“Felon in Possession of a Firearm”

On August 21, 2024, Florida’s Fourth District Court of Appeal decided the appeal filed in Rock v. State, 2024 Fla. App. LEXIS 6526, 49 Fla. L. Weekly D 1741, 2024 WL 3882110, in favor of the accused.

Mr. Rock was convicted after a trial as “a felon in possession of a firearm,” in violation of Fla. Stat. § 790.23. The Court agreed there was insufficient evidence of actual firearm possession to impose the mandatory minimum sentence under Fla. Stat. § 775.087(2)(a)1.

Mr. Rock resided in a one-room efficiency alone when arrested. He did not answer police officers’ demands to exit the efficiency for thirteen (13) minutes, during which time an officer had observed him lifting the mattress of his bed. After Mr. Rock was arrested, the police discovered a loaded firearm between the mattress and the box spring. The Court found that, based on the evidence, the court did not err in denying the defense lawyer’s motion for a judgement of acquittal.

The question of whether the state presented sufficient evidence of the “possession” to impose the mandatory minimum sentence is a separate issue. Fla. Stat. § 775.087(2)(a)1 provides in relevant part:

“…[A] person who is convicted for possession of a firearm by a felon… shall be sentenced to a minimum term of imprisonment of 3 years if such person possessed a ‘firearm’ … during the commission of the offense.”

Fla. Stat. § 775.087(4) defines “possession” as “carrying it on the person,” but “possession may also be proven by demonstrating that the defendant had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense.” Id. The state courts require a jury finding of actual possession to impose the three-year mandatory minimum for possession of a firearm by a convicted felon. See Banks v. State, 949 So.2d 353, 355 (Fla. 4th DCA 2007) (possession of a firearm by a felon is proven by actual or constructive possession, but factfinder must make a specific finding of actual possession for the sentencer to impose the mandatory minimum sentence under § 775.087(2)(a)1); Christian v. State, 313 So.3d 725, 728 (Fla. 2d DCA 2020)

(“While a finding of either actual or construction possession will support a conviction for possession of a firearm by a felon, case law is clear that a finding of actual possession is necessary to support imposition of the three-year mandatory minimum enhancement”)

Swain v. State, 226 So.3d 1002, 1004 (Fla. 1st DCA 2017) (“actual possession is required in order to sentence a defendant to a mandatory minimum sentence under . . . section 775.087(2)(a)1.”).

The trial evidence was insufficient to prove “possession” under either definition provided in § 775.087(4).

No witness observed the accused actually carrying the gun on his person, and other evidence was inconclusive as to whether Mr. Rock even touched the firearm.

Further, the state presented no evidence that the firearm was in his “immediate physical reach with ready access with the intent to use the firearm during the commission of the offense.” Id., § 775.087(4). Even assuming that the prosecution had presented evidence that the firearm had been in Mr. Rock’s immediate reach with ready access, there was no evidence of his “intent to use the firearm during the commission of the offense.” Id., § 775.087(4).

With the assistance of a knowledgeable criminal defense lawyer, Mr. Rock was spared the mandatory minimum sentence unlawfully imposed for his trial conviction as a “felon in possession of a firearm.” As Benjamin Franklin, one of the men who created our Constitution, wrote: “An investment in knowledge always pays the best interest.”