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West Palm Beach Weapon & Gun Crime Attorney Josh LeRoy on:

Weapon, Gun Crime & Related Charges

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An experienced West Palm Beach Weapons and Gun Attorney can make all the difference in the world when it comes to your final sentence – potentially years of your life. A few of the most common charges in the Weapons and Guns category are detailed below.

Can a West Palm Beach Gun Crime Attorney help me with a Carrying a Concealed Firearm charge (F.S. 790.01(2))?

Under Florida law, a person without a license is prohibited from carrying “a concealed firearm on or about his or her person.” The offense is a felony of the third degree.

The law defines “firearm” as “any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun.”

The term “firearm” does not include, and so the law does not prohibit possession of, an antique firearm unless it is used in the commission of a crime.

What is the penalty for Carrying a Concealed Firearm in Palm Beach County?

Carrying A Concealed Firearm, F.S. 790.01(2)
Carrying A Concealed Firearm, F.S. 790.01(2)

The offense is a third-degree felony, punishable by penalties ranging from a term of probation up to 5 years in state prison.

Does the gun have to be carried on the person or in the clothing for a person to be charged with carrying a concealed firearm?

No. The law prohibits carrying one of the named firearms on “or about” a person.

Consequently, the law does not require the State to prove the defendant carried or wore the weapon.

Like many drug charges, the State can convict a defendant by proving the defendant was guilty of either actual or “constructive” possession. “Actual” possession means the defendant carried the firearm on his body or in clothing. A gun worn in a holster, or carried in a pocket, is an example of actual possession.

In contrast, possession is defined as “constructive” if the gun was found near but not in the hands or on the person’s clothing. For instance, police might find a gun in a car under the defendant’s seat or in the center console, where it was hidden but still within immediate reach and access of the accused. A gun, locked in a glove compartment, or placed in the trunk of one’s car, is not readily accessible and, therefore, cannot provide the basis for a conviction under the law.

Is there a difference between actual and constructive possession in punishments for carrying a concealed firearm?

No.

What if the weapon was not hidden and visible?

That is a complete defense of the charge. For instance, a gun seen on the backseat of a car is not concealed because it is visible. Under such circumstances, a person cannot be lawfully convicted of carrying a concealed firearm. According to the law, the person should not be stopped or arrested. But, as criminal-defense attorneys well know, police officers sometimes make mistakes.

Why am I being charged if I never showed anyone the gun?

The crime of carrying a concealed firearm criminalizes carrying a gun in a manner that is hidden from other people. It is irrelevant whether the gun was shown or used. The underlying principle is that, as a matter of self-defense, people should be aware if someone is carrying a firearm.

Before hiring a Weapon Crime Attorney, what should I know about a Carrying a Concealed Weapon charge (F.S. 790.01(1))?

According to Florida law, “it is illegal for a person who is not licensed to carry a concealed weapon or electric weapon or device on or about his or her person.”

Florida law defines a “weapon” as any dirk [dagger], knife, metallic knuckles, slingshot, bill, tear gas gun, chemical weapon or device, or another deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.

The law in Florida further defines “electric weapon or device” as any device that, through the application or use of electrical current, is designed, redesigned, used, or intended to be used for offensive or defensive purposes, the destruction of life, or the infliction of injury.

Before hiring a Weapon Crime Attorney, what should I know about a Carrying a Concealed Weapon charge (F.S. 790.01(1))?
Carrying A Concealed Weapon, F.S. 790.01(1)

When a person carries one of the named weapons so that it is not visible to “the ordinary sight of another person,” the weapon is “concealed.”

What is the penalty for conviction of Carrying a Concealed Weapon in Palm Beach County?

As a first-degree misdemeanor, the offense is punishable by penalties ranging from a minimum term of probation up to one (1) year in the county jail.

For conviction of Carrying a Weapon, must the State prove the weapon was carried on the defendant’s body or in his clothing?

No, the law prohibits carrying one of the named weapons on or about a person.

Consequently, the law does not require the State to prove the defendant carried or wore the weapon.

Like many drug charges, the State can convict a defendant of carrying a concealed weapon by proving the defendant was guilty of either actual or “constructive” possession. “Actual” possession means the defendant had the weapon on his body or within his clothing. A knife carried in a waistband, or within a pocket, is an example of actual possession.

In contrast, possession is defined as “constructive” if the weapon was found near the person. For instance, a knife was found in the car under the defendant’s car seat, or in the center console, where it was hidden but still within the accused’s access. A knife, locked in a glove compartment, or placed in the trunk of one’s car, is not readily accessible and, therefore, cannot provide the basis for a conviction under the law.

Is there a difference between actual and constructive possession in punishments for carrying a concealed weapon?

No.

What if the weapon was not hidden, and so it was visible?

That is a complete defense of the charge. For instance, a brass-knuckle belt buckle worn visibly on one’s pants cannot form the basis of carrying a concealed weapon charge.

Does it matter if the concealed weapon was a pocketknife I carry in my pocket all the time?

An ordinary pocketknife is specifically not included in the law’s definition of a weapon. Depending on the size of the blade of the knife, you may have a complete defense against the charge. Under such circumstances, your lawyer should, with a written motion, ask the judge to dismiss the case.

Why am I being charged when I never showed anyone my knife?

The offense of carrying a concealed weapon criminalizes the act of carrying a weapon in a manner that is hidden from other people. It is irrelevant whether the weapon was shown or used. The underlying principle is probably that, for self-defense purposes, people should be aware when someone in their proximity is carrying a deadly weapon. Hence, the fact that you didn’t show anyone the knife is irrelevant.

How would a Weapon Attorney help me with an Improper Exhibition of a Dangerous Weapon charge (F.S. 790.10)?

There are a few actions that need to be proven beyond a reasonable doubt in

How would a Weapon Attorney help me with an Improper Exhibition of a Dangerous Weapon charge (F.S. 790.10)?
Improper Exhibition Of A Dangerous Weapon – F.S. 790.10

order to be convicted of improper exhibition of a dangerous weapon.

Firstly, in the presence of multiple individuals, you must have any dangerous weapon on your person and act angry or careless with said firearm. An individual doesn’t need to threaten anyone with a weapon to be convicted of the improper exhibition, only to have a weapon and act erratically.

The defendant could not be convicted multiple times for the same incident if numerous people witnessed the incident. Improper exhibition of a weapon is a 1st-degree misdemeanor, whose consequences are a maximum of one year in prison or one year of probation and a maximum of $1k in fines.

The most common defense to an improper exhibition charge is self-defense or defending others. Also, it can be argued that the weapon was not brandished “carelessly.” The “witness'” distance to the defendant at the time can also be considered, as can whether or not that person was actually in their presence.

Inadvertent display – how can they happen?

  1. Someone has a weapon holstered, and his shirt moves, revealing the firearm to a worried bystander.
  2. Someone has a firearm in their bag or purse. A bystander sees the firearm in the bag.
  3. If someone has a firearm in a bag or jacket, visible or accessible to children, and a bystander calls the police.

Can a Gun Attorney help me with an Improper Exhibition of Dangerous Weapons or Firearms charge (F.S. 790.10)?

Under Florida law, it is illegal when a person “having or carrying any dirk [dagger], sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense…”

Can a Gun Attorney help me with an Improper Exhibition of Dangerous Weapons or Firearms charge (F.S. 790.10)?
Improper Exhibition of Dangerous Weapons or Firearm, F.S. 790.10

What are the penalties for Improper Exhibition of Dangerous Weapons or Firearms?

As a first-degree misdemeanor, the offense is punishable by penalties ranging from a minimum term of probation up to a year in the county jail.

What defenses would an experienced Gun Crime Attorney use for an Improper Exhibition of Dangerous Weapons or Firearms charge?

Self-defense and the defense of others are perhaps the most common defenses against charges that one has improperly exhibited a dangerous weapon or firearm.

But there are other defenses, depending on the facts alleged by the State. Florida law allows citizens to use self-defense to protect themselves and others if the action is proportionate to the perceived threat.

In addition, if the State obtains its evidence in violation of the Constitution, the defendant, through his lawyer, can seek the exclusion of that tainted evidence from the case. When that exclusion, or “suppression,” occurs, the State often drops the case or offers a desirable plea deal to resolve the matter.

What is a Possession or Discharge of Destructive Device charge (F.S. 790.161)?

Florida law defines possession or discharge of a destructive device as a crime that occurs when someone “…willfully and unlawfully makes, possesses, throws, projects, places, discharges, or attempts to make, possess, throw, project, place, or discharge any destructive device…”

What is a Possession or Discharge of Destructive Device charge (F.S. 790.161)?
Possession Or Discharge of Destructive Device, F.S. 790.161

What are the penalties for Possession or Discharge of a Destructive Device in Palm Beach County?

  • Possession or discharge of a destructive device is a third-degree felony, punishable by penalties ranging from a term of probation up to 5 years in state prison.
  • Suppose the discharge occurred with the intent to harm or cause a disruption in any government, commercial or personal affairs. In that case, the offense is a second-degree felony, punishable by penalties ranging from probation up to 15 years in prison.
  • If the discharge caused injury or damage to property, the offense is a first-degree felony, punishable by penalties ranging from property damage to years in prison.
  • If the discharge results in another person’s life loss, the offense is a capital felony, which means, if convicted, the defendant could be sentenced to death.

What common defenses would a West Palm Beach Weapon Attorney use for Possession or Discharge of a Destructive Device?

For a device to be considered destructive, it must be designed for use as a weapon; depending on the case facts, it can be successfully argued that a device used for signaling or safety is not a destructive device.

Suppose the device is not designed for destruction, and an explosion occurs because of a malfunction within the device. In that case, it could be similarly argued that the defendant did not possess the requisite criminal intent for the device to discharge.

Before hiring a West Palm Beach Gun Crime Attorney, what should I know about Discharging a Firearm in Public charge (F.S. 790.15)?

In the State of Florida, it is illegal to discharge a firearm in public knowingly.

To be convicted of discharging a firearm in public, it must be proven beyond every reasonable doubt that the firearm was discharged and that the discharge occurred on public, not private, property. You have the right to use your firearms responsibly and for self-defense. Sometimes law enforcement and state attorneys forget that fact.

Before hiring a West Palm Beach Gun Crime Attorney, what should I know about a Discharging a Firearm in Public charge (F.S. 790.15)?
Discharging A Firearm in Public – F.S. 790.15

Discharging a firearm in public is considered a first-degree misdemeanor. Given the multitude of defenses, this charge is more commonly utilized in plea negotiations as a lesser for a felony charge rather than a standalone charge.

I accidentally discharged my firearm. Can I still be convicted?

It was an accident, and it will be difficult to be convicted because, to be convicted, it needs to be proved that you knowingly discharged the gun in public.

What are the punishments for discharging my firearm in public?

Usually, the charge is a 1st-degree misdemeanor, which comes with less than one year of jail time or one year of probation and a $1,000 fine.

Is there any way to get out of this charge?

Definitely, if the discharge was accidental, or there was an inability to prove who actually discharged the weapon, you can’t be convicted.

Can a West Palm Beach Gun Crime Attorney help me with a Felon in Possession of a Firearm charge (F.S. 790.23)?

Florida Statutes prohibit “any person to own or to have in their care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device if that person has been:

  1. Convicted of a felony in the courts of this State.
  2. 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.
  3. Convicted of or found to have committed a crime against the United States, which is designated as a felony.
  4. Found to have committed a delinquent act in another state, territory, or country that would be a felony if committed by an adult and which was punishable by imprisonment for a term exceeding one year and such person is under 24 years of age; or
  5. Found guilty of an offense that is a felony in another state, territory, or country and punishable by imprisonment for a term exceeding one year.

In simpler terms, in Florida, it is illegal for a person convicted of a felony, whether as an adult or a minor, to possess a firearm or one of the other weapons named in the law. Under Florida law, possession can take two forms: actual and constructive. Actual possession means the gun or other weapon is carried by or worn by a person.

For instance, the gun is held by a person in his hand, his pants pocket, or his waistband. Constructive possession means the gun or other weapon is found in the vicinity of, but not actually on, the person. For instance, the gun was found on the seat of a car that a person is driving or in a closet in the person’s home.

What is the penalty for conviction of a Felon in Possession of a Firearm in Palm Beach County?

Felon In Possession Of A Firearm, F.S. 790.23
Felon In Possession of a Firearm, F.S. 790.23

As a second-degree felony, this offense is punishable by penalties ranging from probation up to 15 years in state prison.

In punishments for a felon charged with possession, is there a difference between actual and constructive possession?

Yes. By law, a conviction for actual possession of a firearm by a convicted felon requires a mandatory minimum sentence of three years in state prison.

Because the sentence is mandatory, the defendant must serve 100% of the three years and is not eligible for any form of early release or gain time.

In contrast, a conviction for constructive possession of a firearm by a convicted felon does not require a minimum mandatory sentence of three years in prison, thus allowing a judge to exercise discretion in determining the appropriate punishment.

Are there defenses to a felon in possession charge?

A witness who claims he saw a gun in the possession of a felon is always subject to questioning and cross-examination, as with all witnesses in our justice system. Witnesses often misrepresent the truth, especially when they have a vindictive or other self-interested motives to lie.

A proper cross-examination by a competent criminal defense lawyer should succeed in showing a witness’s lack of credibility. Similarly, the presence of DNA or fingerprint evidence can help exonerate the accused when the charges are false. And the absence of DNA or fingerprint evidence can introduce reasonable doubt about the State’s allegations.

There are other defenses as well.

For example, when a gun is found in a car occupied by more than one person or in a home in which more than one person resides, the State cannot successfully prosecute the accused without substantially more evidence showing that the firearm belonged to the defendant and not someone else and this is true even if the gun is found in a location closer to the accused than to the others.

Does it matter if the gun was broken or not operational?

No. A felon in Florida is even prohibited from possessing a gun that does not work.

What if my civil rights were restored? Can I possess a firearm?

When a person is convicted of a felony in Florida, he loses important civil rights, such as the right to vote, the right to serve on a jury, and the right to bear arms. However, some or all of these rights can be restored under certain circumstances. A convicted felon can only possess a firearm if that specific right was expressly restored.

Related Cases

BURGLARY OF A DWELLING/HABITATION

VIOLATION OF PROBATION, BURGLARY, CARRYING A CONCEALED FIREARM

This Burglary case involved:

  • The Accused: The client’s family was unhappy with the performance of the previous counsel, so I was retained to take over the client’s one new case and two violations of probation cases.
  • The Charges: Carrying a concealed Firearm (new charge) and Violations of Probation for Burglary and Carrying a Concealed Firearm
  • My Counsel & Defense: Plead to the lessor of misdemeanor carrying a concealed weapon and violations of probation
  • The VERDICT: Following depositions of the officer that arrested the client for the new case, the State agreed to a time-served plea to the lessor, included offense of carrying a concealed weapon, a misdemeanor, on the new charge and time served on the violations of probation. The client was released from custody the same day he took the plea.

Related laws:
Carrying a concealed Firearm (new charge) and
Violations of Probation

Charged? Call West Palm Beach Weapon & Gun Crime Attorney Josh LeRoy Because Experience Wins. Can You Afford to Lose?

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