The laws concerning lawful firearm possession are rather complex. In many respects, this complexity is caused by the fact that everyone is subject to both state and federal laws.
From a broader perspective, every state has their own unique individual laws concerning firearm ownership which are independent of existing federal firearm legislation. An extreme example is New York City which requires a special license to own a handgun. The NYC application and fingerprint processing fees alone total $431.50 and applicants are greatly scrutinized. For example, an outstanding traffic ticket fine or even a poor driving record can be grounds for denial.
A recent study by the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives revealed that 90 percent of all crimes committed with a firearm in New York City, involved weapons originally secured from other states. Florida was within the top ten out-of-state sources where these traceable firearms were originally purchased.
The Right to Keep and Bear Arms
The U.S. Constitution states “... the right of the people to keep and bear arms, shall not be infringed.” In light of this clear directive, some people might wonder if New York City’s expensive and highly selective licensing process is anything but an “infringement.”
In the landmark case of District of Columbia v. Heller the United States Supreme Court expressly found that the Second Amendment existed to protect an individual’s right of gun ownership for the purpose of self defense. But the court also held that this right was not limitless and at times, the possession of firearms could in fact be regulated. Supreme Court Associate Justice Antonin Scalia wrote: “Like most rights, the right secured by the Second Amendment is not unlimited. ... nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places... or laws imposing conditions and qualifications on the commercial sale of firearms.”
North versus South
The toughest firearm regulations are found in such states as Pennsylvania, Illinois, Rhode Island, Connecticut, Massachusetts and New Jersey. It is not surprising that southern states, such as Florida are unwilling to impose “significant” restrictions on your Second Amendment “Right to Keep and Bear Arms.”
Probation Requires You to Divest Ownership of all Firearms
Few people can ever perceive of the Florida legislature ever passing a firearm law as burdensome as that in New York City. However, there are some restrictions in Florida nevertheless. The topic of this article covers one particular limitation imposed by Florida Statute Section 948.03(1)(m)(1). This law makes it a mandatory condition of every Florida probationary sentence that the individual be prohibited from the possession, carrying, or owning of any type of firearm. (Includes, but not limited to, handguns, rifles and shotguns) This includes all probation sentences. In other words, the prohibition equally applies to probation sentences imposed for felonies, misdemeanors and criminal traffic offenses. (Including but not limited to DUI and Reckless Driving.)
An experienced criminal defense attorney will tell you that achieving a withhold of adjudication in your case can be a valuable outcome because it avoids a formal conviction. It may even set you up to subsequently have your records of arrest sealed. But under Florida law, those persons fortunate enough to have received a withholding of adjudication are still prohibited from owning, using or possessing a firearm while they remain on probation. Bottom line... while on Florida probation you have a “Legal Disability” when it comes to your rights associated with firearms.
If while on probation you attempt to purchase a firearm from a licensed dealer, you will likely be denied after he completes a mandatory background check. That is because, under Section 922(b)(2) of the federal Gun Control Act of 1968, 18 USC 922(b)(2), it would be illegal for the dealer to sell you the firearm because it would constitute “a violation of state law.”
Actual or Constructive Possession Results in Violation of Probation
Obviously if you are holding a firearm or it is in your pocket or purse, you are in actual possession. But the law likewise prohibits “constructive” possession of a firearm while serving a Florida probationary sentence. Many clients who come to our office for help, unknowingly found themselves on the wrong side of the law because of their “constructive” possession. You can read an excellent explanation of “Actual Possession vs. Constructive Possession” in the context of illegal drugs on our felony drug possession website page. Suffice it to say, that you will be deemed to be in constructive possession of the firearm if you had knowledge of its whereabouts and you had the ability to access the firearm, regardless of who the true owner is. Being in constructive possession of a firearm can often result in an arrest for “violation of probation.”
Roommate’s With Firearms
A problem can often arise if you live with a roommate or spouse who owns a firearm and wishes to keep the weapon in the residence that you share. This is an invitation for trouble. If your roommate insists on keeping the firearm in the house, it needs to be locked in a secure safe for which you do not have the combination. Better yet, the safe should be located in a room used and accessed only by the firearm’s owner.
Needless to say...
- Your fingerprints won’t be found on the safe or on the firearm;
- If asked, you do not know the combination to the safe, and;
- You didn’t even know there was a firearm in the safe.
Arrested for a Firearm Offense? We Can Help
The Lawyers in our office are well experienced in helping clients charged with:
- Carrying a Concealed Weapon
Florida Statute Section 790.01(1) - Carrying a Concealed Firearm
Florida Statute Section 790.01(2) - Aggravated Assault with a Firearm
Florida Statute Section 784.021 - Improper Exhibition of a Dangerous Weapon or Firearm
Florida Statute Section 790.01 - Possession of a Firearm by a Felon
Florida Statute Section 790.23 - Discharge of a Firearm in Public
Florida Statute Section 790.15 - Possession or Discharge of Destructive Device
Florida Statute Section 790.161 - Possession of a firearm While Under the Influence
Florida Statute Section 790.151 - Shooting into a Dwelling, Structure or Vehicle
Florida Statute Section 790.19
We are experienced Pinellas County Criminal Defense Attorneys who represent clients charged with criminal offenses arising out of the St. Pete & Clearwater area.
Former state prosecutors who can help!
Free Consultation: 727-578-0303
View Our Criminal Defense Website: www.defensehelp.com
Visit Our DUI Website: www.duistpetersburglawyer.com
Our Prescription Fraud Website: www.floridaprescriptionfraud.com
Slide Show: Top Ten Toughest Gun Law States
Related Links:
How to get an Early Termination of Pinellas Probation
How to Get a Florida Concealed Firearms License
Ranking – Best States For Gun Ownership
NY SAFE Act – Prohibits Magazines Loaded with More Than Seven Rounds
Domestic Violence and Firearm Rights
How a Felony Conviction Can Impact You
Pinellas County Probation
Florida’s Under 24 Years Old Exception to Firearm Possession
Getting Your Charge Dismissed With PTI
What to Do About a Violation of Probation
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