty of
this crime—is the issue of a prior felony conviction. See § 790.23, Fla.
Stat....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal
...Siegendorf, Asst. Atty. Gen., for appellee. Before PEARSON, CARROLL and SWANN, JJ. PER CURIAM. The defendant, Anthony Wayne Gentille, appeals from the judgment of conviction and sentence in a non-jury case in which he was found guilty of the violation of Section 790.23, Florida Statutes, F.S.A., unlawful possession of a firearm by a convicted felon, and sentenced to ten years in the State Penitentiary. Section 790.23(1) provides: "It is unlawful for any person who has been convicted of a felony in the courts of this state, or convicted of an offense in any other state, territory or country which if committed in Florida would be deemed a felony, to...
...The defendant was arrested on June 16, 1965, charged with robbery, and incarcerated. Counsel was appointed to represent him on this charge. On August 9, 1965, while in custody under the robbery charge, his fingerprints were taken. On the next day, an information charging him with violation of Section 790.23 [unlawful possession] was sworn to, and it was filed on August 13, 1965....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1997 WL 678009
...2d DCA 1981). We stated: In addition, standard condition 4 of appellant's probation requires that she not possess, carry or own any weapons or firearms "without first securing the consent of your Probation Officer." This condition must be stricken. Under section 790.23, Florida Statutes (1979), which prohibits a convicted felon from owning, possessing, or controlling any electric weapons or firearms, there is no authority for appellant's probation officer to consent to what would otherwise be a violation of the statute....
...th Smith. [4] The reasoning in Smith was subject to criticism because, even if a probation officer told a convicted felon that he or she could carry a firearm without violating probation, the act of carrying the firearm would still be a violation of section 790.23, Florida Statutes....
...It only permitted a probation officer to allow a probationer to own, possess or carry a "weapon." [6] Under the 1993 condition four, there remains the unlikely possibility that a probation officer might authorize a convicted felon to possess a concealed or electric weapon in violation of section
790.23, but the major concern with firearms has been eliminated. In Malone v. State,
652 So.2d 902 (Fla. 2d DCA 1995), we approved the first sentence of the 1993 condition four, but struck "the portion of the condition that prohibits the carrying of weapons other than those enumerated in section
790.23," because it was an unannounced special condition....
...The other districts have apparently not stricken this condition since the Hart decision. In theory, the 1993 condition four still would authorize a probation officer to permit a probationer to possess a concealed or electric weapon in violation of section 790.23 without violating his or her probation....
...A computer search for the phrase, "condition four," in cases published after January 1, 1994, indicates that the other districts have stricken or modified this condition on only a few occasions, while this court has addressed the condition more than eighty times. [5] Section 790.23 makes it unlawful for a convicted felon "to own or to have in his or her care, custody, possession, or control any firearm or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or dev...
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 2332
...State,
423 So.2d 553 (Fla. 1st DCA 1982), there was an insufficient inquiry into defendant's request that his court appointed counsel be discharged, and (2) that defendant's guilty plea to the charge of possessing a firearm in violation of Florida Statute §
790.23 was coerced because the defendant pleaded guilty to that charge only after the request referred to in ground (1) was denied....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1996 WL 647517
...er rifle. Ms. Juanita Homquist, who lived with Johnson, was present at the time of the search. Ms. Homquist told the officers the gun belonged to her. Johnson was subsequently charged with possession of a firearm as a convicted felon in violation of section 790.23, Florida Statutes (1993)....
...tive to legitimate testimony elicited to establish ownership. Moreover, the record indicates that the state's case was based on a theory of *1371 constructive possession. Proof of ownership is not essential to establish constructive possession under section 790.23, Florida Statutes (1993)....
...ssion, we find that appellant's testimony did not give rise to manifest necessity by making it impossible to continue the trial. We, therefore, vacate the judgment and sentence in case no. 94-10193. PARKER, A.C.J., and LAZZARA, J., concur. NOTES [1] 790.23 Felons; possession of Firearms (1) It is unlawful for any person who has been convicted of a felony ......
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 1147
...Allen, Public Defender, and Ann Cocheu, Asst. Public Defender, Tallahassee, for appellant. Jim Smith, Atty. Gen., and Royall P. Terry, Asst. Atty. Gen., Tallahassee, for appellee. ZEHMER, Judge. John Thomas O'Steen appeals his conviction for violation of section 790.23, Florida Statutes (1985), which prohibits possession of a firearm by a convicted felon....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1994 WL 203718
...Butterworth, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee. DANAHY, Acting Chief Judge. This appeal results from convictions and sentences for four counts of possession of a firearm by a felon, a violation of section 790.23, Florida Statutes (1989)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 5868, 2009 WL 1424014
...Hunt said that he had been in possession of a gun three days before the homicide occurred. [2] After additional conversation, Mr. Hunt once again invoked his right to remain silent, and the detectives terminated the interview. The State subsequently charged Mr. Hunt with possession of a firearm by a convicted felon, section 790.23, Florida Statutes (2007)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2003 WL 21120689
...Taylor had been brandishing the gun before the deputies arrived and, thus, was in actual possession of the weapon, we cannot conclude that this error was harmless. See State v. DiGuilio,
491 So.2d 1129 (Fla. 1986). Reversed and remanded. FULMER and COVINGTON, JJ., Concur. NOTES [1] §
790.01, Fla. Stat. (1999). [2] §
790.23, Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 8797, 2009 WL 1675759
...e opposite party can be sustained under the law." Darling v. State,
808 So.2d 145, 155 (Fla.2002) (quoting Lynch v. State,
293 So.2d 44, 45 (Fla. 1974)). The State charged the defendant with possession of ammunition by a convicted felon, pursuant to section
790.23(1), Florida Statutes (2007)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 10597, 2009 WL 2338050
...Here, in its written order denying Chapman's motion to correct *275 illegal sentence, the trial court clarified the sentence imposed. AFFIRMED. MONACO, C.J. and COHEN, JJ., concur. NOTES [1] §§
893.135(1)(f) and
893.03(2)(c)(2), Fla. Stat. (2008). [2] §
790.23(1) and (2), Fla....
CopyCited 2 times | Published | Court of Appeals for the Eleventh Circuit | 2017 WL 3187337, 2017 U.S. App. LEXIS 13632
...A firearm that is illegal only under state law does
not count for § 922(g) purposes, but it does count for sentencing purposes.
Florida law clearly prohibited Gill from possessing the eighth firearm
(which was a Intratec pistol manufactured in Florida). Fla. Stat. § 790.23(1)
(prohibiting any person convicted of a felony to “own or to have in his or her care,
custody, possession, or control any firearm”) (emphasis added)....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1997 WL 408313
...Additionally, no sentence was imposed for that count and it was not included in the sentencing guidelines scoresheet. Thus, we strike this count from the judgment of conviction but affirm it in all other respects. See Samudio v. State,
460 So.2d 418 (Fla. 2d DCA 1984). [3] §
843.02, Fla. Stat. (1995). [4] §
790.23, Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 403, 2015 WL 160737
...ompartment after
he was arrested for a traffic violation violated double jeopardy); Strain v. State,
77 So.
3d 796, 797 (Fla. 4th DCA 2011) (holding that dual convictions of possession of a
1
Both offenses violate section
790.23(1), Florida Statutes (2009).
-2-
firearm by a convicted felon and possession of ammunition by a convicted felon violated
double jeopardy)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 20137, 2010 WL 5391539
...n the pockets of his heavy coat that could threaten the officer’s safety). REVERSED and REMANDED. TORPY and LAWSON, JJ., concur. . This court possesses jurisdiction pursuant to rule 9.140(c)(1)(B) of the Florida Rules of Appellate Procedure. . See § 790.23 Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 20446, 2011 WL 6373009
...State,
17 So.3d 812 (Fla. 4th DCA 2009). In Boyd , we held that the double jeopardy clause precludes convicting a felon for both possession of a firearm and possession of ammunition when the possessions occur at the same time. Id. at 818 (interpreting section
790.23, Florida Statutes (2005))....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 12169, 2010 WL 3239003
...sly been convicted of any crime. See N.Y. Penal Law § 265.01, .02 (McKinney 1996). The closest Florida felony offense would seem to be possession of a concealed weapon by a person having previously been convicted of an offense that is a felony. See § 790.23(1)(d), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2004 WL 1778952
...orida Statutes (2002). W.J. v. State,
688 So.2d 954 (Fla. 4th DCA 1997). Second, the probation condition regarding firearms must be modified to proscribe the possession of a firearm, electric weapon or a concealed weapon as specifically set forth in Section
790.23, Florida Statutes (2002)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2017 Fla. App. LEXIS 4539
...We
disagree, and affirm his sentence.
I. Facts
In 2003, the State charged the defendant with attempted second-degree
murder and possession of a firearm by a felon pursuant to sections
784.045,
782.04
and
790.23, Florida Statutes (2002)....
...e by imprisonment for a
term exceeding one year, did own or have in his care, custody, actual
possession or control, a certain firearm, to-wit: .357 Llama
Comanche Stoger Industries Revolver Serial Number S830231,
contrary to Section 790.23(1), Florida Statutes....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2004 WL 784855
...the State needs to establish the following two elements beyond a reasonable doubt: 1) The defendant has been convicted of a felony; and 2) After the conviction, the defendant owned or had in his care, custody, possession, or control, a firearm. See § 790.23, Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 15527, 2015 WL 6160805
ALTENBERND, Judge. J.J. appeals an order withholding adjudication of delinquency based on two offenses: delinquent in possession of a firearm in violation of section
790.23(1)(b), Florida Statutes (2013), and introduction of a firearm into a detention facility in violation of section
951.22, Florida Statutes (2013)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2008 Fla. App. LEXIS 17639
...not explicitly authorized by section
985.435, Florida Statutes (2007), or any other applicable statute and was not orally pronounced. Finally, we consider the special condition that Appellant “shall not possess nor [sic] use any type of weapon.” Section
790.23(l)(b), Florida Statutes (2007), makes it unlawful for a person to own or have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon if the person has been convicted of a delinquent act if committed by an adult....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 17178, 2010 WL 4484628
...Florida Statutes (2005), the 10/20/LIFE statute, for possessing a firearm during the attempted robbery. In count two, Mr. Carter was charged with possession of a firearm, ammunition, or concealed weapon by a convicted felon, a second-degree felony. § 790.23(1),(3), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2017 WL 2350134, 2017 Fla. App. LEXIS 7840
...Appellant, Arrington Brown, appeals the trial court’s order summarily denying his timely rule 3.850 motion for postconvietion relief. He claims that his convictions for possession of a firearm by a convicted felon and possession of ammunition by a convicted felon pursuant to section 790.23, Florida Statutes (2004), violate the prohibition against double jeopardy....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 6960, 2009 WL 1491437
...2D08-2650. District Court of Appeal of Florida, Second District. May 29, 2009. *1056 LaROSE, Judge. Euryia Mobley appeals the summary denial of his rule 3.850 motion seeking relief from his conviction for possession of a firearm by a convicted felon. See § 790.23, Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2007 WL 1501922
...ble doubt: 1) The defendant has been convicted of a felony; and 2) After the *1261 conviction, the defendant owned or had in his care, custody, possession, or control, a firearm. Morris v. State,
869 So.2d 1264, 1267 n. 1 (Fla. 3d DCA 2004) ( citing §
790.23, Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal
...N.G.S. then confessed that he got the gun in St. Petersburg and brought it into the car with him that night. The State later filed a delinquency petition alleging that N.G.S. committed two delinquent acts: (1) delinquent in possession of a firearm, see § 790.23(1)(b), Fla....
...had been adjudicated delinquent of felony offenses and were under the age of twenty-four, such that no matter who possessed or carried the gun, the delinquent acts had been committed or (2) that N.G.S. himself possessed and carried the firearm. See § 790.23(1)(b)....
...g," to prove that a crime has in fact happened. Allen ,
335 So.2d at 825 (quoting Tucker v. State ,
64 Fla. 518 ,
59 So. 941 , 941 (1912) ). So what is the corpus delicti in this case? Both offenses of which N.G.S. was found delinquent were based on section
790.23(1)(b), which provides in relevant part as follows: (1) It is unlawful for any person 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 w...
...If these were the facts and the State had sufficiently proved them, this would be a no-brainer affirmance. It is entirely logical to infer from the facts that someone in the car possessed the gun Detective Dodson found under the seat. And if everyone in the car was a delinquent described by section 790.23(1)(b), then it is equally logical to infer that an individual described by the statute possessed a firearm....
...ce with serious bodily injury where independent evidence showed that all of the occupants of the vehicle that caused the crash had been drinking and were impaired). Here, however, the only occupant of the car the State showed to have been covered by section 790.23(1)(b) was N.G.S....
CopyCited 1 times | Published | Supreme Court of Florida | 37 Fla. L. Weekly Supp. 352, 2012 WL 2848895, 2012 Fla. LEXIS 961
...05 and 2012.
10.15(a) POSSESSION OF [A FIREARM] [AN ELECTRIC WEAPON OR DEVICE] [AMMUNITION] OR [CARRYING A CONCEALED WEAPON] BY A PERSON UNDER THE AGE OF 24 WHO HAS BEEN FOUND DELINQUENT OF AN OFFENSE WHICH WOULD BE A FELONY IF COMMITTED BY AN ADULT §
790.23(l)(b) or (d), Fla....
CopyCited 1 times | Published | Supreme Court of Florida | 42 Fla. L. Weekly Supp. 239, 2017 WL 823613, 2017 Fla. LEXIS 448
...In doing so, the Court did not apply any level of scrutiny and noted that it had previously upheld other regulations enacted by the Legislature that regulated the use and manner of bearing specific weapons: In Nelson v. State,
195 So.2d 853 (1967) we held constitutional Section
790.23, Florida Statutes, F.S.A., which makes it unlawful for a convicted felon to have in *35 his possession a pistol, sawed-off rifle, or sawed-off shotgun....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 2669, 2011 WL 714317
...Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee. CLARK, J. Challenging his conviction under section 790.23(1)(a), Florida Statutes, for possession of a firearm by convicted felon, the appellant contends that the statute violates his right to bear arms pursuant to the Second Amendment to the United States Constitution....
...Furthermore, in both Heller and McDonald the Court expressly stated that the rulings in those cases should not be viewed as casting doubt on "prohibitions on the possession of firearms by felons...." Heller and McDonald thus do not undermine the Florida rulings in cases such as Nelson, with regard to the constitutionality of section
790.23(1)(a). See also Leon-Estrada v. Secretary, Dep't of Corrections,
2010 WL 3069475 (M.D.Fla. August 4, 2010). The appellant's conviction under section
790.23(1)(a) is therefore AFFIRMED....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2004 WL 442848
...the only change required on remand was to remove a three-year mandatory minimum term). Judgment AFFIRMED; sentence AFFIRMED as corrected; cause REMANDED for entry of a corrected sentencing order. SAWAYA, C.J., and PETERSON, J., concur. NOTES [1] See § 790.23, Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...Corin, Asst. Atty. Gen., for appellee. BOYER, Chief Judge. Appellant appeals a judgment of guilt and resulting sentence based upon an adverse jury verdict following a trial on a charge of possession of a firearm by a convicted felon proscribed by F.S. 790.23....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 9814, 2009 WL 2060118
...has now been released from secure detention, we have retained jurisdiction in this matter because the issue is likely to recur yet may evade review. See J.R. v. State,
953 So.2d 690 (Fla. 1st DCA 2007). Petitioner was arrested for an alleged violation of section
790.23(1)(b), Florida Statutes, which prohibits persons previously having been found to have committed certain delinquent acts from possessing any firearm, ammunition, or electric weapon or device, or carrying a concealed weapon, including a tear gas gun or chemical weapon or device. In petitioner's case, he was alleged to have been in possession of a firearm. A violation of section
790.23(1)(b) is a second-degree felony, and unless otherwise specified, the RAI assesses eight points where the most serious current offense is a second-degree felony....
...See P.A.J. v. Gnat,
684 So.2d 310 (Fla. 1st DCA 1996); D.G.H. v. Gnat,
682 So.2d 210 (Fla. 1st DCA 1996); see also M.G. v. Berry, 998 *
784 So.2d 634 (Fla. 3d DCA 2008); D.G. v. Miles,
872 So.2d 343 (Fla. 2d DCA 2004). The fact that petitioner violated section
790.23(1)(b) by possessing a firearm had already been accounted for by the scoring of 10 points for that offense, rather than the 8 points that would have been scored had he violated the statute by some means other than possession of a firearm or concealed weapon....
CopyCited 1 times | Published | District Court of Appeal of Florida | 1974 Fla. App. LEXIS 8050
PER CURIAM. By information the appellant was charged with possession of a concealed weapon (in violation of §
790.01 Fla.Stat., F.S.A.), and possession of a firearm by a convicted felon (in violation of §
790.23(1)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1999 WL 12696
...elony and the charge and verdict said semiautomatic weapon, then the sentence could be enhanced. There is a difference between a firearm and a semi-automatic weapon and the legislature has recognized it by permitting a more severe penalty. NOTES [1] § 790.23, Fla....
CopyCited 1 times | Published | District Court of Appeal of Florida | 1971 Fla. App. LEXIS 5427
...(1969). The information specifically charged that petitioner Van Cott was convicted of the felony of forgery in 1953, and did at the present time unlawfully and feloniously have in his custody, possession and control, guns, in violation of Fla.Stat. § 790.23, F.S.A....
...Van Cott’s motion to dismiss the information was denied, and he filed his petition for writ of prohibition in this court. We granted a rule nisi in the cause and now must determine whether the rule will be discharged or made absolute. Van Cott challenges the constitutionality of a portion of Fla.Stat. § 790.23, *458 F.S.A....
...tutional. Davis, supra; State ex rel. York v. Beckham,
160 Fla. 810 ,
36 So.2d 769 (1948); State ex rel. Pollack v. Saperstein, Fla. 1953,
67 So.2d 911 (concurring opinion by Justice Hobson). The statute under attack here reads in pertinent part: “
790.23 Felons; possession of firearms unlawful; exception; penalty.— (1) It is unlawful for any person who has been convicted of a felony in the courts of this state * * * to own or to have in his care, custody, possession, or control any firearm * * * but to include all tear gas guns and chemical weapons or devices....
...meaning and differ as to its application violates the first essential of due process of law.” ‘Such seems to be the test approved by the Supreme Court of the United States.’ ” The phrase “or other similar offense” contained in Fla.Stat. § 790.23, F. S.A. (1969), is not accurately definable. The extent of the exemption cannot be clearly ascertained and therefore the statute does not adequately inform those persons subject to it what conduct is prohibited. We feel that Fla.Stat. § 790.23, F.S.A....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2002 Fla. App. LEXIS 2930
firearms, electric weapons, or concealed weapons. See §
790.23, Fla. Stat. (1999). We find no error or abuse
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1995 WL 73498
...State,
559 So.2d 105 (Fla. 2d DCA 1990). Condition 4 prohibits the possession or ownership of firearms or weapons without the probation officer's consent. We affirm condition 4 insofar as it prohibits Geller, a convicted felon, from owning or possessing a firearm. See §
790.23, Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2013 WL 646648, 2013 Fla. App. LEXIS 2894
...se before admission of the statement, and defense counsel’s argument made at the end of the State’s case, relying on the corpus delicti rule, was not a proper substitute for a contemporaneous objection). AFFIRMED. PADOVANO and ROWE, JJ., concur. Section 790.23(l)(a), Florida Statutes (2010).
CopyCited 1 times | Published | Florida 4th District Court of Appeal
...Public Defender, Orlando, for appellant. Earl Faircloth, Atty. Gen., Tallahassee, and James M. Adams, Asst. Atty. Gen., West Palm Beach, for appellee. ON REHEARING REED, Judge. The appellant, Calloway Brown, appeals from a conviction under F.S. 1967, Section 790.23, F.S.A., for the offense of possessing a pistol after a previous felony conviction....
...The previous conviction was for the crime of breaking and entering with the intent to commit a misdemeanor under F.S. 1965, Section 810.05, F.S.A. The appellant contends that breaking and entering with the intent to commit a misdemeanor is not a felony; therefore, his conviction under F.S. 1967, Section 790.23, F.S.A., is invalid in that a conviction under that statute must rest on proof of a prior felony conviction....
...1965, Section 810.05, F.S.A., is a crime punishable by imprisonment in the state prison. It is, therefore, a felony under F.S. Section
775.08, F.S.A. As a felony, proof of breaking and entering with the intent to commit a misdemeanor will support a conviction under F.S. 1967, Section
790.23, F.S.A., for the offense of the possession of a pistol after a previous felony conviction....
CopyCited 1 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 41, 2016 Fla. LEXIS 277, 2016 WL 533898
...2015), the court certified the following
question to this Court:
Florida law prohibits a person from “own[ing] or . . . hav[ing] in his
or her care, custody, possession, or control any firearm . . . if that
person has been . . . [c]onvicted of a felony in the courts of [Florida].”
Fla. Stat. § 790.23(1). For purposes of that statute, does a guilty plea
for a felony for which adjudication was withheld qualify as a
“convict[ion]”?
Id. at 1133. Section 790.23(1)(a), Florida Statutes (2008), in pertinent part, makes
it a criminal offense for a person to own or have in his or her care, custody,
possession, or control any firearm if that person has been convicted of a felony in
the courts o...
...es of that statute
if the person has entered a plea of guilty to a felony offense but adjudication for
that offense has been withheld. For the reasons that we explain, we answer the
certified question in the negative and hold that for purposes of section
790.23(1)(a), a guilty plea for a felony for which adjudication was withheld does
not qualify as a “conviction” under that statute.
BACKGROUND AND FACTS
Joseph Peter Clarke and Bobby Jenkins were codefe...
...Clarke has no issues in
this appeal and his case is not the subject of the certified question. We are
concerned here only with the certified question as it relates to Bobby Jenkins. The
Eleventh Circuit addressed all other claims appealed by Jenkins and Clarke in a
1. Section 790.23(1)(a), Florida Statutes, also makes it unlawful for any
person to own or to have in his or her care, custody, possession, or control any
ammunition or electric weapon or device, or to carry a concealed weapon,
including a tear gas gun...
... separate opinion, and those claims are not at issue here.2 The question now before
this Court involves whether Jenkins’ prior guilty plea in Florida in 2008, followed
by a withhold of adjudication as to the felony offense committed by him,
constitutes a “conviction” under section 790.23(1)(a).
In this case, the Eleventh Circuit explained that, after a reverse sting, Jenkins
and Clarke were indicted for conspiracy to commit Hobbs Act robbery, conspiracy
to possess with intent to distribute five or more kilogra...
...urisdiction in
which the proceedings were held.” 18 U.S.C. § 921(a)(20).3 “[T]he . . .
appropriate source of applicable Florida law would be that surrounding Florida’s
own unlawful possession of firearms by a felon statute, Fla. Stat. Ann. §
790.23.”
United States v. Chubbuck,
252 F.3d 1300, 1304 (11th Cir. 2001). Thus, the
question before this Court is whether Florida treats a guilty plea with adjudication
withheld as a “conviction” for purposes of section
790.23, Florida Statutes.
3....
...t.” ’ ” Clarke,
780 F.3d at 1132 (quoting
McFadden,
772 So. 2d at 1215 n.5 (quoting Snyder,
673 So. 2d at 10)). The
Eleventh Circuit also recognized that Florida’s Second and Third District Courts of
Appeal have held that, for purposes of section
790.23, Florida Statutes, a
conviction requires adjudication....
...s Supreme Court, or the
Florida Supreme Court existed.” Id. at n.7 (bracketed material added).
Again, in the present case, the Eleventh Circuit has expressed its doubts
about whether this Court holds that “conviction,” for purposes of section
790.23(1), can be proven where adjudication was withheld as to the prior felony
offense....
...Florida law a
person is considered a felon even when there has been a withholding of
adjudication of guilt).
As noted above, the Eleventh Circuit in the instant case is concerned that
this Court may hold that a conviction—for purposes of section 790.23(1), Florida’s
“felon-in-possession” statute—does require an adjudication of guilt....
...isdiction in a criminal proceeding.”
(bracketed material added)).
And, as the Eleventh Circuit noted in the instant case, Florida’s Second
District Court of Appeal and Third District Court of Appeal have held that for
prosecution under section
790.23, Florida Statutes, an adjudication is required.
The Third District in Castillo v. State,
590 So. 2d 458 (Fla. 3d DCA 1991), which
- 11 -
predated McFadden, held that for prosecution under section
790.23 “we construe
‘conviction’ to mean an adjudication of guilt....
.... . . Where adjudication has been
withheld, the offender is not a convicted felon.” Id. at 461 (citations omitted).
And, in State v. Menuto,
912 So. 2d 603 (Fla. 2d DCA 2005), the Second District
relied on Castillo to hold that for purposes of section
790.23(1)(a), “ ‘conviction’
means ‘adjudication of guilt’—a mere withhold of adjudication of guilt of the prior
offense will not suffice.” Menuto,
912 So. 2d at 605-06 (citing Malcom v. State,
605 So. 2d 945, 948 (Fla. 3d DCA 1992) (holding that defendant was never
convicted of a felony for purposes of section
790.23 because he pled guilty and
adjudication was withheld)).
In McFadden, we acknowledged that some statutes have been held not to
require adjudication to constitute a “conviction.” We explained:
[W]hen we have defined...
...adjudication was
withheld. See Fla. R. Crim. P. 3.701(d)(2). The significant factor concerning the
above-cited statutes and rule is that they do expressly include withheld
adjudications as convictions for purposes of the statute or rule. Notably, section
790.23, at issue in this case, does not expressly include withheld adjudications
- 13 -
within the definition of conviction of a felony for purposes of the “felon-in-
possession” offense.
As the Fourth District in State v....
...ication of
guilt should be treated differently than a plea of guilty with court adjudication.”
Id.
5. Section
921.141(5)(b), Florida Statutes (1975).
- 15 -
In looking to the purpose of section
790.23(1)(a), and the evil to be corrected
by that provision, we held in 1967 that section
790.23, prohibiting convicted felons
from possessing firearms, is a reasonable public safeguard “intended to protect the
public by preventing the possession of firearms by persons who, because of their
past conduct, have demonstrated unfitness to be entrusted with such dangerous
instrumentalities.” State v....
...provides that upon receipt of a request for a criminal
history check, the Florida Department of Law Enforcement shall review records to
determine if the potential buyer “[h]as been convicted of a felony and is prohibited
from receipt or possession of a firearm pursuant to s.
790.23.” However, in that
same statute, section
790.065(2)(a)3....
...stay[s] and withhold[s] the
imposition of sentence,’ the court has found that ‘the defendant is not likely again
to engage in a criminal course of conduct.’ ” McFadden,
772 So. 2d at 1216
(quoting §
948.01(2), Fla. Stat. (1997)). Because section
790.23(1) is intended to
keep firearms out of the hands of persons who are dangerous or who might
reoffend, that purpose is not served where the trial court has explicitly determined
that the defendant is not a danger and is not likely to reoffend—thus withholding
adjudication under section
948.01 as was done in this case. The text of section
790.23(1)(a) does not state that the statute applies notwithstanding the fact that
adjudication was withheld....
...Thus, we adhere to our longstanding, consistent
definition of “conviction” to require an adjudication by the court, and conclude that
- 18 -
proof of a felony conviction for the purpose of prosecution of an offense under
section 790.23(1) requires proof of an adjudication of guilt.
CONCLUSION
For the reasons explained above, we answer the certified question posed by
the Eleventh Circuit Court of Appeals in the negative and hold that for purposes of
section 790.23(1), a guilty plea for a felony for which adjudication was withheld
does not qualify as a “conviction” under that statute....
CopyCited 1 times | Published | Florida 5th District Court of Appeal
dispositive motion to dismiss, where he alleged that section
790.23(2)(a), Florida Statutes (2017), unconstitutionally
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1999 WL 1244441
...ause Doyle had been convicted of a misdemeanor in New York that would have been a felony if committed in Florida, under Article X, Section 10 of the Florida Constitution, [1] he was not entitled to the permit pursuant to section
790.06(2)(d) [2] and section
790.23(1)(a), [3] Florida Statutes (1997)....
...es a crime committed elsewhere which would not be a felony if committed in Florida, under Article X, Section 10). In our judgment, however, the definition of felony in Article X, Section 10 is qualified by the provisions of sections
790.06(2)(d) and
790.23, which specifically apply to applications for firearm permits. Section
790.06(2)(d) requires that one's ineligibility to possess a firearm as a result of a felony conviction must be determined "pursuant to section
790.23." There are no provisions in section
790.23 [5] which, when read in conjunction with Article X, Section 10, disentitle one to a firearm permit simply based on a conviction in another state of any crime that would be punishable as a felony in this state....
...try and which was punishable by imprisonment for a term exceeding 1 year. " (Emphasis added.) Doyle was found guilty of a misdemeanor in the state of New York, not a felony; accordingly, this provision is also inapplicable. Reading the provisions of section 790.23(1) together reveals that the legislature intended to prohibit weapon possession by any person who has been actually convicted of a felony, or convicted as a juvenile of an offense that would actually have been a felony if committed by an adult....
...The provisions cannot reasonably be applied to misdemeanors that are committed in a sister state, regardless of whether such misdemeanors would have constituted felonies if committed in Florida. Article X, Section 10 does not require us to disregard the plain language of sections
790.06(2)(d) or
790.23. See McCoy Restaurants, Inc. v. Department of Bus. Reg., Div. of Alcoholic Beverages & Tobacco,
616 So.2d 545 (Fla. 1st DCA 1993). Our construction is underscored by section
790.23(2), which provides that the statute does not apply to a person convicted of a felony whose civil rights have been restored. In our judgment, if section
790.23 does not apply to a person whose civil rights have been restored, it certainly *356 cannot apply to a person whose civil rights were never suspended, as in the case of one convicted only of a misdemeanor....
...There, the Division denied an application for a concealed-weapon permit upon evidence showing that the applicant had previously been convicted of a felony in Connecticut, but that his civil rights had later been restored in that state. Relying on the provisions of section 790.23(2), the Division required that the applicant first obtain restoration of his civil rights by the Governor of Florida before his application could be considered....
...y death or by imprisonment in the state penitentiary. (Emphasis added.) [2] This section requires the Division to issue a license to carry a concealed weapon if, among other things, the applicant "[i]s not ineligible to possess a firearm pursuant to s. 790.23 by virtue of having been convicted of a felony." [3] Section 790.23(1)(a) prohibits firearms possession by any person "[c]onvicted of a felony or found to have committed a delinquent act that would be a felony if committed by an adult in the courts of this state." [4] The record indicates that Doyle was in possession of marijuana....
...Although the record is not clear as to the quantity of marijuana that Doyle possessed, we assume that if this was a first offense, he must have been in possession of more than five grams, because Doyle does not dispute that his New York offense would have been a felony under Florida law. [5] Section 790.23 provides: (1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or...
CopyCited 1 times | Published | Supreme Court of Florida | 1971 Fla. LEXIS 3102
language of paragraph (2), second clause of Section
790.23, does fail to meet the constitutional test
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 18297, 2010 WL 4861503
...ilty of felonious “possession” of a concealed weapon. Before sentencing, Mr. Williams pleaded guilty to the possession of cocaine charge. Because both the language used in the information and in the jury instructions intermingled the elements of section 790.23, Florida Statutes (2007), it is first important to review the relevant statute. Section 790.23 provides: (1) It is unlawful for any person 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 ... or device, if that person has been: (a) Convicted of a felony in the courts of this state[.] Mr. Williams correctly argues that section 790.23(1) contains two subparts....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2014 Fla. App. LEXIS 13230, 2014 WL 4197379
REVISED OPINION VAN NORTWICK, J. Christopher Douglas Weeks was convicted of possession of a firearm by a convicted felon, a violation of section
790.23, Florida Statutes (2012). He challenges his conviction arguing section
790.23 is unconstitutionally vague. Because we conclude that section
790.23 is unconstitutional with respect to the possession of a replica of an antique firearm by a convicted felon, we reverse the conviction, vacate the corresponding sentence, and certify conflict with Bostic v. State,
902 So.2d 225 (Fla. 5th DCA 2005). Weeks was arrested on February 4, 2012, for several offenses, including possession of a firearm by a convicted felon, a violation of section
790.23....
...An “antique firearm” is in turn defined in section
790.001(1) as a firearm manufactured in or before 1918 or any replica thereof. Weeks filed a motion to dismiss that count of the information relating to possession of a firearm on two grounds, including the ground that section
790.23 is unconstitutionally vague....
...to dismiss was dispositive. Weeks argues on appeal that given the multiple meanings which may be assigned to the term replica, as found in section
790.001(1), a person of ordinary intelligence is not given fair notice of what conduct is forbidden by section
790.23....
...He asserts that the term replica may be understood in various ways, and the resulting confusion as to the meaning of this term makes it impossible for the statute to “provide a definite warning of what conduct is *83 required or prohibited.” Warren v. State,
572 So.2d 1376,1377 (Fla.1991). As noted, we agree. Section
790.23(1) provides that possession of a “firearm” by a convicted felon constitutes a second degree felony....
...system, but also a replica of such. Given this definition, the firing or ignition mechanism of the firearm determines whether a firearm qualifies as an “antique firearm” or a replica thereof regardless of the date of manufacture. Significantly, section 790.23 does not define the term “replica.” Weeks possessed a black powder muzzle loader rifle with a percussion cap firing system....
...No such concern is presented in the case at bar. We recognize that the Supreme Court of Florida in Williams v. State,
492 So.2d 1051, 1054 (Fla.1986), receded from on other grounds, Brown v. State,
719 So.2d 882 (Fla.1998), declined to construe the antique “or replica” exceptions of section
790.23 in such a way as to condone the concealment, by a convicted felon, of a firearm which may possibly be a replica of an antique, but is obviously operable and loaded with live ammunition. We do not believe that the legislature, when enacting section
790.23 intended that a convicted felon could be acquitted when possessing a concealed, loaded weapon by using the excuse that the weapon is an antique or a replica thereof. The Supreme Court in Williams did not consider specifically a challenge to the constitutionality of section
790.23....
...dant has created reasonable doubt as to whether the gun in question in that case was an antique or a replica thereof. Given this distinct procedural posture, it does not control our review of the denial of Weeks’ motion to dismiss. In sum, we hold section 790.23 is unconstitutionally vague as to antique replica firearms because the phrases “firearm” and “antique firearm” defined in chapter 790, do not give adequate notice of what constitutes a permissible replica of an antique firearm which may be lawfully carried by a convicted felon; therefore, arbitrary and discriminatory enforcement of section 790.23 may result....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 12815
...Although Appellant’s sentence falls within the permissible statutory range for the type of crime committed, it cannot be said that the trial court’s consideration of Appellant’s subsequent, pending charges played no part in the twelve-year sentence imposed. See § 790.23(l)(a), (3), Fla....
CopyPublished | District Court, S.D. Florida | 1995 U.S. Dist. LEXIS 20029, 1995 WL 791255
...This section of the statute obviously fails to omit expressly the right to possess or use firearms from the civil rights that may be restored. Other statutes fail to provide any clearer sense of Florida’s view towards the exact policy on the restoration of civil rights. For instance, in § 790.23(1) the Florida legislature makes it a crime for a convicted felon to possess or use a firearm....
...Section 924(e)(1) only applies to those defendants convicted of a § 922(g)(1) offense. . This section of the statute was amended in 1993 to specify that a person’s "firearm authority” must also be restored in order to be exempted. Fla.Stat.Ann. § 790.23(1) (1995).
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 10213, 20 Fla. L. Weekly Fed. D 2232
carrying of weapons other than those enumerated in section
790.23, Florida Statutes (1993), since it is a special
CopyPublished | Supreme Court of Florida
...This instruction was adopted in 1981 and was amended in 1989_[
540 So. 2d
1205] and 2018.
10.15 FELONS CARRYING A CONCEALED WEAPON OR POSSESSING
[A FIREARM]/_[AMMUNITION]/_[AN ELECTRIC WEAPON OR
DEVICE]
§
790.23, Fla....
...voluntarily and intentionally and not
because of mistake or accident or other innocent reason.
Lesser Included Offenses
FELONS CARRYING A CONCEALED WEAPON OR POSSESSING
FIREARM/AMMUNITION/ELECTRIC WEAPON OR DEVICE—790.23
CATEGORY ONE CATEGORY TWO FLA....
...3d 720],
and 2018.
10.15(a) POSSESSION OF [A FIREARM] [AN ELECTRIC WEAPON OR
DEVICE] [AMMUNITION] OR [CARRYING A CONCEALED WEAPON]
BY A PERSON UNDER THE AGE OF 24 WHO HAS BEEN FOUND
DELINQUENT OF AN OFFENSE WHICH WOULD BE A FELONY IF
COMMITTED BY AN ADULT
§
790.23(1)(b) or (d), Fla....
...ded Offenses
CARRYING A CONCEALED WEAPON OR POSSESSING
FIREARM/AMMUNITION/ELECTRIC WEAPON OR DEVICE BY A
PERSON UNDER THE AGE OF 24 WHO HAS BEEN FOUND
DELINQUENT OF AN OFFENSE WHICH WOULD BE A FELONY IF
COMMITTED BY AN ADULT– 790.23(1)(b) or (d) Fla....
CopyPublished | Florida 1st District Court of Appeal
...er the trial court
erred in denying his pre-trial motion to dismiss based on Weeks v. State, 39 Fla. L.
Weekly D35 (Fla. 1st DCA Dec. 26, 2013). We affirm.
Kraay was charged with possession of a firearm by a convicted felon in
violation of section 790.23(1), Florida Statutes (2012)....
...s
was erroneous because Weeks was binding on the trial courts of this district from
the date the opinion was issued. 1 However, the trial court’s ruling was correct
because, contrary to the argument in the motion to dismiss, Weeks did not hold
section 790.23 facially unconstitutional; it merely declared the statute
1
See Rock v....
...er
automatic rifle. Accordingly, Weeks does not apply to this case.
AFFIRMED.
VAN NORTWICK and MAKAR, JJ., CONCUR.
2
See Weeks v. State, 39 Fla. L. Weekly D1798, D1800 (Fla. 1st DCA Aug. 26,
2014) (revised opinion) (“In sum, we hold section 790.23 is unconstitutionally
vague as to antique replica firearms because the phrases ‘firearm’ and ‘antique
firearm’ defined in chapter 790, do not give adequate notice of what constitutes a
permissible replica of an antique firearm which may be lawfully carried by a
convicted felon ....
...13, 2014) (“Because the constitutional concern addressed in [the
original opinion in] Weeks appears to arise only in cases involving firearms that
arguably might be regarded as a replica of an antique firearm, the issue does not
result in the facial unconstitutionality of section 790.23(1).”); Walker v....
CopyPublished | Florida 2nd District Court of Appeal | 1995 Fla. App. LEXIS 9946, 1995 WL 561233
...However, we find that the trial court erred in imposing certain conditions of probation and community control. We strike that portion of condition (4) of the appellant’s order of probation and order of community control which prohibits the carrying of weapons other than those enumerated in section 790.23, Florida Statutes (1991), since it is a special condition of probation that was not orally pronounced at *812 sentencing....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 13081, 2015 WL 5125425
...or the
ammunition. As the firearm was loaded with the ammunition, Appellant
was simultaneously in possession of both, and therefore there was no
fundamental error. We thus affirm his conviction and sentence.
Appellant was charged with violating section 790.23, Florida Statutes
(2013), because he “did unlawfully own or have care, custody, possession
or control of a any [sic] firearm, ammunition, or electric weapon or device,
after being convicted of a felony.” The charge was based upon events
which occurred when officers with the St....
...We conclude based upon this evidence that the court
did not err in denying Appellant’s motion for judgment of acquittal.
Appellant also claimed in his motion for judgment of acquittal that the
state failed to prove that the firearm was not an antique, manufactured
before 1918. Section 790.23, Florida Statutes (2013), makes it illegal for
a convicted felon to possess “any firearm, ammunition, or electric weapon
or device, or to carry a concealed weapon, including a tear gas gun or
4
...
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 21683
firearm by a convicted felon in violation of section 790.-23, Florida Statutes (1981). We reverse and remand
CopyPublished | Florida 1st District Court of Appeal | 1995 Fla. App. LEXIS 9244
...The court ruled that “because all of the violations of law arose out of a single episode, an adjudication of delinquency based upon all three cannot stand.” A.J.H.,
652 So.2d at 1280. Accordingly, we affirm the order of adjudication and disposition for M.P.C.’s violation of section
790.23(1)(a), but remand with directions that the trial court strike the remaining two adjudications and dispositions. AFFIRMED in part; REMANDED with directions. W. SHARP and GRIFFIN, JJ., concur. . §
790.23(1)(a), Fla.Stat....
CopyPublished | Florida 2nd District Court of Appeal | 2002 Fla. App. LEXIS 14521, 2002 WL 31250565
...lorida Rule of Criminal Procedure 3.800(a). Mr. Súber argues that the portion of his sentence that imposes a three-year minimum mandatory term of imprisonment for possession of a firearm as a convicted felon is illegal. He believes that language in section
790.23, Florida Statutes (2000), somehow overrides the mandatory sentence provided in section
775.087(2)(l)(r), Florida Statutes (2000)....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 7717, 1990 WL 149802
COPE, Judge. Defendant John Lane pled nolo conten-dere to the charges of carrying a concealed firearm in violation of subsection
790.01(2), Florida Statutes (1989), and possession of a firearm by a convicted felon in violation of section
790.23, Florida Statutes (1989), with a reservation of a right to appeal the denial of the motion to suppress the firearm....
CopyPublished | Florida 1st District Court of Appeal | 1992 Fla. App. LEXIS 10504, 1992 WL 276139
...State v. Betancourt,
552 So.2d 1107 (Fla.1989). Any departure from guidelines must be accompanied by contemporaneous written findings. Ree v. State,
565 So.2d 1329 (Fla.1990). Petition granted. DANAHY, A.C.J., and SCHOONOVER and PARKER, JJ., concur. . §
790.23, Fla.Stat....
CopyPublished | Supreme Court of Florida
...This instruction was adopted in 1981 and was amended in 1989_[
540 So. 2d
1205] and 2018.
10.15 FELONS CARRYING A CONCEALED WEAPON OR POSSESSING
[A FIREARM]/_[AMMUNITION]/_[AN ELECTRIC WEAPON OR
DEVICE]
§
790.23, Fla....
...luntarily and intentionally and not
because of mistake or accident or other innocent reason.
Lesser Included Offenses
FELONS CARRYING A CONCEALED WEAPON OR POSSESSING
FIREARM/AMMUNITION/ELECTRIC WEAPON OR DEVICE—790.23
CATEGORY ONE CATEGORY TWO FLA....
...3d 720],
and 2018.
10.15(a) POSSESSION OF [A FIREARM] [AN ELECTRIC WEAPON OR
DEVICE] [AMMUNITION] OR [CARRYING A CONCEALED WEAPON]
BY A PERSON UNDER THE AGE OF 24 WHO HAS BEEN FOUND
DELINQUENT OF AN OFFENSE WHICH WOULD BE A FELONY IF
COMMITTED BY AN ADULT
§
790.23(1)(b) or (d), Fla....
...ded Offenses
CARRYING A CONCEALED WEAPON OR POSSESSING
FIREARM/AMMUNITION/ELECTRIC WEAPON OR DEVICE BY A
PERSON UNDER THE AGE OF 24 WHO HAS BEEN FOUND
DELINQUENT OF AN OFFENSE WHICH WOULD BE A FELONY IF
COMMITTED BY AN ADULT– 790.23(1)(b) or (d) Fla....
CopyPublished | Florida 5th District Court of Appeal | 2008 Fla. App. LEXIS 16560, 2008 WL 4753852
...he elements of the crime). The undisputed facts in this case are that Clark was a felon, had a Bushmaster knife in his possession, and the knife was under the seat. Thus, the State demonstrated sufficient facts to support all elements required under section 790.23(1)....
CopyPublished | District Court of Appeal of Florida | 1975 Fla. App. LEXIS 15495
...74-786, it is apparent that McPhall’s conviction for at *868 tempted carrying of a concealed firearm (Count 4) was simply a facet of the criminal act for which he was convicted under Count 5, i. e., possession of a firearm by a convicted felon. Fla.Stat. § 790.23 (1973)....
CopyPublished | Florida 1st District Court of Appeal
...the result of a judicial
determination or error”). Appellant’s written judgment reflects
that possession of a firearm by a convicted felon is a third-degree
felony. However, possession of a firearm by a convicted felon is a
second-degree felony. § 790.23(3), Fla....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 12004, 1997 WL 655958
WEBSTER, Judge. Appellant was charged with possession of a firearm by a violent career criminal, in violation of section 790.235(1), Florida Statutes (1995). Following the denial of his motion to dismiss the information on the ground that section 790.235(1) is unconstitutional, appellant entered a plea of no contest, reserving the right to appeal the adverse ruling on the motion. Appellant contends that the statute is unconstitutional because it is susceptible to “arbitrary and capricious” application, and because it is impermissibly vague. We affirm. To the extent relevant, section 790.235(1) reads: Any person who meets the violent career criminal criteria under s....
...ies a concealed weapon, including a tear gas gun or chemical weapon or device, commits a felony of the first degree.... The term “violent career criminal” is clearly (and extensively) defined in section
775.084(l)(c). As with statutes generally, section
790.235(1) is presumed to be constitutional, and the burden rests on appellant to establish the contrary....
...Appellant’s first argument appears to be that the statute is unconstitutional because it is susceptible to “arbitrary and capricious” application, presumably by prosecutors, who will have the option to charge a defendant pursuant to that statute, rather than pursuant to section 790.23, which makes it a second-degree felony for previously convicted felons “to have in [their] care, custody, possession, or control any firearm or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or ch...
...withstand constitutional scrutiny under a void-for-vagueness challenge if it is specific enough to give persons of common intelligence and understanding adequate warning of the proscribed conduct.” Sanicola v. State,
384 So.2d 152, 153 (Fla.1980). Section
790.23, which like section
790.235, makes it a crime for a convicted felon “to own or to have in his or her care, custody, possession, or control any firearm or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device,” has been previously held not to be unconstitutionally vague. Ransom, v. Wainwright,
553 F.2d 900 (5th Cir.1977). Section
790.235 merely provides for a more severe penalty if the convicted felon also “meets the violent career criminal criteria under s.
775.084(1)(e).” Those criteria are clearly delineated in section
775.084(1)(c). Therefore, to determine whether one is susceptible to prosecution for a violation of section
790.235, one need only read that section in conjunction with section
775.084(1)(c)....
CopyPublished | Florida 2nd District Court of Appeal | 1996 Fla. App. LEXIS 11076, 1996 WL 604489
PER CURIAM. Jake T. Owens appeals his judgment and sentence for fifteen counts of possession of a firearm by a convicted felon in violation of section 790.23, Florida Statutes (1991)....
CopyPublished | Florida 2nd District Court of Appeal
...Tallahassee, and Gillian N. Leytham,
Assistant Attorney General, Tampa, for
Appellee.
ALTENBERND, Judge.
J.J. appeals an order withholding adjudication of delinquency based on
two offenses: delinquent in possession of a firearm in violation of section
790.23(1)(b),
Florida Statutes (2013), and introduction of a firearm into a detention facility in violation
of section
951.22, Florida Statutes (2013)....
CopyPublished | Florida 3rd District Court of Appeal
...LINDSEY, J.
Javon Lee Walker was tried and convicted by a jury of his peers for
robbery using a deadly weapon in violation of section
812.13(2)(a), Florida
Statutes (2021), and unlawful possession of a firearm or weapon in violation
of section
790.23(1), Florida Statutes (2021)....
CopyPublished | Supreme Court of Florida
...EEKS,
Respondent.
[September 22, 2016]
CORRECTED OPINION
PARIENTE, J.
The issue raised in this case is whether the “felon-in-possession” statute,
section
790.23, which prohibits convicted felons from possessing “any firearm,” is
unconstitutionally vague with respect to the meaning of a “replica” of an “antique
firearm” as those terms are used in section
790.001(1). The First District Court of
Appeal in Weeks v. State,
146 So. 3d 81 (Fla. 1st DCA 2014), held section
790.23,
Florida Statutes (2012), unconstitutionally vague....
...The First District also certified its decision was in direct conflict
with the decision of the Fifth District Court of Appeal in Bostic v. State,
902 So.
2d 225, 229 (Fla. 5th DCA 2005), review denied,
912 So. 2d 1217 (Fla. 2005),
which concluded that section
790.23 was not unconstitutionally vague....
...antique firearm’s ignition or firing system as its distinctive feature.1 Accordingly,
we approve the First District’s reversal of Petitioner’s conviction for possession of
a firearm by a convicted felon and the vacatur of his sentence, but not its
conclusion that section 790.23 is unconstitutionally vague....
...Weeks, who admitted to having been previously convicted of a felony,
was charged with one count of possession of a firearm by a convicted felon.
Weeks moved to dismiss the charge, arguing that his rifle is a permissible
antique firearm or replica thereof under section 790.23, or in the alternative, that
the felon-in-possession statute is unconstitutionally vague if convicted felons are
prohibited from possessing black-powder rifles....
...Thereafter, Weeks entered a plea of no contest to one count of constructive
possession of a firearm by a convicted felon. The trial court adjudicated Weeks
guilty of the offense and sentenced him to three years’ probation.
Weeks appealed his felon-in-possession conviction, claiming that section
790.23 is unconstitutionally vague....
...the firearm determines whether a firearm qualifies as an ‘antique firearm’ or a
replica thereof,” expressing that “the distinctive feature of an antique firearm as
defined in section
790.001 is the firing system.” Id. at 83, 84. The First District
held that section
790.23 “is unconstitutional with respect to the possession of a
replica of an antique firearm by a convicted felon,” id. at 82, and concluded as
follows:
[W]e hold section
790.23 is unconstitutionally vague as to antique
replica firearms because the phrases “firearm” and “antique firearm”
defined in chapter 790, do not give adequate notice of what constitutes
3....
...d all Florida trial
courts.”
-4-
a permissible replica of an antique firearm which may be lawfully
carried by a convicted felon; therefore, arbitrary and discriminatory
enforcement of section 790.23 may result.
Id....
...The district court therefore reversed Weeks’s conviction, vacated his
sentence, and certified conflict with the decision of the Fifth District in Bostic.
ANALYSIS
The issue presented in this case is whether the felon-in-possession statute,
section
790.23, is unconstitutionally vague with respect to the possession of a
“replica” of an “antique firearm,” as defined in section
790.001(1)....
...tute may be given a fair construction
that is consistent with the federal and state constitutions as well as with legislative
intent.” Heart of Adoptions, Inc. v. J.A.,
963 So. 2d 189, 207 (Fla. 2007) (citation
omitted). In ascertaining whether section
790.23 may be given a fair construction,
we first review the statutory language of the felon-in-possession statute....
...manner that avoids holding it unconstitutionally vague and does not effectively
rewrite the statute. See State v. Stalder,
630 So. 2d 1072, 1076 (Fla. 1994).
The Felon-in-Possession Statute
The felon-in-possession statute, section
790.23, “is intended to protect the
public by preventing the possession of firearms by persons who, because of their
past conduct, have demonstrated their unfitness to be entrusted with such
dangerous instrumentalities.” State v....
...2d 9, 10 (Fla. 1996). The
statute makes it a second-degree felony for a convicted felon to “own or to have in
his or her care, custody, possession, or control any firearm,” unless his or her “civil
rights and firearm authority have been restored.” § 790.23(1)(a), (2), (3), Fla....
...eeks] would be in a
world of hurt if a bear was charging after him to reload.”
The District Court Decisions
The certified conflict decision, in addressing a constitutional vagueness and
overbreadth challenge to section 790.23, concluded that the statute was not
unconstitutionally vague, “because the term ‘replica’ is not so vague as to render
the statute unconstitutional.” Bostic, 902 So....
...sold the rifle to Bostic without the background check
required for the purchase of a firearm,” and “Bostic obtained a permit to legally
hunt with a muzzle loading rifle.” Id.
Judge Sharp noted, however, that “an argument could be made that ‘law’ is
far from settled as to the scope of section 790.23” because of this Court’s decision
in Williams v....
...1986), receded from on other grounds,
Brown v. State,
719 So. 2d 882 (Fla. 1998). Bostic,
902 So. 2d at 231 (Sharp, J.,
dissenting). As Judge Sharp explained, in Williams, this Court affirmed a
defendant’s conviction for possession of a firearm by a convicted felon under
section
790.23 even though the defendant argued that his firearm “was allegedly an
antique or replica.” Id. Our opinion in Williams, Judge Sharp observed, could
lead to confusion over what type of conduct section
790.23 prohibits because
[O]n the one hand, the court in Williams acknowledges that section
790.23 allows a felon to legally possess an antique or replica of an
antique....
...It may be that the Williams court was concerned about
the concealment aspect, but the case nevertheless states the defendant
was convicted of merely possessing a firearm.
Id. at 232.
For reasons similar to those expressed by Judge Sharp, the First District in
Weeks held section 790.23 unconstitutionally vague....
...No such
concern is presented in the case at bar.
Id. The First District in Weeks also addressed this Court’s decision in Williams,
but concluded that the decision was not controlling because
Williams did not consider specifically a challenge to the
constitutionality of section 790.23....
...statute. In short, the statutory term “generate[s] differing reasonable
constructions,” which require application of the rule of lenity. Nettles v. State,
850
So. 2d 487, 494 (Fla. 2008). Accordingly, pursuant to the rule of lenity, we
construe section
790.23 in favor of the reasonable construction advanced by
Weeks.
This Case
In this case, Weeks wanted to go hunting and, with his wife and his father,
researched the law and determined that sections
790.001(1) and
790.001(6)
allowed him to possess a replica of a 1918 black powder muzzleloader rifle with a
percussion cap ignition system under section
790.23....
...firearm from the
statutory exemption.
CONCLUSION
In light of the foregoing, we approve the First District’s reversal of Weeks’s
conviction and the vacatur of his sentence, but not its conclusion that section
790.23 is unconstitutionally vague....
...2d at 1054, to the
extent that the statutory interpretation in those decisions is inconsistent with this
opinion. Accordingly, Weeks was entitled to the statutory exception of the felon-
in-possession statute because his firearm was a permissible “replica” of an “antique
firearm” under section
790.23 as defined in section
790.001(1).
It is so ordered.
LABARGA, C.J., and POLSTON, and PERRY, JJ., concur.
CANADY, J., concurs with an opinion, in which LABARGA, C.J., and
POLSTON, J., concur.
LEWIS, J., dissents with an opinion,...
...ct in Bostic v. State,
902 So. 2d
225 (Fla. 5th DCA 2005). I also agree with receding from the holding of Williams
v. State,
492 So. 2d 1051, 1054 (Fla. 1986), that the “literal requirement” of “the
antique ‘or replica’ exceptions” to section
790.23’s prohibition on the possession
of firearms by felons is “clearly absurd.”
The proper disposition of this case turns on the definition of “antique
firearm” set forth in section
790.001(1)....
...In my view, such a firearm cannot constitute an antique firearm as defined by
Florida law. Therefore, I respectfully dissent.
Although the type of firing system is certainly relevant to the determination
of whether a given firearm is an antique firearm as defined by sections
790.23 and
790.001(1), Florida Statutes, I do not believe it is dispositive....
...Law Dictionary (10th ed.
2014). A nonlegal dictionary defines “replica” as “an exact copy in all details.”
Replica, Merriam-Webster’s Collegiate Dictionary (10th ed. 1996).5 Thus, even
absent a legislative definition of “replica” in section 790.23, plain language and
common sense dictate that a replica should, at the very least, look like the original
object....
CopyPublished | District Court of Appeal of Florida | 1967 Fla. App. LEXIS 4402
...Chief Judge. Appellant has filed this appeal from an order denying him relief under Criminal Procedure Rule No-. 1, F.S.A. ch. 924 Appendix. Samuel Johnson, defendant, was charged by information with felonious possession of firearms, in violation of Section 790.23,....
...be ordered by the trial court.” Thus, it becomes apparent that the key phrase in Rule 1 is the right to be released from custody. In the instant case, the defendant is in custody as a result of the felonious possession of firearms in violation of Section 790.23, Fla.Stats., and he is attacking that custody....
CopyPublished | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 18097, 2012 WL 4897046
...McFadden,
772 So.2d 1209, 1214 (Fla.2000) (“Defining ‘conviction’ [as used in section
90.610(1), Florida Statutes (1997),] to require the adjudication of guilt is consistent with this Court’s jurisprudence.”); State v. Snyder,
673 So.2d 9, 10 (Fla.1996) (“[A]n individual is ‘convicted’ for purposes of section
790.23 [, Florida Statutes (1991),] from the point of being adjudicated guilty.”); Delta Truck Brokers, Inc....
CopyPublished | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 15554, 2009 WL 3278722
...He argues the trial court erred when it denied his motion to keep from the jury the fact he had previously been convicted of a felony. We perceive no error in denial of the motion, and affirm the conviction. Before his trial for unlawful possession of a firearm by a person previously convicted of a felony, in violation of section 790.23(1)(a), Florida Statutes (2007), his counsel filed a motion in limine and offer of stipulation....
...becausehe maintainsletting *1145 the jury know served no purpose except to suggest a general propensity to commit crimes, concededly an impermissible purpose under section
90.404(2)(a), Florida Statutes (2007). In order to prove that he violated section
790.23(1)(a), Florida Statutes (2007), the state had the burden to prove a prior felony conviction....
CopyPublished | Florida 2nd District Court of Appeal | 1996 Fla. App. LEXIS 10459, 1996 WL 582582
...Further, the first sentence of condition (4) which prohibits Williams from possessing, carrying, or owning firearms obviously applies here because Williams was convicted of a felony, and felons are not permitted to possess, carry, or own firearms. See § 790.23, Fla....
...on four which states: “You will not possess, carry or own any firearms. You will not possess, carry, or own any weapons without first procuring the consent of your officer.” The first sentence of this condition is a valid general condition under section
790.23, Florida Statutes (1991). Fitts v. State,
649 So.2d 300 (Fla. 2d DCA 1995). The portion of the condition that prohibits the carrying of weapons other than those enumerated in section
790.23, was not orally pronounced at sentencing and is stricken....
CopyPublished | Florida 3rd District Court of Appeal | 2003 Fla. App. LEXIS 14821, 2003 WL 22239644
...The evidence at the hearing showed that the defendant had been in possession of a firearm. It is evident that the trial court revoked his probation on the theory that as a convicted felon, it was illegal for the defendant to possess a firearm. See § 790.23, Florida Statutes (2002)....
CopyPublished | District Court of Appeal of Florida
felony if committed by an adult, a violation of section
790.23(1)(b), Florida Statutes (2016); and (2) being
CopyPublished | Florida 4th District Court of Appeal
...should affirm appellant’s convictions for aggravated assault and
aggravated battery with a deadly weapon because the jury could have
found that he constructively possessed a firearm, thereby making the
verdict not truly inconsistent. For example, under section 790.23,
Florida Statutes (2018), the felon in possession statute, felons cannot
“own or [] have in [their] care, custody, possession, or control any
firearm.” But “[a] jury can infer constructive possession [for a felon in
possession ch...
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 17719
...Although Landrum discusses the charge of possession of a weapon by a convicted *864 felon, there is no reason that the proof for a conviction in this case should be any different. Both crimes require proof of an underlying crime, compare section
943.0435(l)(a)l.a., Florida Statutes (2016) with section
790.23(1), Florida Statutes (2016), and therefore, the same criteria should be required to satisfy the element....
CopyPublished | Florida 2nd District Court of Appeal
...person who committed the crime, except in those uncommon circumstances where
proof of identity is necessary to show that a crime was committed at all."
272 So. 3d at
832 (emphasis added). Ultimately, N.G.S. concluded that the offense of a delinquent
carrying a concealed weapon under section
790.23(1), Florida Statutes (2016), was one
such "uncommon circumstance" because identifying the accused's status as a juvenile
delinquent was a requisite element of that criminal offense....
CopyPublished | District Court of Appeal of Florida | 1976 Fla. App. LEXIS 15657
...On August 25, 1972, appellant was charged by a three count information with (1) robbery in violation of Section 813.011, Florida Statutes (1971), (2) carrying a concealed firearm in violation of Section 790.-01(2), Florida Statutes (1971), and (3) possession of a firearm by a convicted felon in violation of Section 790.23, Florida Statutes (1971)....
CopyPublished | Florida 4th District Court of Appeal | 1995 Fla. App. LEXIS 11933, 1995 WL 675335
...l condition eight ordered that appellant not “visit places where controlled substances are unlawfully sold, dispensed or used.” Appellant is a convicted felon, and as such he is prohibited by law from owning, possessing or controlling a firearm. § 790.23, Fla....
CopyPublished | District Court of Appeal of Florida | 1973 Fla. App. LEXIS 6367
PER CURIAM. Appellant was convicted of violating, F. S., Section 790.23, F.S.A., which makes unlawful the “care, custody, possession or control” of any firearm by a convicted felon....
CopyPublished | Florida 1st District Court of Appeal | 1998 WL 821771
...oking at the "plain language of the statute" and concluding that the statute "reveal[ed] no heightened or particularized, i.e., no specific intent." Id. at 920. This same reasoning holds true in the instant case. Examination of the plain language of section 790.23(1)(a) with the aid of the Linehan explanation cited above reveals clearly that the offense in this case is not a specific intent crime....
CopyPublished | District Court of Appeal of Florida | 1968 Fla. App. LEXIS 4850
PEARSON, Judge. Davis appeals from a judgment of conviction of unlawful possession of a pistol by a convicted felon in violation of § 790.23 (1), Fla.Stat., F.S.A. 1 He urges us to reverse the judgment because the state did not prove that he violated § 790.23(1), since the record shows conclusively that he was in possession of a revolver, not a pistol. We hold that the word “pistol” in § .790.23(1) is a generic word which encompasses the entire class of firearms designed either by the manufacturer or the possessor to be held and fired by one hand....
...See, too, the definition of the word “pistol” in Volume VIII of the Oxford English Dictionary at page 907: “A small fire-arm with a more or less curved stock, adapted to be held, and fired by, one hand.” We therefore cannot hold that, within the intendment of § 790.23(1 ), a pistol is not a pistol when it is a revolver....
CopyPublished | District Court of Appeal of Florida | 1966 Fla. App. LEXIS 4514
...Judge. The appellant Robert Lee Davis was informed against in Dade County. The information was in two counts. The charge-contained in the first count was for possession of a pistol after previously having-been convicted of a felony, in violation of' § 790.23 Fla.Stat., F.S.A....
...d in the information, which was a material ■element of the crime charged in count one. For the reasons stated the judgment appealed from is reversed, and the cause is remanded with directions to discharge the ■defendant. Reversed and remanded. . § 790.23, Fla.Stat., F.S.A., in pertinent part provides: “ (1) It is unlawful for any person who has been convicted of a felony in the courts of this state, or convicted of an offense in any other state, territory or country which if committed in...
CopyPublished | Florida 5th District Court of Appeal
...n his person nor had ready
access to it with the intent to use it during the trafficking offense. As such, the jury did not
necessarily determine that Joy did not “possess” a firearm to dismiss the severed felon-
in-possession charge.
Section 790.23(1), Florida Statutes (2014), makes it a second-degree felony for a
convicted felon to own a firearm or to have one in his care, custody, possession, or
control....
...and can be actual or
constructive. Fla. Std. Jury Instr. (Crim.)
10.15; see generally Daniels v. State,
718 So.
2d 1274, 1275 (Fla. 2d DCA 1998) (explaining that state must prove either constructive
or actual possession to establish violation of section
790.23). Specifically, under section
4
790.23, “actual possession” requires only that the firearm is “so close as to be within ready
reach and is under the control of the person,” and does not require that it be carried on
the person or with an intent to use it during the commission of any other crime. Fla. Std.
Jury Instr. (Crim.)
10.15.
Because “possession” is defined differently in the jury instructions for violations of
sections
775.087 and
790.23, the jury did not necessarily determine the issue of
possession under section
790.23 in Joy’s favor....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 4873, 1995 WL 258877
...State, 20 Fla.L.Weekly D467, — So.2d — (Fla. 2d DCA Feb. 15, 1995). Lastly, we remind the trial court for purposes of resentencing that the portion of probation condition (4) which prohibits the carrying of weapons other than those enumerated in section 790.23, Florida Statutes (1993), must be orally pronounced and that the remainder of the condition which implies that a felon can possess weapons otherwise prohibited with the consent of his probation officer is not proper....
CopyPublished | Florida 5th District Court of Appeal
...that the trial court erred under these facts in its recalculation
of her RAI by scoring her single act of illegal possession of a firearm under two different
categories. In a similar case, M.W. v. Department of Juvenile Justice,
15 So. 3d 782 (Fla.
1st DCA 2009), the court stated:
A violation of section
790.23(1)(b) is a second-degree felony, and unless
otherwise specified, the RAI assesses eight points where the most serious
current offense is a second-degree felony....
CopyPublished | Supreme Court of Florida | 1976 Fla. LEXIS 4360
...V § 3(b)(1) (1975), we have jurisdiction. Wooten v. State,
332 So.2d 15 (Fla.1976); Singletary v. State,
322 So.2d 551 (Fla.1975); Hurley v. State,
322 So.2d 506 (Fla.1975). We affirm. The information filed against appellant accused him of a violation of Section
790.23, Florida Statutes (1975), which provides: (1) It is unlawful for any person who has been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felony or convicted of an offen...
...Appellant contends that the statute is defective because subsection two excludes persons convicted of felonies, whose civil rights have been restored, from the prohibition in subsection one, against possession of firearms by felons. A predecessor 3 of present Section 790.23 exempted from its proscription not only convicted felons whose civil rights had been restored but also persons convicted of “antitrust violation, unfair trade practice, restraints of trade, nonsupport of dependents, bigamy, or other similar offense.” Fla.Laws, ch. 69-306 § 9 (1969) as amended Fla.Stat. § 790.23(2) (1975)....
...To the same effect, we earlier held in Nelson v. State,
195 So.2d 853 (Fla.1967), as follows: The statutory prohibition of possession of a pistol by one convicted of a felony, civil rights not restored, is a reasonable public safeguard. We uphold the validity of §
790.23 At 855-6....
...The body of the motion to dismiss reads, as follows: COMES NOW the Defendant, J. T. CROSSLEY, by and through his undersigned attorney, and respectfully moves this Honorable Court to dismiss the charges against him in the above entitled cause, and as good and sufficient grounds therefor, says: 1. That Chapter 790.23, Florida Statutes, the statutory basis for the subject charge, is vague and ambiguous, requiring persons to guess at its meaning and application, at their peril, hence is unconstitutional....
...If, then, the statute applies only to those persons who are devoid of Civil Rights, there must be some constitutional or statutory authority for divesting one of these mysterious Civil Rights, the possession of which is apparently inherent in citizenship. . Fla.Laws, ch. 69-306 § 9 (1969) as amended Fla.Stat. § 790.23 (1975).
CopyPublished | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 7305, 2010 WL 2077157
...t's care, custody, possession or control firearm, when at said time and place, the defendant had previously been found to have committed a delinquent act that would be a felony if committed by an adult of this court of this state ... in violation of s. 790.23(1)." Although an argument can be constructed that it is not clear from the information on this count whether Williams' general plea of guilty was for possession of a firearm by a convicted felon under section 790.23(1)(a) or by a delinquent under section 790.23(1)(b) due to the absence of a second parenthetical in the charging document the State's theory, as we understand it we find this argument to be unpersuasive....
...ppeal, but before the filing of the initial brief. If no order on the motion is filed by the trial court within sixty days, the motion is deemed denied. Fla. R.Crim. P. Rule 3.800(b)(1)(B). We refer to such a denial here as a "technical denial." [2] Section 790.23(1) of the Florida Statutes reads in relevant part: 790.23....
CopyPublished | Florida 4th District Court of Appeal
...Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Jessica L.
Underwood, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
We affirm the defendant’s conviction for violating section 790.23,
Florida Statutes (2018), including the defendant’s argument that he was
unconstitutionally convicted by a six-person jury, as opposed to a twelve-
person jury, on the authority of our decision in Guzman v....
CopyPublished | District Court of Appeal of Florida | 1975 Fla. App. LEXIS 14858
OWEN, Chief Judge. Appellant was convicted of both counts of a two-count information charging (1) unlawfully shooting a firearm within an occupied building, §
790.19 F.S., and (2) possession of a firearm by a convicted felon, §
790.23 F.S....
CopyPublished | Florida 1st District Court of Appeal | 2012 WL 1836699, 2012 Fla. App. LEXIS 8026
THOMAS, J. Appellant was convicted and sentenced under section 790.23, Florida Statutes, for possession of a firearm by a convicted felon....
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 1311, 1987 Fla. App. LEXIS 8380
...nt of attempted murder in violation of sections
782.04 and
777.04, Florida Statutes, one count of kidnapping in violation of sections
787.01 and
775.087, Florida Statutes, and one count of possession of a firearm by a convicted felon in violation of section
790.23, Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 1310, 1987 Fla. App. LEXIS 8422
firearm by a convicted felon, in violation of section
790.23, Florida Statutes. Count one was severed and
CopyPublished | Florida 5th District Court of Appeal
...EDWARDS, C.J., and WALLIS and LAMBERT, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
2 See § 790.23(3), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...then confessed that he got the
gun in St. Petersburg and brought it into the car with him that night. The State later filed
a delinquency petition alleging that N.G.S. committed two delinquent acts: (1)
delinquent in possession of a firearm, see § 790.23(1)(b), Fla....
...in the car had been adjudicated delinquent of felony offenses and were under the age of
twenty-four, such that no matter who possessed or carried the gun, the delinquent acts
had been committed or (2) that N.G.S. himself possessed and carried the firearm. See
§ 790.23(1)(b)....
...be "uncontradicted or overwhelming," to prove that a crime has in fact happened. Allen,
335 So. 2d at 825 (quoting Tucker v. State,
59 So. 941, 941 (Fla. 1912)).
So what is the corpus delicti in this case? Both offenses of which N.G.S.
was found delinquent were based on section
790.23(1)(b), which provides in relevant
part as follows:
(1) It is unlawful for any person to own or to have in
his or her care, custody, possession, or control any
firearm, ammunition, or electric...
...If these were the facts and the State had sufficiently proved them, this would be
a no-brainer affirmance. It is entirely logical to infer from the facts that someone in the
car possessed the gun Detective Dodson found under the seat. And if everyone in the
car was a delinquent described by section 790.23(1)(b), then it is equally logical to infer
that an individual described by the statute possessed a firearm....
...serious bodily injury where independent evidence showed that all of the occupants of
the vehicle that caused the crash had been drinking and were impaired).
Here, however, the only occupant of the car the State showed to have
been covered by section 790.23(1)(b) was N.G.S....
CopyPublished | Florida 2nd District Court of Appeal
...N.G.S. then confessed that he got the gun in St. Petersburg and brought it into the car with him that night. The State later filed a delinquency petition alleging that N.G.S. committed two delinquent acts: (1) delinquent in possession of a firearm, see § 790.23(1)(b), Fla....
...had been adjudicated delinquent of felony offenses and were under the age of twenty-four, such that no matter who possessed or carried the gun, the delinquent acts had been committed or (2) that N.G.S. himself possessed and carried the firearm. See § 790.23(1)(b)....
...g," to prove that a crime has in fact happened. Allen ,
335 So.2d at 825 (quoting Tucker v. State ,
64 Fla. 518 ,
59 So. 941 , 941 (1912) ). So what is the corpus delicti in this case? Both offenses of which N.G.S. was found delinquent were based on section
790.23(1)(b), which provides in relevant part as follows: (1) It is unlawful for any person 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 w...
...If these were the facts and the State had sufficiently proved them, this would be a no-brainer affirmance. It is entirely logical to infer from the facts that someone in the car possessed the gun Detective Dodson found under the seat. And if everyone in the car was a delinquent described by section 790.23(1)(b), then it is equally logical to infer that an individual described by the statute possessed a firearm....
...ce with serious bodily injury where independent evidence showed that all of the occupants of the vehicle that caused the crash had been drinking and were impaired). Here, however, the only occupant of the car the State showed to have been covered by section 790.23(1)(b) was N.G.S....
CopyPublished | Florida 5th District Court of Appeal | 1993 WL 153755
...Accordingly, as in Ashley, the cause is remanded to the trial court for resentencing under the sentencing guidelines. CONVICTIONS AFFIRMED; CAUSE REMANDED FOR RESENTENCING. COBB, HARRIS and GRIFFIN, JJ., concur. NOTES [1] §
812.13(2)(a), Fla. Stat. [2] §
790.23, Fla....
CopyPublished | Florida 3rd District Court of Appeal
...It subsequently filed a nolle prosequi
memorandum and the case was administratively closed.
Several months later, a warrant, unaccompanied by any charging
document, issued for the arrest of Francois for the charge of possession of
a firearm by a convicted felon, in violation of section 790.23(1), Florida
Statutes....
CopyPublished | Florida 2nd District Court of Appeal | 2006 Fla. App. LEXIS 7252, 2006 WL 1301662
...Based on the State’s confession of error, we reverse Fowler’s conviction and sentence and remand for the trial court to enter a judgment and impose a sentence for the lesser-included offense of carrying a concealed weapon by a convicted felon under section 790.23, Florida Statutes (2003)....
CopyPublished | Court of Appeals for the Eleventh Circuit
...§ 921(a)(20).
Florida’s felon-in-possession statute prohibits a person from “own[ing] or [ ]
hav[ing] in his or her care, custody, possession, or control any firearm . . . if that
person has been . . . [c]onvicted of a felony in the courts of [Florida].” Fla. Stat.
§
790.23(1).
A year ago, we certified a question to the Florida Supreme Court asking
whether that State treats a guilty plea for a felony with adjudication withheld as a
“conviction” for purposes of §
790.23(1)(a). United States v. Clarke,
780 F.3d
1131 (11th Cir. 2015) (per curiam) (Clarke I). We revisit this appeal with the
benefit of that court’s clear response: “[F]or purposes of section
790.23(1)(a), a
guilty plea for a felony for which adjudication was withheld does not qualify as a
‘conviction.’” Clarke v....
...We have held that the “appropriate source of applicable Florida law [for
evaluating the term ‘conviction’ in § 922(g)(1)] would be that surrounding
Florida’s own unlawful possession of firearms by a felon statute, Fla. Stat. Ann.
§ 790.23.” United States v....
...society do not require that the
defendant suffer the penalty imposed by law.” Id. at 1114–15. Now that the
Florida Supreme Court has made clear that Jenkins’s guilty plea with adjudication
withheld is not a “conviction” for purposes of § 790.23(1)(a), his § 922(g)(1)
conviction cannot stand.
II.
The Eleventh Circuit has contrary precedent on this issue....
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 15877
because of the limitations placed upon it by Section
790.23, Florida Statutes (1977). Accordingly, the
CopyPublished | Florida 1st District Court of Appeal
...On appeal from the Circuit Court for Gadsden County.
Ronald W. Flury, Judge.
May 1, 2024
PER CURIAM.
AFFIRMED. See Edenfield v. State,
379 So. 3d 5 (Fla. 1st DCA
2023) (upholding the facial constitutionality of §
790.23(1)(a),
Florida Statutes), review denied, No....
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 1094, 1985 Fla. App. LEXIS 13763
restored his civil rights as to that conviction. Section 790.-23, Florida Statutes (1983), excepts from liability
CopyPublished | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 3513, 2016 WL 899224
...A police officer arrested Mr.
Rodriguez-Aguilar and discovered a loaded firearm in his pants pocket during a search
incident to the arrest. The State filed a two-count information against Mr. Rodriguez-
Aguilar, charging felon in possession of a firearm as count I, see § 790.23(1), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2012 WL 1057635, 2012 Fla. App. LEXIS 4999
...ense was based almost exclusively on Reed’s testimony. Given that Reed’s necessity defense hinged on the credibility of his testimony, we cannot conclude that the error was harmless. REVERSED and REMANDED. ORFINGER, C.J. and COHEN, J., concur. . § 790.23(l)(a), Fla....
CopyPublished | Florida 1st District Court of Appeal | 1995 Fla. App. LEXIS 3235, 1995 WL 132001
...al court at sentencing. The first portion of condition four prohibits Mitchell from possessing a firearm. Since that condition merely proscribes conduct which Mitchell, as a convicted felon, is already legally prohibited from engaging in pursuant to section 790.23(1), Florida Statutes (1993), such condition “is a general condition that is valid and need not have been pronounced in open court.” Tomlinson v....
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 3894, 1999 WL 162145
...d that in assessing the additional 18 points the trial court relied on earlier decisions released by this court. JUDGMENT AFFIRMED; SENTENCE VACATED; and CAUSE REMANDED for RESENTENCING. THOMPSON, J., concurs. W. SHARP, J., dissents, with opinion. . § 790.23, Fla....
CopyPublished | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 4196, 2015 WL 1334325
PER CURIAM. Appellant Bryan Greenlee was convicted of four counts of possession of “any firearm” by a convicted felon under section 790.23(1), Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal | 2001 Fla. App. LEXIS 3472
...5) Not possess or carry any weapon unless permission is obtained from the court. In W.J., appellant challenged the condition “not possess any firearm or weapons.” The court held that although former section 39.054 did not address firearms or weapons, section 790.23 makes it unlawful to possess any firearm or electric weapon or to carry a concealed weapon if the person has been convicted of a delinquent act that would be a felony if committed by an adult....
CopyPublished | Florida 4th District Court of Appeal | 43 A.L.R. 4th 785, 1983 Fla. App. LEXIS 18903
rule is inapplicable to prosecutions under Section
790.23, Florida Statutes, where, *323as here, the
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Oct 22, 2024
...firearms if they are violent, mentally ill, or otherwise unfit to oper-
ate a firearm. For instance, a firearm generally may not be pos-
sessed or used under Florida law by (1) any individual who has ever
been convicted of a felony, Fla. Stat. § 790.23(1)(a); (2) anyone who
is subject to an injunction against committing acts of domestic vi-
olence, id. § 790.233; (3) minors under the age of eighteen, unless
engaged in certain activities or supervised by an adult, id....
CopyPublished | Florida 5th District Court of Appeal | 2015 WL 1071158
DCA 2013), for example, the court construed section
790.23(1), Florida Statutes (2011), which prohibited
CopyPublished | Florida 3rd District Court of Appeal | 2013 WL 950543, 2013 Fla. App. LEXIS 3938
...te record provided, to resolve the claim, we reverse and remand for a determination by the trial court. In 1995, Shelton was tried and convicted for the offense of possession of a firearm by a convicted felon, a second degree felony, in violation of section 790.23(1)(a), Florida Statutes (1995)....
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 2693, 1999 WL 128818
...be afforded deference on appeal. Hall v. Daee,
602 So.2d 512, 516 (Fla.1992) (citing Reed v. State,
560 So.2d 203, 206 (Fla.), cert. denied,
498 U.S. 882 ,
111 S.Ct. 230 ,
112 L.Ed.2d 184 (1990)). AFFIRMED. GRIFFIN, C.J., and PETERSON, J., concur. . §
790.23(3), Fla....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 1385, 1989 Fla. App. LEXIS 3191, 1989 WL 59489
...We conclude that Wimberly and Wilcott are controlling. Accordingly, we reverse *331 Dillard’s conviction for battery under section 951.075, and remand the cause for a new trial. Because Dillard’s conviction for the battery is reversed, we quash his sentence for carrying a firearm under section 790.23, and remand for resentencing on that charge because it was dependent upon the battery sentence and scoresheet. Unless sentenced for both offenses at the same time, on remand the court must use separate scoresheets for sentencing. Fla. R.Crim.P. 3.701.d. REVERSED; SENTENCE QUASHED; REMANDED. DAUKSCH and GOSHORN, JJ., concur. . § 790.23, Fla.Stat....
...We assume the sentencing judge employed a combined scoresheet, although we were only *330 furnished with separate ones, because Dillard's score for the firearm charge (even assuming a one bracket jump up for violation of probation) would not justify a twelve year sentence. . § 790.23, Florida Statutes (1985).
CopyPublished | Florida 2nd District Court of Appeal
...(footnote omitted) (quoting Tucker v. State,
59 So. 941, 941 (Fla. 1912)).
A.P. was charged with violating section
790.22(3), Florida Statutes (2015),
which makes it a crime for a minor to possess a firearm except under certain
enumerated circumstances and section
790.23(1)(b), which makes it a crime for "any
person to own or to have in his or her care, custody" a firearm if they have been found
"to have committed a delinquent act that would be a felony if committed by an adult and
such person is un...
CopyPublished | Florida 2nd District Court of Appeal
...(footnote omitted) (quoting Tucker v. State ,
64 Fla. 518 ,
59 So. 941 , 941 (1912) ). A.P. was charged with violating section
790.22(3), Florida Statutes (2015), which makes it a crime for a minor to possess a firearm except under certain enumerated circumstances and section
790.23(1)(b), which makes it a crime for "any person to own or to have in his or her care, custody" a firearm if they have been found "to have committed a delinquent act that would be a felony if committed by an adult and such person is under...
CopyPublished | District Court of Appeal of Florida | 1974 Fla. App. LEXIS 7044
...The trial judge, as stated, sentenced appellant to a term of thirty (30) years for the offense of possession of a firearm by a convicted felon. A study of the applicable statute leads us to conclude that this sentence was in excess of the sentence permissible under Section
790.23, Florida Statutes, F.S.A., as provided in Sections
775.082,
775.083 or
775.084, supra. Any person found guilty of violating Section
790.23, supra, is guilty of a felony in the second degree....
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 1616, 1985 Fla. App. LEXIS 15070
FRANK, Judge. Timothy Averette was charged with possession of a firearm by a convicted felon in violation of section 790.23, Florida Statutes....
CopyPublished | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 10357
...State,
442 So.2d 385 (Fla. 2d DCA 1983) (holding firearm is “on or about one’s person” if it is in close proximity to him within his easy reach). AFFIRMED. ORFINGER, J., concurs. MONACO, J., dissents with an opinion. . §
790.01(2), Fla. Stat. (2004). . §
790.23(l)(b), Fla....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 6785, 1995 WL 370812
...denied,
626 So.2d 210 (Fla.1993) (voluntary guilty plea plus agreement on sentence waived any double jeopardy objection as to convictions and sentences). AFFIRMED. THOMPSON, J., concurs. GRIFFIN, J., concurs specially, with opinion. . §
812.014(2)(c)4, Fla.Stat. (1991). . §
812.014(2)(b), Fla.Stat. (1991). . §
790.23, Fla.Stat....
CopyPublished | Florida 3rd District Court of Appeal | 2007 Fla. App. LEXIS 9498, 2007 WL 1755741
...ion For a New Trial and/or for Judgement [sic] of Acquittal” (“Motion for New Trial”). Finding no error, we affirm. On September 25, 1992, after a jury trial, Perez was convicted of possession of a firearm by a convicted felon, in violation of section 790.23(1), Florida Statutes (1991), and sentenced to a term of thirty years as a habitual felony offender....
CopyPublished | Florida 2nd District Court of Appeal | 2000 Fla. App. LEXIS 7422, 2000 WL 770507
...Antonio Broome appeals his convictions for aggravated assault, a third degree felony violation of section
784.021, Florida Statutes (1995); shooting at a dwelling, a second degree felony violation of section
790.19; and possession of a firearm by a convicted felon, a second degree felony violation of section
790.23....
CopyPublished | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 8777, 2011 WL 2305624
...The State argues on appeal that the trial court erred in dismissing the Information, *655 which charged Appellee/Cross-Appellant, Walker Lanier Whaley, with four counts of possession of a firearm by a convicted felon and one count of possession of ammunition by a convicted felon. We reject the State's argument. Section 790.23(1)(a), Florida Statutes, the statute alleged to have been violated, provides in part that it is unlawful for a convicted felon to possess "any firearm or ammunition." Moreover, Appellee/Cross-Appellant was allegedly in possession of each of the firearms and the ammunition at the same time....
...amended information charging one count of possession of a firearm by a convicted felon and one count of possession of ammunition by a convicted felon. See Boyd v. State,
17 So.3d 812, 814-18 (Fla. 4th DCA 2009) (noting that "ammunition" is listed in section
790.23(1)(a) after the word "any" and reversing and remanding for the trial court to vacate either the conviction for possession of a firearm by a convicted felon or the conviction for possession of ammunition by a convicted felon); see also Francis v....
CopyPublished | Florida 4th District Court of Appeal | 1983 Fla. App. LEXIS 20515
the written judgment specifies a violation of Section
790.23, Florida Statutes (1981). We amend the judgment
CopyPublished | Court of Appeals for the Eleventh Circuit
...7
firearm statute regardless of appeal status); but see Snyder v. State,
650 So.2d 1024
(Fla. 2d DCA 1995) (holding that while awaiting appeal of an adjudicated sentence,
a defendant is not considered “convicted” for purposes of section
790.23 (felon in
possession of firearm))....
...1991).
9
Viewing the term “conviction” as context specific, the more appropriate source
of applicable Florida law would be that surrounding Florida’s own unlawful
possession of firearms by a felon statute, Fla. Stat. Ann. §
790.23. The case law in
this area is limited but varied. Burkett held that “a defendant is convicted, for
purposes of [section
790.23] when he is adjudicated guilty in the trial court.”
518
So.2d at 1366 (referring to whether a pending appeal creates doubt as to whether he
was convicted at trial). However, in two cases where defendants were awaiting appeal
at the time of their section
790.23 violation, the courts chose to construe the meaning
of conviction in the manner most favorable to the defendants, thus holding that the
two were not “convicted” until disposition on appeal....
...Paralleling more
closely the case at hand is Castillo v. State, in which the Third District of Appeals for
Florida concluded:
While the defendant in this case had a prior criminal record, the prior
proceedings had resulted in the withholding of adjudication. For purposes
of [section 790.23], we construe ‘conviction’ to mean an adjudication of
guilt....
CopyPublished | Court of Appeals for the Eleventh Circuit | 2001 U.S. App. LEXIS 11572
...in possession of
a firearm statute regardless of appeal status); but see Snyder v. State,
650 So.2d 1024 (Fla. 2d DCA 1995)
(holding that while awaiting appeal of an adjudicated sentence, a defendant is not considered "convicted" for
purposes of section
790.23 (felon in possession of firearm))....
...context-specific analysis.
Viewing the term "conviction" as context specific, the more appropriate source of applicable Florida
law would be that surrounding Florida's own unlawful possession of firearms by a felon statute, Fla. Stat.
Ann. §
790.23. The case law in this area is limited but varied. Burkett held that "a defendant is convicted,
for purposes of [section
790.23] when he is adjudicated guilty in the trial court."
518 So.2d at 1366 (referring
to whether a pending appeal creates doubt as to whether he was convicted at trial). However, in two cases
where defendants were awaiting appeal at the time of their section
790.23 violation, the courts chose to
construe the meaning of conviction in the manner most favorable to the defendants, thus holding that the two
were not "convicted" until disposition on appeal....
...Paralleling more closely the case at hand is Castillo v. State, in which the
Third District of Appeals for Florida concluded:
While the defendant in this case had a prior criminal record, the prior proceedings had resulted in the
withholding of adjudication. For purposes of [section 790.23], we construe "conviction" to mean an
adjudication of guilt....
CopyPublished | Florida 5th District Court of Appeal | 2017 WL 2888972, 2017 Fla. App. LEXIS 9747
...access to it with the intent to use it during the trafficking offense. As such, the jury did not
necessarily determine that Joy did not “possess” a firearm to dismiss the severed felon-
in-possession charge.
4
Section 790.23(1), Florida Statutes (2014), makes it a second-degree felony for a
convicted felon to own a firearm or to have one in his care, custody, possession, or
control....
...and can be actual or
constructive. Fla. Std. Jury Instr. (Crim.)
10.15; see generally Daniels v. State,
718 So.
2d 1274, 1275 (Fla. 2d DCA 1998) (explaining that state must prove either constructive
or actual possession to establish violation of section
790.23). Specifically, under section
790.23, “actual possession” requires only that the firearm is “so close as to be within ready
reach and is under the control of the person,” and does not require that it be carried on
the person or with an intent to use it during the commission of any other crime. Fla. Std.
Jury Instr. (Crim.)
10.15.
Because “possession” is defined differently in the jury instructions for violations of
sections
775.087 and
790.23, the jury did not necessarily determine the issue of
possession under section
790.23 in Joy’s favor....
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 8181, 1992 WL 178954
...hes were made for the same purpose. See Phillips v. State, 625 P.2d 816 (Alaska 1980); Ferguson v. Caldwell, 233 Ga. 887 , 213 S.E.2d 855 (1975); State v. Douglas, 123 Wis.2d 13 , 365 N.W.2d 580 (1985). AFFIRMED. DAUKSCH and PETERSON, JJ., concur. . § 790.23, Fla.Stat....
CopyPublished | Florida 5th District Court of Appeal
...llee.
July 3, 2025
KILBANE, J.
Dimitric Ellis (“Ellis”) appeals his convictions for possession
of a firearm by a convicted felon (Count 1) and possession of
ammunition by a convicted felon (Count 2)—both under section
790.23(1), Florida Statutes (2023). On appeal, Ellis asserts the
trial court erred in denying his motions for judgment of acquittal1
and that his convictions violated double jeopardy because they
emanated from virtually simultaneous possession under section
790.23(1)....
...Ellis timely appealed.
Analysis
“It is unlawful for any person to own or to have in his or her
care, custody, possession, or control any firearm, ammunition, or
electric weapon or device, . . . if that person has” a felony
conviction. § 790.23(1), (1)(a), (e), Fla. Stat. (2023) (emphasis
added). As the statute uses the word “any” before a disjunctive list
of items a felon may not possess, more than one conviction for
possession under section 790.23(1) would violate double jeopardy
principles....
...Garner, Reading Law: The Interpretation of
Legal Texts 119 (2012) (noting disjunctive list of prohibitions,
conveyed by use of or rather than and, is violated when any single
prohibited act is performed).
This Court has held that dual convictions for possession of a
firearm and ammunition under section 790.23(1) violate double
jeopardy where a felon possessed a loaded firearm....
CopyPublished | Florida 5th District Court of Appeal | 2002 Fla. App. LEXIS 10671, 2002 WL 1723548
THOMPSON, C.J. Kenneth D. Kluth appeals his conviction for possession of a firearm by a convicted felon in violation of section 790.23(e), Florida Statutes (1999)....
CopyPublished | Court of Appeals for the Eleventh Circuit | 2001 U.S. App. LEXIS 16811
...Cook, 490
3
The six counts were charged in four different informations. Appellant pled guilty to the following
six counts: burglary (Fla.Stat. §
810.02), use of a firearm in the commission of a felony (Fla.Stat. §
790.07(2)), aggravated assault (Fla.Stat. §
784.021), felonious possession of a firearm (Fla.Stat. §
790.23), grand theft auto (Fla.Stat....
CopyPublished | Court of Appeals for the Eleventh Circuit
...Appellant
pled guilty to the following six counts: burglary (Fla. Stat. §
810.02), use of a
firearm in the commission of a felony (Fla. Stat. §
790.07(2)), aggravated assault
(Fla. Stat. §
784.021), felonious possession of a firearm (Fla. Stat. §
790.23), grand
theft auto (Fla....
CopyPublished | Florida 2nd District Court of Appeal | 1982 Fla. App. LEXIS 20423
...State,
233 So.2d 634 (Fla.1970), that the state is not bound by the defendant’s offer to stipulate to essential elements of the crime, stating that exclusion of such relevant evidence is left to the discretion of the trial court based on traditional grounds. Section
790.23(1), Florida Statutes (1977), prohibiting the possession of a firearm by a convicted felon, makes a prior conviction an essential element of the crime....
CopyPublished | Florida 2nd District Court of Appeal
...court considered together as 3(b) and 3(d). We also remand for correction of a
scrivener's error in the judgment.
Raysor is challenging his conviction for possession of a firearm by a
convicted felon. The jury found him guilty of that offense as a violation of section
790.23(1)(a), Florida Statutes (2014), and specifically found that Raysor was in actual
possession of a firearm....
...claims 3(b) and 3(d) and remand for further proceedings.
We note a scrivener's error in the written judgment that should be
addressed on remand. Raysor was charged with and found guilty of possession of a
firearm by a convicted felon, a violation of section
790.23(1)(a). Raysor acknowledges
in his rule 3.850 motion that his conviction was for being in possession as a convicted
felon. The written judgment cites the proper statute, section
790.23(1)(a), but the
judgment reflects a conviction for possession of a firearm by a delinquent, a violation of
section
790.23(1)(b) that is not subject to a minimum mandatory under section
775.087(2)(a)....
CopyPublished | Florida 5th District Court of Appeal | 1984 Fla. App. LEXIS 14060
...n of probation. We therefore vacate the sentences and remand for resentencing. SENTENCE VACATED AND CAUSE REMANDED FOR RESENTENCING. COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur. . §
831.01, Fla.Stat. (1981). . §
831.02, Fla.Stat. (1981). . §
790.23, Fla.Stat....
CopyPublished | Florida 3rd District Court of Appeal | 2013 Fla. App. LEXIS 11231, 2013 WL 3723213
...Instead, we ourselves hereby vacate the conviction and sentence below and directly order, as permitted by section
924.35, Florida Statutes (2009), that Hearns be found guilty and convicted of the lesser included offense of possession of a firearm by a convicted felon, contrary to section
790.23, and sentenced with a habitual violent felony offender [HVFO] enhancement under section
775.084(4)(b)(2) (which requires “only” two offenses) to a maximum sentence of thirty years with a minimum mandatory term of ten years....
...defendant having been previously convicted of at least one of the aforestated felonies within the past five years, or having been released from serving a prison sentence on one of the aforestated felonies within the past five years, in violation of s. 790.235 Fla....
...3d DCA 2005) ("Following Perkins, with no record evidence that Hearns' conduct against a law enforcement officer was a forcible felony, it cannot be used as a qualifying prior for purposes of VCC sentencing.”) . State v. Ferguson,
691 So.2d 578, 578 (Fla. 2d DCA 1997) ("However, unlike section
775.084(l)(c), section
790.235 is a substantive offense statute, not a sentencing statute”); Jackson v. State,
729 So.2d 947, 950 (Fla. 1st DCA 1998) (“In section
790.235, the legislature has created a new substantive offense which does not apply retroactively to earlier offenses but operates prospectively.”)....
CopyPublished | Florida 2nd District Court of Appeal | 1999 Fla. App. LEXIS 9529, 1999 WL 533592
...The state has requested that we certify conflict in this case. We grant the request, withdraw our previous opinion, and substitute the following. Telfa Dean Hall appeals his conviction and sentence for possession of a firearm by a convicted felon in violation of section 790.23, Florida Statutes (1997)....
CopyPublished | District Court of Appeal of Florida | 2001 Fla. App. LEXIS 9701, 2001 WL 787968
...An officer responding to the Green residence, based on a complaint by a neighbor that Green had threatened to shoot her and then appeared in his yard with a brown and black rifle, arrested Green for having “care, custody, possession or control” of a firearm as a convicted felon. See section 790.23 Fla....
CopyPublished | Florida 5th District Court of Appeal
...Todd Joseph Akers (Appellant) brings this appeal pursuant to
Anders v. California,
386 U.S. 738 (1967), following his entry of a
negotiated plea of guilty to the charge of possession of a firearm by
a convicted felon with actual possession of a firearm, in violation
of sections
790.23(1)(a) and
775.087(2)(a)(1), Florida Statutes
(2002). We affirm but remand for the trial court to cite to section
790.23(1)(a), Florida Statutes, and to designate the crime to which
Appellant pled was a second-degree felony....
CopyPublished | Florida 3rd District Court of Appeal
...Reserving his right to appeal the
trial court’s dispositive order, Sheppard then pleaded guilty to both charges
and received a sentence of three years of probation.
Sheppard timely appealed.
2
See §
790.01(2), Fla. Stat. (2022).
3
See §
790.23(1)(a), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2005 Fla. App. LEXIS 38, 2005 WL 17755
...Since appellant filed his motion for return of property, appellant’s felony convictions have been affirmed by this court. As a convicted felon, appellant is no longer entitled to own or to have in his care, custody, possession, or control any firearms. § 790.23(l)(a), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2001 Fla. App. LEXIS 796, 2001 WL 76320
ALLEN, J. The appellant in this direct criminal appeal challenges his conviction pursuant to section 790.235, Florida Statutes (1997)(violent career criminal carrying a concealed weapon)....
...c) pretrial motion to dismiss the information and again in a motion for judgment of acquittal at trial. The appellant is entitled to relief pursuant to only the second motion because the first motion was not under oath as specified by rule 3.190(c). Section 790.235, Florida Statutes (1997), makes it a first degree felony for “any person who meets the violent career criminal criteria under s....
...Because the appellant did not meet the violent career criminal criteria, an element of the offense was not established and the conviction must be reversed. But the proper remedy is not discharge of the appellant because the information alleged the elements of the lesser included offense specified in section 790.23, Florida Statutes (1998)(convicted felon carrying a concealed weapon), and the evidence produced at trial provided sufficient foundation for a conviction of that offense. The appellant’s conviction is accordingly reversed and this case is remanded for the trial court to enter judgment and impose sentence for violation of section 790.23....
CopyPublished | Florida 3rd District Court of Appeal
...We reverse
Harris’ conviction and sentence and remand to the trial court for entry of a
judgment of acquittal on this charge.
I.
Harris was charged with one count of felon in possession of a firearm
in violation of section 790.23(1), Florida Statutes....
CopyPublished | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 553, 2010 WL 323045
...Browder pleaded guilty to the charges, specifically reserving his right to challenge the denial of his dispositive motion to dis *151 miss the concealed weapon count. We reverse that conviction. Browder, a convicted felon, was charged with carrying a concealed weapon — a folding knife — in violation of section 790.23(1), Florida Statutes (2008)....
CopyPublished | District Court of Appeal of Florida | 1969 Fla. App. LEXIS 6398
...Worse yet, since the defect in the prior conviction was denial of a right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.” (Emphasis added.) In Davis v. State, Fla.App.1966,
191 So.2d 440 , the Court of Appeal for the Third District held that F.S. Section
790.23, F.S.A., which makes it unlawful to possess a pistol after a felony conviction contemplates an organically valid prior conviction. This decision was affirmed by the Florida Supreme Court in State v. Davis, Fla.1967,
203 So.2d 160 . In its opinion the Florida Supreme Court points out that F.S. Section
790.23, F.S.A., is not a recidivist statute....
CopyPublished | District Court of Appeal of Florida | 1969 Fla. App. LEXIS 6411
REED, Judge. This is an appeal from a judgment and sentence entered in the Criminal Court of Record for Orange County, Florida, under an information charging the defendant-appellant with a violation of Section 790.23, F.S.1967, F.S.A., by the possession of a pistol after a felony conviction....
CopyPublished | Florida 2nd District Court of Appeal | 1996 Fla. App. LEXIS 486, 1996 WL 27897
...We find no error in the asserted impermissible admission of evidence, and we affirm the judgment and sentence. Certain special conditions of probation imposed at sentencing, however, were not orally pronounced and must be stricken: (1) portions of condition number four that prohibit carrying of weapons not enumerated in section 790.23, Florida Statutes (1993); (2) that portion of condition number seven prohibiting the defendant from using intoxicants to excess; and (3) that portion of condition twelve requiring the defendant to pay for breathalyzer, blood, or urine tests, unless the fee is waived by an officer....
CopyPublished | Florida 6th District Court of Appeal
...), a convicted felon, carried a concealed
machete into a Wal-Mart store where he was subsequently arrested by law
enforcement. The State thereafter charged him by information with carrying a
concealed weapon by a convicted felon in violation of section 790.23, Florida
Statutes (2023).
Shortly after the State filed its information, the defendant filed a motion under
Florida Rule of Criminal Procedure 3.190(c)(4) to dismiss this count....
...manner,” the State could not establish a prima facie case.
1
The information also charged the defendant with committing a petit theft,
which is not at issue in this appeal.
2
Ivory’s motion to dismiss did not raise any constitutional challenge to section
790.23, Florida Statutes.
2
The State timely appealed....
...as statutory interpretation, our standard of review is de novo. See Alachua County
v. Watson,
333 So. 3d 162, 169 (Fla. 2022); State v. Den Besten,
374 So. 3d 874,
876 (Fla. 6th DCA 2023).
II.
To prove that the defendant violated section
790.23, Florida Statutes, the State
bears the burden of showing that at the time the defendant was carrying a concealed
weapon, he was a convicted felon....
...VI.
We therefore hold that the trial court erred in granting the defendant’s motion
to dismiss. Whether his machete is a deadly weapon that could not be carried
concealed by a convicted felon under section 790.23, Florida Statutes, is for the jury
to decide....
CopyPublished | Florida 3rd District Court of Appeal
...The State subsequently filed a single-count
information charging Woods with possession of a firearm by a convicted
felon. The charging document alleged he “did unlawfully and feloniously own
or have in [his] care, custody, possession, or control a firearm . . . in violation
of [sections] 790.23(1) and ....
...en originally imposed.
Scott v. State,
326 So. 2d 165, 166 (Fla. 1976). Here, Woods was originally
charged with possession of a firearm by a convicted felon, a second-degree
felony, generally punishable by up to fifteen years of imprisonment. See §
790.23(1), Fla....
...2d 643, 645 (Fla.
5th DCA 2008) (“It has long been Florida law that technical deficiencies or
defects in form may be waived by failure to make timely objection or by a
plea to the merits.”) (citations omitted); see also Birch v. State,
248 So. 3d
1213, 1218-19 (Fla. 1st DCA 2018) (“[T]he body of the charge cited section
790.23(1)(a), the felon in possession statute....
CopyPublished | District Court of Appeal of Florida | 1970 Fla. App. LEXIS 7012
SPECTOR, Judge. Appellant challenges the sufficiency of the evidence to support his conviction in a jury trial on the charge of possession of a firearm by a convicted felon as proscribed by Section 790.23, Florida Statutes, F.S.A....
CopyPublished | Florida 3rd District Court of Appeal
...For the following reasons, we
reverse Presha’s conviction and sentence and remand to the trial court for
entry of a judgment of acquittal on this charge.
In October 2021, the State of Florida charged Presha with one count
of felon in possession of a firearm in violation of Florida Statute section
790.23(1), and one count of unlawful discharge of a firearm in public in
violation of Florida Statute section
790.15(1), arising from events that took
place on August 12, 2021.1 At Presha’s trial, before the jury was brought into
the co...
...1960)).
To prove the charge of possession of a firearm by a convicted felon,
the State is required to prove beyond a reasonable doubt that 1) defendant
had been convicted of a felony, and 2) after the conviction, defendant
knowingly owned or had in his care, custody, possession, or control a
firearm. § 790.23, Fla....
CopyPublished | Florida 4th District Court of Appeal | 2014 Fla. App. LEXIS 392, 2014 WL 169787
...position that the shooting was not an accident; however, if Petitioner did shoot the victim by accident, he still might have attempted to discard the gun immediately, knowing his status as a convicted felon precluded him from legally possessing one. § 790.23(l)(a), Fla....
CopyPublished | Florida 1st District Court of Appeal | 1995 Fla. App. LEXIS 119, 1995 WL 10502
...tences. AFFIRMED as Modified. DAUKSCH, GOSHORN and PETERSON, JJ., concur. . §
782.04, Florida Statutes (1989): . §
812.13(1), (2)(a), Florida Statutes (1989). . §
790.07(2), Florida Statutes (1989). . §
784.045(l)(a)l, Florida Statutes (1989). . §
790.23, Florida Statutes (1989).
CopyPublished | Florida 5th District Court of Appeal
...less point
to such a law that would pass muster under the Second
Amendment. 1 Cf. Simpson v. State,
368 So. 3d 513, 525 (Fla. 5th
1 We are aware that Florida law now prohibits Nelson from
possessing firearms due to his felony convictions. See §
790.23(1)(a), Fla....
CopyPublished | District Court of Appeal of Florida | 1966 Fla. App. LEXIS 5802
PER CURIAM. The defendants were charged and convicted of having in their possession a sawed off shotgun in violation of § 790.23 Fla....
CopyAgo (Fla. Att'y Gen. 2005).
Published | Florida Attorney General Reports
...Tunnell Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Dear Commissioner Tunnell: On behalf of the Florida Department of Law Enforcement and the Criminal Justice Standards and Training Commission, you ask substantially the following question: Does the prohibition in section 790.23 , Florida Statutes, against a person who has been "[f]ound, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age" having "in his or her...
...According to your letter, Florida's training schools for law enforcement recruits are encountering otherwise qualified applicants who are under the age of 24 and who previously had been adjudicated delinquent for offenses that, had the recruits been adults at the time, would have been felonies. Section 790.23 (1), Florida Statutes, provides in pertinent part: "It is unlawful for any person 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 weap...
...gas gun or chemical weapon or device, if that person has been: * * * (b) Found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age[.]" Pursuant to section 790.23 (3), Florida Statutes, "[a]ny person who violates this section commits a felony of the second degree, punishable as provided in s....
...as a felony shall disqualify a person from lawfully possessing a firearm until such person reaches 24 years of age." You question whether there is any mechanism that would allow such a person to ever become certified. Prior to its amendment in 1999, section 790.23 (2) provided: "This section shall not apply to a person convicted of a felony whose civil rights and firearm authority have been restored, or to a person found to have committed a delinquent act that would be a felony if committed by a...
...dult with respect to which the jurisdiction of the court pursuant to chapter 985 has expired." 3 Section 39 of Chapter 99-284, Laws of Florida, amended the above section to delete the language relating to persons who have committed a delinquent act. Section 790.23 (2), Florida Statutes, now provides that the section "shall not apply to a person convicted of a felony whose civil rights and firearm authority have been restored." The 1999 legislation also deleted the language in section 790.23 (1)(a) relating to persons found to have committed a delinquent act and created a new section (1)(b), which contains the same language as is currently contained in s. 790.23 (1)(b), Fla....
...squalification from firearm possession for a person found to have committed a delinquent act that would be a felony if committed by an adult exists only until the person reaches the age of 24. Accordingly, I am of the opinion that the prohibition in section 790.23 , Florida Statutes, against a person who has been "[f]ound, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age" having "in his or her...
...943.131 (2), Fla. Stat. 2 See e.g., Young v. Progressive Southeastern Insurance Company ,
753 So.2d 80 (Fla. 2000); Dobbs v. Sea Isle Hotel,
56 So.2d 341 (Fla. 1952). 3 See State v. Brown ,
745 So.2d 1006 (Fla. 2nd DCA 1999), concluding that based on s.
790.23 (2), Fla. Stat. (1997), the determination as to whether the defendant could be charged with a violation of s.
790.23 depended on whether the juvenile court's jurisdiction over the defendant's prior delinquent act had expired prior to him being found in possession of a firearm. 4 See s. 39, Ch. 99-284, Laws of Fla., which deleted the language "or found to have committed a delinquent act that would be a felony if committed by an adult" from s.
790.23 (1)(a) and created a new s.
790.23 (1)(b) providing: "Found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age." 5 Section 38, Ch....
...6 House of Representatives, as revised by the Committee on Law Enforcement and Crime Prevention, Final Analysis on HB 349, June 15, 1999. And see Senate Staff Analysis and Economic Impact Statement on SB 1768 (passed as 04-286, Laws of Florida), March 9, 2004, which subsequently amended s. 790.23 to include ammunition within the prohibition, and which states in part: "When a felon has his or her civil rights and firearm authority restored, the prohibition no longer applies....
CopyPublished | District Court of Appeal of Florida | 1972 Fla. App. LEXIS 7162
maximum sentence of 5 years, and of violating Section
790.23, Florida Statutes, F.S.A., receiving the maximum
CopyPublished | Florida 1st District Court of Appeal
...considering whether a law conflicts with the right to keep and bear
arms.
TANENBAUM, J., concurring in result.
Shawn Gulley is a convicted felon. On review in this appeal is
a judgment of conviction for his possessing a firearm while in that
status, in violation of section 790.23(1)(a), Florida Statutes....
...Bruen,
597 U.S. at 80–81
(Kavanaugh, J., concurring) (highlighting point that Supreme
Court made in Heller and McDonald that the Second Amendment
does not reach prohibitions against convicted felons possessing
firearms).
Gulley, then, cannot claim that section
790.23(1)(a) deprives
felons of a fundamental liberty interest without due process—the
liberty to possess firearms (à la the so-called “substantive due
process” analysis)—because, as the Supreme Court repeatedly has
recognized, only law-abiding citizens have that liberty under the
Second Amendment....
...”);
De Veau v. Braisted,
363 U.S. 144, 158–60 (1960) (cataloging
various civil “disqualification[s] of convicted felons”).
I in turn agree with Judge Long that “Heller, McDonald, and
Bruen expressly permit” the prohibition found in section
790.23(1)(a)....
CopyPublished | Florida 4th District Court of Appeal
...Ashley Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
KUNTZ, J.
Shermaine Jermon Lowe appeals his conviction and sentence after a
jury found him guilty of violating section 790.23(1)(a), Florida Statutes
(2019), a statute that makes it unlawful for a felon to have a firearm in
their care, custody, possession, or control....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 1218
...is imposed. The holding of A.B.C. does not require that this condition be orally imposed. See Jaworski v. State,
650 So.2d 172 (Fla. 4th DCA1995). 4. Not possess any firearms or weapons. Although section 39.054 does not address firearms or weapons, section
790.23, Florida Statutes (1995), makes it unlawful for a person to possess any firearm or electric weapon or to carry a concealed weapon if the person has been convicted of a delinquent act that would be a felony if committed by an adult....
CopyPublished | Florida 4th District Court of Appeal
...21001938CF10A.
Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public
Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Senior Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Appellant was convicted of a violation of section 790.23(1), Florida
Statutes (2021), prohibiting possession of a firearm by a convicted felon.
We affirm as to all issues raised, including upholding the constitutionality
of the statute....
CopyPublished | Florida 2nd District Court of Appeal | 2014 WL 562901, 2014 Fla. App. LEXIS 2028
NORTHCUTT, Judge. When Mike Musallam pleaded no contest to charges of felon in possession of a firearm, § 790.23(a), Fla....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 869, 1990 WL 11686
PER CURIAM. Reversed and remanded for a new trial. The trial court erroneously refused to instruct the jury or permit witnesses to be questioned about a defense to the charge. See section
790.001(1)(6), Florida Statutes (1988); section
790.23, Florida Statutes (1988); Morgan v....
CopyPublished | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 1766, 2016 WL 519614
...2d 793, 794 (Fla. 1st DCA 1995).
Nevertheless, defense counsel did not challenge the sufficiency of the allegation. On
appeal, the State argues that the possession by Mr. McCarron—a convicted felon—of
the knife in his pants pocket constituted a violation of section 790.23(1)(a), Florida
Statutes (2013). However, the State did not make this argument in the trial court.
Furthermore, the trial court did not make a finding that Mr. McCarron had violated
section 790.23(1)(a).
-5-
Ms....
...The trial court's findings of fact were limited to Mr. McCarron's possession of the knives
and the Samurai swords. The trial court did not find that Mr. McCarron's conduct
amounted to a concealed carry of the knife found in his pocket or that he had violated
section 790.23(1)(a).
Defense counsel did not argue that the State had failed to prove a new
law violation....
...As previously noted, Mr. McCarron's possession of
9
We do not address the issue of whether the evidence was sufficient for
the trial court to find that Mr. McCarron's possession of the knife in his pants pocket was
a violation of section 790.23(1)(a).
- 11 -
these items was not alleged in the affidavit for violation of probation....
...3d 874, 876-77 (Fla.
4th DCA 2012); Brook v. State,
999 So. 2d 1093, 1096-97 (Fla. 5th DCA 2009); Russ v.
State,
304 So. 2d 481, 481 (Fla. 1st DCA 1974). Mr. McCarron's possession of the
knife in his pants pocket in the immediate vicinity of his residence was arguably a
violation of section
790.23(1)(a)—if at all—only because he was a convicted felon....
CopyPublished | Florida 2nd District Court of Appeal | 2008 Fla. App. LEXIS 1052, 2008 WL 268935
...On counts one through sixty-seven, Mr. Ferrentino pleaded guilty to trafficking in hydromorphone pursuant to section
893.135(l)(c)(l)(a), Florida Statutes (1991). On count sixty-eight, he pleaded guilty to possession of a firearm by a convicted felon pursuant to section
790.23, Florida Statutes (1991)....
...See Baker v. State,
941 So.2d 419, 420 (Fla. 2d DCA 2006). On the other hand, the trial court did err when it imposed the identical fine on count sixty-eight. Mr. Ferrentino was found guilty of possession of a firearm by a convicted felon pursuant to section
790.23, which does not authorize imposition of a fine....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 2659, 1988 Fla. App. LEXIS 5388, 1988 WL 129542
SHARP, Chief Judge. Earnest Dickerson was originally charged with aggravated battery in violation of section
784.045(l)(b), and possession of a firearm by a felon in violation of section
790.23, Florida Statutes (1987)....
CopyPublished | Court of Appeals for the Eleventh Circuit
...State Information
On October 19, 2004, Digsby was arrested and charged by information with
aggravated battery with great bodily harm and discharge of a firearm, in violation
of Fla. Stat. §§
784.045(1)(a),
775.087(1) and (2) (Count 1); possession of a
firearm by a convicted felon, in violation of Fla. Stat. §§
790.23 and
775.087(2)
(Count 2)1 ; and possession of less than 20 grams of marijuana, in violation of Fla.
Stat....
...of a firearm was “an essential
element” of his conviction for felon-in-possession-of-a-firearm. Ohayon,
483 F.3d
at 1286. Possession of a firearm was certainly an essential element of Digsby’s
conviction in the second trial. See Fla. Stat. §
790.23 (defining crime of
possession of a firearm by a convicted felon)....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 12067, 1991 WL 254229
...AFFIRMED in part; four sentences VACATED; and REMANDED. DAUKSCH and PETERSON, JJ., concur. . Anders v. California,
386 U.S. 738 ,
87 S.Ct. 1396 ,
18 L.Ed.2d 493 (1967). . §
831.01,- Fla.Stat. (1989). . §
831.02, Fla.Stat. (1989). . §
810.02(2), Fla.Stat. (1989). . §
812.019(1), Fla.Stat. (1989). . §
790.23, Fla.Stat....
CopyPublished | Florida 5th District Court of Appeal
dispositive motion to dismiss, where he alleged that section
790.23(2)(a), Florida Statutes (2017), unconstitutionally
CopyPublished | Florida 2nd District Court of Appeal | 2004 Fla. App. LEXIS 20009, 2004 WL 3008918
...In this case, the State argues that the court erred in dismissing the felon-in-possession charge because the question of whether Chambers knowingly possessed a firearm by preconceived design was not necessarily decided by the jury’s verdict on the attempted murder charge. We agree. Chambers was charged under section 790.23(1), Florida Statutes (2000), which makes it a second-degree felony for a convicted felon to own a firearm or to have one in his care, custody, possession, or control....
...s possession of a firearm would be justified and his conduct declared not criminal.” Marrero v. State,
516 So.2d 1052, 1054 (Fla. 3d DCA 1987). The Third District has described this “necessity” or “justification” defense to a violation of section
790.23 as follows: (1) the defendant must be in present, imminent, and impending peril of death or serious bodily injury, or reasonably believe himself or others to be in such ' danger; (2) the defendant must not have intentionally or reckles...
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 13415, 1996 WL 738790
...r lack of jurisdiction. On September 6, 1994, the state charged the appellant with attempted first degree murder with a firearm and possession of a firearm by a convicted felon in violation of sections
782.04 and
777.04, Florida Statutes (1993), and section
790.23(1), Florida Statutes (Supp.1994)....
CopyPublished | District Court of Appeal of Florida | 1995 WL 755132
...ing prior felony convictions be sequential. 8 State v. Barnes,
595 So.2d at 24. AFFIRMED. PETERSON, C.J., and GRIFFIN, J., concur. . §§
893.03(2)(a)4,
893.13(1)(a)1„ Fla.Stat. (1989). . §§
782.04(1)(a)1,
777.04(1),
775.087, Fla.Stat. (1989). . §
790.23, Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1989 Fla. App. LEXIS 7208, 1989 WL 153675
...We reverse and remand with directions that appellant’s application be granted since it is undisputed that appellant’s civil rights were restored in New York and that the offense for which he was convicted would not constitute a felony or cause the loss of his civil rights in Florida. See § 790.23(2), Fla.Stat....
CopyPublished | Court of Appeals for the Eleventh Circuit
...Johnson was ever made aware of the elements
of his prior offense or that it might be a misdemeanor crime of domestic violence
under federal law. And because his misdemeanor conviction did not prohibit Mr.
Johnson from possessing a firearm under Florida law, see Fla. Stat. § 790.23(1)
(2010), Johnson was not advised of his prohibited status when he entered his plea.
His experience stands in contrast to most people who are sentenced for felony
convictions who are advised of their status that prohibits them from poss...
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 16943, 1999 WL 1204818
...y, we cannot say that the error was harmless. The convictions and sentences are reversed and the cause remanded for a new trial. REVERSED and REMANDED for new trial. ANTOON, C.J., and W. SHARP, J., concur. . §
784.045(1)(A)(2), Fla. Stat. (1997). . §
790.23, Fla....
CopyPublished | Florida 5th District Court of Appeal
.... "[T]o a trained and experienced police officer, the smell of cannabis emanating from a person or a vehicle[ ] gives the police officer probable cause to search the person or the vehicle.” State v. Reed,
712 So.2d 458, 460 (Fla. 5th DCA 1998). . §
790.23, Fla....
CopyPublished | Florida 2nd District Court of Appeal | 1995 Fla. App. LEXIS 12894, 1995 WL 739696
...Probation condition four provides, “you will neither possess, carry, nor own any weapon or firearm without first securing the consent of your probation officer.” The portion of this condition that prohibits the carrying of weapons other than those enumerated in section 790.23, Florida Statutes (1993), must be stricken as it was not orally pronounced....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 2715, 1988 Fla. App. LEXIS 5556, 1988 WL 133948
...ed as a felony or convicted of an offense in another state, territory or county, punishable by imprisonment exceeding one year, did own or have in his care, custody, possession or control a certain firearm to wit a rifle, contrary to Florida Statute 790.23....
CopyPublished | Florida 6th District Court of Appeal
...), a convicted felon, carried a concealed
machete into a Wal-Mart store where he was subsequently arrested by law
enforcement. The State thereafter charged him by information with carrying a
concealed weapon by a convicted felon in violation of section 790.23, Florida
Statutes (2023).
Shortly after the State filed its information, the defendant filed a motion under
Florida Rule of Criminal Procedure 3.190(c)(4) to dismiss this count....
...manner,” the State could not establish a prima facie case.
1
The information also charged the defendant with committing a petit theft,
which is not at issue in this appeal.
2
Ivory’s motion to dismiss did not raise any constitutional challenge to section
790.23, Florida Statutes.
2
The State timely appealed....
...as statutory interpretation, our standard of review is de novo. See Alachua County
v. Watson,
333 So. 3d 162, 169 (Fla. 2022); State v. Den Besten,
374 So. 3d 874,
876 (Fla. 6th DCA 2023).
II.
To prove that the defendant violated section
790.23, Florida Statutes, the State
bears the burden of showing that at the time the defendant was carrying a concealed
weapon, he was a convicted felon....
...VI.
We therefore hold that the trial court erred in granting the defendant’s motion
to dismiss. Whether his machete is a deadly weapon that could not be carried
concealed by a convicted felon under section 790.23, Florida Statutes, is for the jury
to decide....
CopyPublished | District Court, M.D. Florida | 1991 U.S. Dist. LEXIS 19678, 1991 WL 322288
...Once Williams informed the officers at 4:15 p.m. that a gun was present in the vehicle, the officers had probable cause to arrest Williams for being a felon in possession of a firearm and to perform a search incident to the arrest. See infra at 1560; Fla.Stat. § 790.23(1) (and accompanying Criminal Pattern Jury Instruction)....
...e state where the arrest occurs. Ker v. California,
374 U.S. 23, 37 ,
83 S.Ct. 1623, 1632 ,
10 L.Ed.2d 726 (1963). 6 Florida law prohibits a convicted felon from having any firearm in his “care, custody, possession, or control____” See Fla.Stat. §
790.23(1) (West.Supp.1991). The Florida Criminal Pattern Jury Instruction for Section
790.23 provides that a person has “possession” over a firearm within the meaning of the statute if the firearm “is in a place over which the person has control”....
...From this information it was reasonable for the officers to conclude that there existed a fair probability that Williams was a convicted felon in possession of a firearm, and that contraband would be found from a search of the truck. The officers thus had probable cause to arrest Williams for violating Fla.Stat. § 790.23(1), and to perform a search of the vehicle incident to the arrest....
CopyPublished | Florida 5th District Court of Appeal
...Appellant’s 30-year sentences
on counts 2–8, therefore, are illegal.
6
Appellant’s 30-year sentence for possession of a firearm by a
convicted felon (count 12) likewise cannot stand. Like the offense
charged in counts 2–8, that offense is a second-degree felony. See
§ 790.23(3), Fla....
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 16388
PER CURIAM. By this interlocutory appeal, the State seeks review of an order of the trial court granting a motion to suppress filed by the defendant, who was charged with possession of a firearm by a convicted felon contrary to F.S. 790.23....
CopyPublished | Florida 1st District Court of Appeal
...After Connecticut restored
the appellant’s civil rights, he moved to Florida. Id. at 537.
Although the appellee issued a concealed weapon permit to the
appellant, it later revoked that permit because he had not sought
restoration of his civil rights in Florida pursuant to section 790.23,
Florida Statutes, which prohibited a convicted felon from carrying
a concealed weapon, unless his civil rights and firearm authority
have been restored....
...1st
DCA 1999). Doyle’s application for a concealed weapon or firearm
permit was denied because he had been convicted of a
misdemeanor in New York that would have been a felony if
committed in Florida. Id. at 354. We reversed based on our
reading of section 790.23(1), Florida Statutes, as prohibiting
weapon possession “by any person who has been actually convicted
of a felony,” and not applying “to misdemeanors that are
committed in a sister state, regardless of whether such
misdemeanors would have constituted felonies if committed in
Florida.” Id....
CopyPublished | Florida 2nd District Court of Appeal | 2008 Fla. App. LEXIS 11836, 2008 WL 2987167
...On remand, the circuit court shall enter an amended judgment and sentence correcting the statutory reference. Mr. Roper need not be present for this correction. Affirmed; remanded with directions. STRINGER and VILLANTI, JJ., Concur. . Anders v. California,
386 U.S. 738 ,
87 S.Ct. 1396 ,
18 L.Ed.2d 493 (1967). . §
790.23(1), Fla....
CopyPublished | Florida 5th District Court of Appeal
...We properly decline Simpson’s
request to certify a question that asks the Florida Supreme Court effectively
to delete a clause from the Florida constitution.
I write separately to address Simpson’s claim that Florida’s felon-in-
possession statute, section 790.23(1)(a), Florida Statutes (2022), facially
violates the Second Amendment....
...2d 853 (Fla.
1967) (per curiam). But he correctly observes that much has changed in the
Second Amendment landscape since Nelson. For the following reasons,
19
Judge Jay and I concur in the rejection of Simpson’s facial challenge to
section 790.23(1)(a).1
I.
In Nelson, the Florida Supreme Court rejected a criminal defendant’s
challenge to the then-effective version of section 790.23, which prohibited
felons from possessing “any pistol, sawed-off rifle or sawed-off shotgun.” 195
So....
...he public by
preventing the possession of firearms by persons convicted of certain crimes
or who are fugitives from justice.” Id. at 855 (citing Cases v. United States,
131 F.2d 916 (1st Cir. 1942)).
The court then turned its gaze back to section
790.23 and quickly
concluded its opinion:
We think the purpose of the Florida Statute is fairly comparable
with that of the Federal Statute. The statutory prohibition of
possession of a pistol by one convicted of a felony, civil rights not
restored, is a reasonable public safeguard. We uphold the
validity of §
790.23 and affirm the judgment appealed from.
Id....
...New York State Rifle & Pistol Ass’n v. Bruen,
142 S. Ct. 2111, 2156 (2022)
(“NYSRPA”) (internal quotation marks omitted).
While the Supreme Court has yet to confront a Second Amendment
challenge to a felon dispossession statute like section
790.23(1)(a), it has
clarified the framework for analyzing Second Amendment claims....
...rejected on constitutional grounds, that rejection surely would provide some
probative evidence of unconstitutionality.” Id.
III.
Nelson stands in tension with these jurisprudential developments. It
reflexively upheld section 790.23 as a “reasonable public safeguard” based
on the State’s interest in protecting the public....
...at 488).
All that said, the U.S. Supreme Court has not weighed a felon-in-
possession ban. Therefore, Nelson remains binding precedent for our court.
But we don’t think Nelson ties our hands here. As recounted above, Nelson
rejected a state constitutional attack on section 790.23, and the defendant
there did not raise a Second Amendment claim....
...2d at 854.
Here, Simpson asserts a Second Amendment claim—a claim not
before the court in Nelson. Because Nelson does not speak to Simpson’s
Second Amendment claim, Simpson raises a matter of first impression.
Accordingly, we will address how the NYSRPA framework applies to section
790.23(1)(a).
A.
At the outset, as a general proposition, the Second Amendment’s plain
text covers the ownership and possession of a firearm by a felon who has
completed his sentence and returned to the community....
...2019) (Barrett, J.,
dissenting). It simply means that the State will have to identify a national
tradition that justifies its disarmament policy.
B.
The search for relevant and probative historical analogues to section
790.23(1)(a) must begin with a consideration of “how and why” the statute
burdens self-defense....
...at 2133.
As for “how,” the statute criminalizes the ownership and possession of
firearms, ammunition, and electric weapons—and the concealed carry of any
30
weapon—by all persons “[c]onvicted of a felony in the courts of this State[.]”
§ 790.23(1)(a)....
...The statute imposes a lifetime ban, does not distinguish
between type or recency of felony convictions, and exempts from its
categorical prohibition only those whose civil rights and firearm authority are
restored or whose minor criminal history records are expunged.
§ 790.23(1)(a), (2).
As for “why,” the statute appears to serve multiple goals....
...In its
application to non-violent felons, it likely advances a different purpose—
perhaps one of disarming those who have shown poor virtue, judgment, or
character by committing offenses sufficiently blameworthy to be deemed
felonies.
The closest and most obvious comparator to section 790.23(1)(a) is its
federal counterpart, 18 U.S.C....
...Analogues that pre-date twentieth-century felon-in-possession bans
present a less precise fit. For one thing, even if the State could point to a
colonial, founding-era, or antebellum felon disarmament regime, it
necessarily would have a narrower scope than section 790.23(1)(a) due to
continuous expansion of the “felony” label....
...Even then, such an interpretation is debatable, see id., and
in any event, lone and transient “outliers” do not establish a national historical
tradition, see NYSRPA,
142 S. Ct. at 2133, 2153, 2156.
36
C.
While it’s clear that section
790.23(1)(a) does not mirror its historical
predicates, it’s equally clear that the statute is facially constitutional.
NYSRPA does not require the State to identify “a historical twin,” but instead
“a well-established and representative historical analogue.” 142 S....
...Stat.
(2023), as well as those who advocate the violent overthrow of our state or
federal governments or the assassination of government officials, see
§
876.02(1), Fla. Stat. (2023). The historical record places beyond any doubt
the lawfulness of disarming traitors and rebels.
Because section
790.23(1)(a) has a variety of valid applications, it
satisfies the standard for facial constitutionality....
...v.
DIRECTV, Inc.,
215 So. 3d 46, 50 (Fla. 2017) (describing the no-set-of-
circumstances test for facial challenges); accord Edenfield v. State,
48 Fla.
37
L. Weekly D1113 (Fla. 1st DCA May 31, 2023) (holding that section
790.23(1)(a) is facially constitutional).
IV.
Having concluded that Simpson’s facial attack on section
790.23(1)(a)
fails, we turn to his alternative request that we certify his question to the
Florida Supreme Court....
...ategories of cases in which the
38
court directly reviews certain trial-court decisions, see art. V, § 3(b)(1),
3(b)(2), 3(b)(5), Fla. Const.).
Even if Simpson had raised his facial challenge to section 790.23(1)(a)
below, such challenges are disfavored vehicles for breaking new
precedential ground....
...Simpson himself—a habitual violent felon now serving a 30-year sentence
for attempted second-degree murder.
If the State can disarm dangerous felons—and it almost certainly can—
Simpson stands near the very front of the queue. His own case presents an
application of section 790.23(1)(a) that survives the NYSRPA framework....
...challenge to 18 U.S.C. § 922(g)(1), the federal felon dispossession statute.
69 F.4th 96. The Court’s forthcoming decision in Rahimi may provide key
guidance to lower courts grappling with post-NYSRPA Second Amendment
challenges to felon dispossession laws like section 790.23(1)(a)....
...at 634–35. Those
regulations that partake in “the historical tradition that delimits the outer
bounds of the right to keep and bear arms” do not infringe the right. NYSRPA,
142 S. Ct. at 2127. As measured against Simpson’s facial challenge, section
790.23(1)(a) is such a regulation.
43
For the foregoing reasons, we concur in the affirmance of Simpson’s
convictions and sentences, as well as the denial of Simpson’s request that
we...
CopyPublished | Court of Appeals for the Eleventh Circuit
... USCA11 Case: 19-11156 Date Filed: 08/04/2021 Page: 2 of 21
Charles Simpson petitions for review of a final order of removal issued by the
Board of Immigration Appeals. The main question presented is whether a conviction
under Fla. Stat. § 790.23(1)(a)—which makes it unlawful for a convicted felon 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 gu...
...Simpson, a native and citizen of the Bahamas, entered the United States
in 1978 as a B-2 tourist visitor. In 1990, he adjusted his status to lawful permanent
resident.
In 2018, Mr. Simpson pled guilty in a Florida court to being a felon in
possession of a firearm, in violation of Fla. Stat. §§
790.23(1) &
775.087(2)(a)(1),
and to the improper exhibition of a weapon, in violation of Fla....
...2105, 2110 (2018) (holding that a notice to appear that does not specify the time
and place of the removal hearing does not comport with 8 U.S.C. § 1229(a)(1), and
consequently is not a notice to appear at all). He also asserted that his 2018
conviction for violating Fla. Stat. § 790.23(1)(a) did not constitute a firearm offense
under 8 U.S.C....
...netheless properly vests
an immigration judge with jurisdiction when it is followed by a notice of hearing
providing that information. See Simpson,
2019 WL 2464457, at *2. Second, the BIA
concluded that Mr. Simpson’s conviction under Fla. Stat. §
790.23(1)(a) constituted
a firearm offense under 8 U.S.C....
...Att’y
Gen.,
953 F.3d 1300, 1303 (11th Cir. 2020). This plenary review applies to both of
Mr. Simpson’s arguments, but we need only discuss whether a conviction for a
1
In reaching its decision, the BIA said that it found no Florida cases answering whether the
prohibited items in §
790.23(1)(a) are elements or means....
...See Simpson,
2019 WL 2464457, at *3.
That observation, as we detail later, was incorrect.
4
USCA11 Case: 19-11156 Date Filed: 08/04/2021 Page: 5 of 21
violation of Fla. Stat. §
790.23(1)(a) constitutes a firearm offense under 8 U.S.C.
§ 1227(a)(2)(C) and 18 U.S.C....
...place of the alien’s
removal hearing), might have on Perez-Sanchez.
5
USCA11 Case: 19-11156 Date Filed: 08/04/2021 Page: 6 of 21
Mr. Simpson was convicted under Fla. Stat. § 790.23(1)(a)....
...e element used in the
[alien’s] case)” categorically fit within the federal definition of that crime. See
George,
953 F.3d at 1304.
In Aspilaire v. U.S. Att’y Gen.,
992 F.3d 1248, 1254 (11th Cir. 2021), we
recently addressed whether §
790.23(1)(a) is categorically overbroad because its
antique firearm exception—as set out in §§
790.001(1) and
790.001(6))—fails to
“include a separate black-powder muzzleloader category” in the way that
§§ 921(a)(3) and 921(a)(16) do....
...lt[ ]”
because “[g]unsmiths cannot freely combine different propellants and ignition
systems[.]” Id. at 1258.
One of the arguments made by Mr. Simpson here is that the different treatment
of antique firearms in §
790.001(1) renders §
790.23(1)(a) categorically overbroad
when compared to §§ 921(a)(3) and 921(a)(16). See Br. for Appellant at 12-13. That
argument is now foreclosed by Aspilaire.
Aspilaire, however, does not completely control this appeal. Mr. Simpson also
argues that §
790.23(1)(a) is overbroad because, unlike § 921(a)(3), it includes
ammunition as a prohibited item. See Br. for Appellant at 11-12. Aspilaire did not
address or resolve that contention, so we need to tackle it here. Moreover, Aspilaire
expressly stated that it was not deciding whether §
790.23(1)(a) is divisible with
respect to the items that a felon may not possess or carry in a concealed manner. See
Aspilaire,
992 F.3d at 1253 (“We express no opinion on the divisibility of the Florida
statute.”). As noted, the BIA found that Mr. Simpson had committed a removable
firearms offense under § 1227(a)(2)(C) of the INA because §
790.23(1)(a) is
divisible with respect to its list of prohibited items, and the government defends the
BIA’s decision on this ground....
...d convincing evidence that an
alien is eligible for removal. See Guillen v. U.S. Att’y Gen.,
910 F.3d 1174, 1179
(11th Cir. 2018) (citing 8 U.S.C. § 1229a(c)(3)(A)).
B
We start with the text of §
790.23(1)(a)....
...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.”
The statutory language and structure make it pretty clear, we think, that
§ 790.23(1)(a) creates two separate crimes—a felon’s possession of a prohibited
item and a felon’s concealed carrying of a prohibited item....
...wer” and carry as “[t]o convey or transport”).
11
USCA11 Case: 19-11156 Date Filed: 08/04/2021 Page: 12 of 21
Second, possession can be open and obvious. The carrying proscribed by
§ 790.23(1)(a), however, must be concealed....
...in such a manner as to conceal the weapon from the ordinary sight of another
person.”). Possessing a prohibited item is therefore different than the concealed
carrying of a prohibited item.
Florida precedent confirms our understanding of § 790.23(1)(a). The Florida
courts to have addressed the issue have all held that § 790.23(1)(a) creates “two
separate crimes....
...4th DCA 2009) (citations omitted).
Accord Williams v. State,
48 So.3d 192, 193-94 (Fla. 2d DCA 2010); Wiggins v.
State,
253 So.3d 1196, 1199 (Fla. 1st DCA 2018). Cf. Clarke v. United States,
184
So.3d 1107, 1108 & n.1 (Fla. 2016) (explaining, in response to a certified question,
that §
790.23(1)(a) prohibits both the possession of, and the concealed carrying of,
a specified prohibited item).
Although §
790.23(1)(a) is generally divisible because it delineates two
different crimes, that is only the beginning of the analysis....
...the statute may be divided
constitutes, by its elements, [the crime defined by federal law].” United States v.
Cabrera-Umanzor,
728 F.3d 347, 352 (4th Cir. 2013).
C
The BIA has recognized that §
790.23(1)(a) is categorically overbroad. See In
re Francis,
2019 WL 3857803, at *2 (BIA 2019) (“Because of its greater breadth,
… §
790.23(1)(a) … is categorically overbroad vis-à-vis [§ 1227(c)(2)(C)] of the
[INA] and 18 U.S.C....
...n does not
constitute a firearm under § 921(a)(3) because ammunition is not a weapon which
can expel a projectile. Nor does ammunition fit within the other definitions of a
firearm in § 921(a)(3). With respect to the concealed carrying offense, § 790.23(1)
prohibits a felon’s concealed carrying of items like dirks (i.e., daggers), metallic
knuckles, and billies (i.e., clubs or truncheons) that likewise are not covered by the
definition of a firearm in § 921(a)(3)....
...13
USCA11 Case: 19-11156 Date Filed: 08/04/2021 Page: 14 of 21
described by § 1227(a)(2)(C) of the INA through its cross-reference to the definition
of a firearm in § 921(a)(3).
So both of the Florida offenses in § 790.23(1)(a) are broader than what the
applicable federal law provides....
...deral offense does not, the
categorical analysis is complete; there is no categorical match.”). So we turn to the
BIA’s application of the modified categorical approach.
D
The BIA concluded that § 790.23(1)(a) is divisible with respect to the items
that it prohibits felons from possessing or carrying in a concealed manner. In our
view, the BIA was mistaken. Although it may sometimes be said that one man’s
means is another man’s elements, this case is not one of those at the margins. The
specified prohibited items for each of the two crimes proscribed by § 790.23(1)(a)
are means, and not elements.
14
USCA11 Case: 19-11156 Date Filed: 08/04/2021 Page: 15 of 21
If the two offenses prescribed by § 790.23(1)(a) are themselves divisible, then
the statute sets out seven or more separate possession crimes (one crime for
possession of each of the five definitions of a firearm, plus one crime for possession
of ammunition, plus one crime for possession of an electric weapon or device)....
...avated
felonies and some of which are not.”). We say “or more” because the definition of
electric weapon or device covers a potentially open-ended universe of items. See
§§
790.001(6), (14), (19).
And if the offenses are divisible, §
790.23(1)(a) would also set out six or more
separate concealed carrying crimes (one crime for carrying in a concealed manner
each of the four definitions of a concealed weapon, plus one crime for carrying in a
concealed manner a tear gas gun, plus one crime for carrying in a concealed manner
a chemical weapon or device)....
...so potentially covers an
open-ended universe of items. See §
790.001(3)(a)-(b).
15
USCA11 Case: 19-11156 Date Filed: 08/04/2021 Page: 16 of 21
There is nothing in the text of §
790.23(1)(a) that suggests this is the way the
statute operates. Indeed, the opposite seems true. As we have explained, Florida
courts have held that §
790.23(1)(a) creates two offenses, not thirteen plus. See
James,
16 So.3d at 326; Williams,
48 So.3d at 193-94; Wiggins,
253 So.3d at 1199.
It is also worth noting that the offenses prescribed by §
790.23(1)(a) are not
punished differently depending on what prohibited item is possessed or carried in a
concealed manner. See §
790.23(3)-(4)....
...466
(2000)] they must be elements. Conversely, if a statutory list is drafted to offer
‘illustrative examples,’ then it includes only a crime’s means of commission.”
Matthis,
136 S. Ct. at 2256 (citations omitted).
Were there any remaining doubt about whether §
790.23(1)(a) is divisible
with respect to its prohibited items, double jeopardy decisions by Florida courts put
that doubt to rest. See Guillen,
910 F.3d at 1182-83 (reviewing Florida double
jeopardy cases involving a Florida narcotics statute to determine whether the statute
was divisible as to its prohibited substances). If the prohibited items in
§
790.23(1)(a) are indeed elements, as the BIA concluded, then a person can be
separately convicted for possessing several of those items at the same time because
16
USCA11 Case: 19-11156...
...2018) (explaining that
the question under Fla. Stat. §
775.021(4)(b) is whether each offense contains an
element not contained in the other). Using this test, every intermediate appellate
court in Florida has held and/or recognized that multiple convictions and sentences
under §
790.23(1)(a) for the simultaneous possession of different prohibited items
violate double jeopardy....
...Guillen,
910 F.3d at 1182, we are bound by their uniform view that the prohibited
items do not constitute elements that effectively create separate and distinct crimes.
Under Mathis, our divisibility inquiry ends here because the language and
structure of §
790.23(1)(a) and Florida precedent have provided a clear answer....
...ior conviction itself.’ For
instance, the indictment and jury instructions… . ”) (quoting Mathis,
136 S. Ct. at
2256). The BIA, having failed to identify the relevant Florida court decisions,
incorrectly considered the jury instructions for §
790.23(1)(a)....
...See Simpson,
2019
WL 2464457, at *3.
18
USCA11 Case: 19-11156 Date Filed: 08/04/2021 Page: 19 of 21
Even if we consider the jury instructions, however, our conclusion remains
the same—the prohibited items in §
790.23(1)(a) are means and not elements....
...Jury Instr. (Crim.) §
10.15 (West 2020). 4
That listing, in and of itself, is no more indicative of the items being elements
than it is of the items being means. For example, Florida courts have explained that
the possession offense in §
790.23(1)(a) has two elements—one is the defendant’s
status as a felon, and the other is the defendant’s possession of a prohibited item—
and do not appear to view the item as an element separate from possession. See Hines
4
The Florida standard instructions for §
790.23(1)(a) read in full as follows:
To prove the crime of (crime charged), the State must prove the following two elements beyond
a reasonable doubt:
1....
...ion of a
felony[,] and (2) knowingly owning or having a firearm [or other prohibited item] in
one’s care, custody, possession or control.”); State v. Maxwell,
682 So.2d 83, 84
(Fla. 1996) (describing the elements of a possession offense under §
790.23(1) as
the defendant (1) possessing a firearm (2) after previously being convicted of a
felony). We cited Hines with approval as to the two statutory elements in Jones v.
Sec’y Dep’t of Corr., 503 F. App’x 749, 750 (11th Cir. 2013).
In sum, the prohibited items for the possession and concealed carrying
offenses in §
790.23(1)(a) are means of committing those crimes, and not elements
of separate crimes....
...have surveyed “do
not ‘speak plainly,’” and as a result we “must resolve the inquiry in favor of
indivisibility.” Cintron,
882 F.3d at 1385. Applying the categorical approach, we
hold that Mr. Simpson’s conviction for a violation of §
790.23(1)(a) does not
constitute a firearm offense under § 1227(a)(2)(C) of the INA and its cross-reference
to the definition of a firearm in § 921(a)(3).
V
We grant Mr. Simpson’s petition. The BIA’s decision deeming Mr. Simpson
removable under 8 U.S.C. § 1227(a)(2)(C) of the INA, based on his conviction for a
violation of Fla. Stat. §
790.23(1)(a), is vacated.
PETITION GRANTED.
5
The Supreme Court cited both Howard and Cabrera-Umanzor with approval in Mathis, 136 S.
Ct....
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 20026
firearm by a convicted felon, in violation of Section 790.-23(1), Florida Statutes. He successfully moved
CopyPublished | Florida 2nd District Court of Appeal | 2001 Fla. App. LEXIS 12102, 2001 WL 980620
...We therefore affirm the order as to this claim as it relates to the armed robbery and kidnapping convictions. The trial court did not address this claim as to the conviction for felon in possession of a firearm which is, as Cooper alleges, a second-degree felony. See § 790.23, Fla....
CopyAgo (Fla. Att'y Gen. 1991).
Published | Florida Attorney General Reports
...Martin Office of Chief Counsel Department of the Treasury Bureau of Alcohol, Tobacco and Firearms QUESTION: 1. May records of a conviction be expunged pursuant to s. 943.058, F.S. (1990 Supp.)? 2. Does expunction of records pursuant to s. 943.058, F.S., (1990 Supp.), affect an individual's status as a felon for purposes of s. 790.23 , F.S.? 3....
...ement, notwithstanding s. 943.058(2), F.S., "only upon a specific finding by a circuit court of unusual circumstances requiring the exercise of the extraordinary equitable powers of the court" affect an individual's status as a felon for purposes of s. 790.23 , F.S.? 4....
...(1987), operated to restore the subject of such records to the status occupied prior to the arrest, indictment, information, or judicial proceedings covered by the expunged record. An individual whose criminal records had been expunged would not appear to be subject to the prohibition is s. 790.23 , F.S....
...(e.s.) 2 Thus, an individual who has been adjudicated guilty of the offense which is sought to be expunged or any other prior criminal offense may not have the criminal records pertaining to such convictions sealed or expunged. 3 AS TO QUESTION 2: Section 790.23 , F.S., provides: (1) It is unlawful for any person who has been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felony or convicted of an offense in any other state, t...
...In light of the answer to your first question, an individual who has been convicted of a felony and, therefore, is ineligible to seek expunction, would be unable to expunge his or her felony conviction to remove the impediment to obtaining or possessing a firearm set forth is s. 790.23 , F.S....
...ual is placed in the same position occupied prior to the arrest, information or any judicial proceedings related to the expunged record. It would appear, therefore, that such an individual would have no impediments to possessing a firearm imposed by s. 790.23 , F.S....
...have his records sealed). 4 Cf ., Williams v. State,
402 So.2d 78 (1 D.C.A. Fla., 1981) (convicted felon whose civil rights "except the authority to possess or own a firearm" had been restored, did not have his civil rights restored for purposes of s.
790.23 [2], F.S.)....
CopyPublished | Florida 3rd District Court of Appeal
...Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant
Attorney General, for appellee.
Before HENDON, MILLER, and BOKOR, JJ.
MILLER, J.
Appellant, Jessie McGee, was convicted of one count of possession of
a firearm by a convicted felon, in violation of section 790.23(1), Florida
Statutes, and sentenced to thirty years in prison with a ten-year minimum
mandatory as a habitual violent felony offender....
CopyPublished | Florida 2nd District Court of Appeal | 1983 Fla. App. LEXIS 22591
possession of a firearm by a felon in violation of section
790.23, Florida Statutes (1981). That section provides:
CopyPublished | Florida 2nd District Court of Appeal | 2006 Fla. App. LEXIS 14097, 2006 WL 2422524
...He reserved the right to appeal the circuit court’s order that denied his motion to suppress a firearm. The order denying the motion was dispositive of only two of the crimes to which Mr. James pleaded nolo contendere: possession of a firearm by a convicted felon, section
790.23(1), Florida Statutes (2003) (count nine), and possession of a firearm during the commission of a felony, section
790.07(2) (count thirteen)....
CopyPublished | Florida 4th District Court of Appeal
....
Ashley Moody, Attorney General, Tallahassee, and Lindsay A. Warner,
Senior Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
The appellant was convicted after trial of felon in possession of a
firearm, in violation of section 790.23, Florida Statutes (2022)....
CopyPublished | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 12207, 2010 WL 3270833
...Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee. ALTENBERND, Judge. Brent Johnson appeals his judgment and sentence for possession of a firearm by a convicted felon, in violation of section 790.23(1)(a), Florida Statutes (2008)....
...Six of those pages are three certified copies of judgments convicting Mr. Johnson of felonies. Those pages were properly admitted in the absence of a stipulation because Mr. Johnson's status as a convicted felon was a necessary element of the offense of possession of a firearm by a person convicted of a felony. See § 790.23(1)(a); see also State v....
...Johnson lived at the home or had any knowledge or connection to that rusty revolver. See generally Daniels v. State,
718 So.2d 1274, 1275 (Fla. 2d DCA 1998) (explaining that the State must prove either constructive or actual possession to establish violation of section
790.23)....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 5684, 1990 WL 108840
GOSHORN, Judge. Robert James Jackson pled nolo contendere to carrying a concealed firearm (section
790.01(2), Florida Statutes (1989)) and possession of a firearm by a convicted felon (section
790.23, Florida Statutes (1989))....
CopyPublished | Florida 1st District Court of Appeal
...II. Whether the trial court fundamentally erred by
instructing the jury on the non-existent crime of
“possession of a concealed weapon by a convicted felon”
instead of “carrying a concealed weapon by a convicted felon.”
Section 790.23(1), Florida Statutes, makes it unlawful for a
convicted felon “to have in his or her care, custody, possession, or
control any firearm . . . or to carry a concealed weapon[.]”
Appellant was charged by information with “possession of a
concealed weapon by a convicted felon . . . contrary to the
provisions of Section 790.23(1)(a), Florida Statutes.” However,
“possession of a concealed weapon” is not an offense named in
section 790.023(1), Florida Statutes....
CopyPublished | Florida 6th District Court of Appeal
...the offenses of
resisting an officer without violence in violation of section
843.02, Florida Statutes
1
Anders v. California,
386 U.S. 738 (1967).
(2023) (Count 1), possession of a firearm by a convicted felon in violation of section
790.23, Florida Statutes (2023) (Count 2), and shooting into a building in violation
of section
790.19, Florida Statutes (2023) (Count 3)....
CopyPublished | Florida 5th District Court of Appeal | 1998 WL 473004
...n filed within the two year time period. See Ayo v. State,
708 So.2d 692 (Fla. 5th DCA 1998). This proceeding involves the denial of the original 3.850 motion. [2] §
782.07(1),
775.087(1), Fla. Stat. (1997). [3] §
782.04(2), Fla. Stat. (1997). [4] §
790.23, Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2014 WL 3930196, 2014 Fla. App. LEXIS 12407
...year term of probation to add completion of a batterers' intervention program. The
probation was the result of Mr. Sexton's no contest plea in 2011 to the offense of
"possession of a firearm by convicted felon," which arose from events in May 2010.
See § 790.23(1), Fla....
...e First District's
decision in Weeks v. State, 39 Fla. L. Weekly D35 (Fla. 1st DCA Dec. 26, 2013), motion
for clarification filed, No. 1D12-3333 (Fla. 1st DCA Dec. 30, 2013). That decision, which
is still pending in the First District, held that "section 790.23 is unconstitutionally vague
because the phrase 'firearm' as elsewhere defined does not give adequate notice of
what type of firearm may be lawfully carried by a convicted felon and, because of the
imprecision, may invite arbitrary and discriminatory enforcement." Id....
...That explanation appears sound because the decision in
Weeks was based on that court's conclusion that the definition of "antique firearm,"1
which was incorporated into the definition of "firearm"2 and, thus, into this substantive
offense, rendered section 790.23 unconstitutionally vague....
...L.
Weekly at D35-D36. Because the constitutional concern addressed in Weeks appears
to arise only in cases involving firearms that arguably might be regarded as a replica of
an antique firearm, the issue does not result in the facial unconstitutionality of section
790.23(1)....
...3d
1
§
790.001(1), Fla. Stat. (2012).
2
§
790.001(6), Fla. Stat. (2012).
-2-
at 595. To date, neither the First District nor this court has held that section
790.23(1) is
facially unconstitutional.
In an appeal from an order entered on a violation of probation, our scope
of review is generally limited to issues related to the revocation or modification of
probation. Even if we can review the constitutionality of section
790.23(1) at this late
stage of the proceedings, the law is clear that a party must preserve an as-applied
constitutional challenge to a statute in the trial court....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 11963, 2015 WL 4747181
...Joel Rodriguez, Milton, Pro Se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers
and Monique Rolla, Assistant Attorneys General, West Palm Beach, for
appellee.
TAYLOR, J.
Joel Rodriguez appeals his conviction and sentence for violating section
790.23(1), Florida Statutes (2006)....
...The instructions then went on to define various terms, including
“possession,” “actual possession,” and “constructive possession.” The jury
was instructed on the definition of the term “weapon,” but not the term
“concealed weapon.”
Section 790.23(1) encompasses two separate crimes....
...felon.
Reversed and Remanded.
MAY and KLINGENSMITH, JJ., concur.
1 The amended information improperly labeled the crime as “possession of a
weapon by a convicted felon,” but the allegations of the information properly
tracked the language of section 790.23(1).
3
* * *
Not final until disposition of timely filed motion for rehearing.
4
CopyPublished | Florida 4th District Court of Appeal | 2004 Fla. App. LEXIS 11746
...orida Statutes (2002). W.J. v. State,
688 So.2d 954 (Fla. 4th DCA 1997). Second, the probation condition regarding firearms must be modified to proscribe the possession of a firearm, electric weapon or a concealed weapon as specifically set forth in Section
790.23, Florida Statutes (2002)....
CopyPublished | Florida 5th District Court of Appeal | 1993 WL 104646
...Alternatively, the trial judge may attach such portions of the record which conclusively establish appellant is not entitled to relief on this ground. REVERSED and REMANDED. DAUKSCH, J., concurs. GRIFFIN, J., dissents without opinion. NOTES [1] Fla.R.Crim.P. 3.850. [2] §
893.13(1)(f), Fla. Stat. (Supp. 1990). [3] §
790.23, Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit
a felon in possession of a firearm, Fla. Stat. §
790.23(1)(a), is categorically an aggravated felony
CopyPublished | Supreme Court of Florida | 42 Fla. L. Weekly Supp. 424, 2017 Fla. LEXIS 750
...on
782.04(1)(a), Florida Statutes (2009); one count of armed burglary of a dwelling while inflicting death, in violation of section
810.02(2)(b), Florida Statutes (2009); and one count of possession of a firearm by a convicted felon, in violation of section
790.23, Florida Statutes (2009)....
CopyPublished | Supreme Court of Florida | 2000 WL 350554
...Accordingly, we approve the opinion in Williams and quash the decision in Thompson in accordance with our decisions in White and Walton. It is so ordered. HARDING, C.J., and SHAW, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur. WELLS, J., dissents. NOTES [1] Thompson was charged with violating section 790.23(1)(a), Florida Statutes (1997), which states: "It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been ......
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 5550, 1999 WL 252704
...Ellis moved for judgment of acquittal at the close of the state’s case, he did not raise this particular issue at trial. Therefore, it has not been preserved for appellate review. See Hardwick v. State,
630 So.2d 1212, 1213 (Fla. 5th DCA 1994). JUDGEMENT AND SENTENCE AFFIRMED. GRIFFIN, C.J., and W. SHARP, J., concur. . §
790.23, Fla....
CopyPublished | Florida 1st District Court of Appeal
...Rand to use the track and the officer should
have known it. First, the officer—who testified that he’d patrolled the school for
1
The State charged Mr. Rand with possession of a firearm by a convicted felon
based on a marijuana possession conviction in Texas in 2003, see §
790.23, Fla.
Stat., and for trespassing with a firearm, see §
810.095(1), Fla....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 1049, 1988 Fla. App. LEXIS 1688, 1988 WL 39136
...n fifty days of the filing of the demand, has filed a motion for discharge and, despite the judge’s order that defendant be brought to trial within ten days of the order, is not brought to trial. Since the defendant here was charged with a felony, section 790.23, Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 2876
...ida Statutes (1987), for use in subsequent juvenile proceedings, an adjudication of a prior delinquent act is deemed a “conviction.” Therefore, based on a prior delinquency adjudication, a child cannot be found to be a felon and to have violated section 790.23, Florida Statutes, which prohibits possession of a firearm by any person who has been “convicted of a felony.” Accordingly, the adjudication of delinquency below, based on the child’s violation of section 790.23, Florida Statutes, is REVERSED....
CopyPublished | Florida 4th District Court of Appeal
...tence to the
misdemeanor charge of carrying a concealed weapon, having reserved his
right to appeal the denial of his dispositive motion to dismiss the state’s
original felony charge of possession of a firearm by a convicted felon, in
violation of section 790.23(1), Florida Statutes (2022).
The defendant primarily argues the circuit court erred in denying his
dispositive motion to dismiss because section 790.23(1) is allegedly
unconstitutional under the Second Amendment, both facially and as
applied to him, having been convicted of six prior nonviolent felonies, the
most recent of which had occurred thirteen years earlier.
Binding precede...
CopyPublished | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 5885, 2015 WL 1846905
...regard to the armed burglary conviction. See Bell v. State,
122 So.3d 958, 961 (Fla. 2d DCA 2013) (holding that double jeopardy precludes dual convictions for felon in possession of a firearm and felon in possession of [separate] ammunition because section
790.23(1), Florida Statutes prohibits possession of “ ‘any firearm, ammunition, or electric weapon or device’” (emphasis in original)); see also Strain v....
CopyPublished | Florida 4th District Court of Appeal | 12 Fla. L. Weekly 1084, 1987 Fla. App. LEXIS 7844
BASKIN, Judge. Defendant Crespo seeks reversal of his conviction of possession of a firearm by a convicted felon. § 790.23, Fla.Stat....
CopyPublished | Court of Appeals for the Eleventh Circuit
...at
1303; however, we also noted that our analysis in Orellanes may not have fully
accounted for the context specific nature of the term “conviction” under Florida
law, id. at 1304. Thus, we turned to Florida law surrounding Florida’s unlawful
possession of a firearm by a felon statute, Fla. Stat. Ann. § 790.23....
CopyPublished | District Court of Appeal of Florida | 1973 Fla. App. LEXIS 6853
...The Felony Court of Record for Volusia County, Florida, entered its order dismissing an information against the appellee, in which order the trial court, inter alia, made this finding: “3. That the conviction of this defendant in this Court under Section 790.23 of the Florida Statutes, F.S.A., was the result of plea bargaining between said defendant and the State of Florida in which the State of Florida agreed not to prosecute other pending charges arising from the same criminal transaction a...
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 4895, 1999 WL 218189
...Accordingly, we rule that the scoresheet in this case should not have included the 25 points. Further, since all of the sentences were affected by this sentencing error, we vacate all of the sentences and remand for re-sentencing. Sentences VACATED; REMANDED for re-sentencing. THOMPSON and ANTOON, JJ., concur. . § 790.23, Fla....
CopyPublished | Florida 5th District Court of Appeal | 12 Fla. L. Weekly 1070, 1987 Fla. App. LEXIS 7710
UPCHURCH, Chief Judge. Appellant, Clarence H. Hall, appeals from a sentence of imprisonment followed by community control after conviction of *672 possession of a firearm by a convicted felon. § 790.23, Fla.Stat....
CopyPublished | Florida 3rd District Court of Appeal | 2005 Fla. App. LEXIS 5059, 2005 WL 840442
...uidelines. See Cameron v. State,
807 So.2d 746, 747-48 (Fla. 4th DCA 2002). There is a dispute between the parties regarding count three. The defendant was charged with possession of a firearm by a violent career criminal (“VCC”) in violation of section
790.235, Florida Statutes (1997)....
...This charge had twice been amended prior to trial. The jury instructions, verdict, and verbal description on the judgment reflect that the charge actually submitted to the jury was possession of a firearm by a convicted felon, which is a violation of section 790.23, Florida Statutes....
...orders in the case. This came about because the trial court viewed count three as being a conviction for possession of a firearm by a violent career criminal, and imposed a sentence of forty years with a fifteen year mandatory minimum sentence. See § 790.235(1), Fla....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 3693
...Appellant seeks review of an order adjudicating him a delinquent child based upon findings that he had violated section
790.22(3), Florida Statutes (Supp.1994) (unlawful possession of a firearm by a minor); section
790.01(2), Florida Statutes (1993) (carrying a concealed firearm); and section
790.23(l)(a), Florida Statutes (Supp.1994) (possession of a firearm by one previously found to have committed a delinquent act that would be a felony if committed by an adult)....
...Brown,
633 So.2d 1059 (Fla.1994) as standing for proposition that “a defendant could not be convicted and sentenced for two crimes involving a firearm that arose out of the same criminal episode”). Accordingly, while we affirm the order of adjudication and disposition based upon the finding that appellant violated section
790.23(l)(a) (possession of a firearm by one previously found to have committed a delinquent act that would be a felony if committed by an adult), we remand with directions that the trial court enter an amended order of adjudication and dispo...
CopyPublished | Florida 2nd District Court of Appeal
...In fact, a separate definition for "ammunition" is found in section
790.001(19).
Additionally, although section
948.03(1)(m) only includes firearms and
weapons in its prohibition of what probationers and offenders on community control may
possess, section
790.23(1) is more restrictive as to what a convicted felon may
possess, specifically making it unlawful for a felon to possess ammunition....
