Florida Gun Crime Decision Discusses Meaning of “Possessing” a Firearm

Florida’s laws criminalize various activities involving a gun, and the prosecution of gun crimes in Florida often hinges on what it means to “possess a firearm,” a determination that isn’t as obvious as it might seem. In fact, a Florida appeals court recently ruled that “possession” of a firearm might not be the same thing under two different Florida laws.

The defendant was the passenger of a Cadillac that crashed into a police vehicle. The driver fled the scene, but the passenger remained in the vehicle. The Longwood Police Department conducted a search of the Cadillac and discovered a loaded handgun on the passenger side floorboard and cocaine in the vehicle’s center console. As a result of the search, the passenger was charged with two gun crimes:  (i) trafficking in cocaine while armed with a firearm, known as armed trafficking, and (ii) possession of a firearm by a convicted felon, known as felon-in-possession.


At trial, the jury determined that the defendant “carried” a firearm in furtherance of the armed trafficking crime; however, the jury also found that the defendant did not “actually possess a firearm,” which would have led to a further enhancement. The judge then dismissed the severed felon-in-possession charge because additional prosecution of that charge was barred by collateral estoppel, a doctrine that forecloses the further consideration of a previously determined fact that was necessarily determined in the defendant’s favor; it is not sufficient that the fact might have been determined by the first trial.

The appeals court examined whether the jury’s determination that the defendant did not “actually possess” a firearm in the armed trafficking case necessarily determined that he also did not possess the firearm for the purposes of the felon-in-possession charge. The court placed itself in the mindset of the jurors and suggested that while the firearm was readily available in the vehicle’s center console, the defendant did not have the firearm on his person or have ready access to it with the intent to use it during the trafficking offense. The court determined that this did not necessarily determine that the defendant did not “possess” a firearm to dismiss the felon-in-possession charge.

This decision demonstrates that whether or not a person possessed or carried a firearm is not always a straightforward determination, and in fact, sometimes different courts may disagree on how to apply the appropriate legal standard. Although a jury determined that the defendant did not “actually possess” a firearm in an armed trafficking trial, the appeals court determined that he might have “possessed” the firearm in the severed felon-in-possession trial.

If you are charged with any type of gun crime in Clearwater, you should make sure to hire an aggressive and knowledgeable attorney to defend you against the charges. Will Hanlon is a criminal attorney with over 20 years of experience. He strives to obtain an outcome for his clients that is realistic under the circumstances and allows them to move forward with their lives, whether that is a dismissal, a reduction in the charges, or an acquittal. Contact Hanlon Law at 813-228-7095.

Photo credit: M93 (Own work) [CC BY-SA 3.0 de], via Wikimedia Commons.