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Florida Possession of a Firearm by a Convicted Felon Statute May Be Unconstitutional as Applied to Antique Firearms

In Florida, it is a felony crime for a person to have a firearm after he/she has been convicted of a felony crime. This is true even if the felony conviction occurred in another state. The term “possession” in the possession of a firearm by a convicted felon statute does not just mean a firearm a person is actually carrying; it can also apply to a firearm that is in one’s home, vehicle, office or other place where the state can prove the person knew it was there and had the ability to exercise some sort of control over it.

There is an exception to the Florida possession of a firearm by a convicted felon law that comes up every now and then. The criminal statute does not apply to antique firearms. In other words, if a firearm qualifies as an antique under the Florida statute, a convicted felon can possess it. An antique firearm is defined as a firearm manufactured in 1918 or earlier, or a replica thereof whenever manufactured, and any firearm using fixed ammunition made in 1918 or earlier, for which no ammunition is now made in the United States or readily commercially available. The exception here is fairly narrow, but there are collectors and other people who may have such old firearms. There are also people who may have newer replicas of such firearms who believe they are also an exception under the statute.

In a recent case south of Jacksonville, Florida, the defendant was arrested for being in possession of an old muzzle loader rifle. The rifle did not meet the simpler definition of an antique firearm as it was not manufactured in or before 1918, but the criminal defense lawyer argued it was a replica of such a firearm so the defendant was permitted to possess it even though he was a convicted felon. The defendant was convicted of possession of a firearm by a convicted felon at trial, but the criminal defense attorney appealed. He argued that the term “replica”, as it was used in the possession of a firearm by a convicted felon statute, was unclear. If a criminal statute is vague and unclear so that an ordinary person reading the statute would not be clearly informed what is illegal and what is not, the statute can be considered unconstitutional. In that case, the statute could not be used to prosecute that defendant or anyone else unless and until it was changed through the legislature to make it sufficiently clear.

The appellate court agreed and found that the possession of a firearm by a convicted felon statute was unconstitutional because it was not clear what is an illegal firearm and what is not in situations like this. The statute does not do a good enough job in defining a “firearm” or a “replica” so that an ordinary person reading the statute would know what can and cannot be possessed by a convicted felon.

The court that found the statute unconstitutional was not the Florida Supreme Court. Another court in Florida has issued a different opinion, and other courts may as well. If and when the Florida Supreme Court looks at this issue, the fate of this statute may be determined.