In Florida, it is a felony for anyone who has been convicted of a felony in any state or federal court to own or possess a firearm. If the defendant is caught in actual possession of the firearm (as opposed to constructive possession), the defendant is subject to a mandatory minimum sentence of three years in prison.
In a recent possession of a firearm by a convicted felon case south of Jacksonville, Florida, the defendant was a woman whose husband collected guns. The defendant was a convicted felon and could not own or possess any guns. After the husband died, the defendant ran into serious financial difficulties. To address this problem, the defendant and a friend went to a pawn shop and sold some of her husband’s guns. It was not clear whether the defendant actually touched any of the guns as the pawn shop clerk did not remember the transaction. The state was only able to recover the normal documents that are prepared in relation to a pawn transaction in Florida. Those documents showed the defendant did sign the pawn transaction form and had her fingerprints taken, as the law requires when a person pawns items he/she owns. She also received the money for the pawned guns.
Based on this evidence, the state charged her with possession of a firearm by a convicted felon. The criminal defense lawyer filed a motion to dismiss the gun charge. He argued that the state could not prove that the defendant actually possessed the guns or was in constructive possession of the guns since there was no testimony about the details of the transaction. The court agreed that the state could not prove actual possession of the firearms, but denied the motion to suppress. The documents from the pawn shop that were available were sufficient for the state to proceed on the theory that the defendant constructively possessed the guns. The fact that she was involved in taking the guns to the pawn shop and pawning them for money was evidence that she had knowledge of the guns and the ability to control them, which are essential elements of a constructive possession charge.
Based on this evidence, the order dismissing the case was reversed. The state was permitted to proceed with the possession of a firearm by a convicted felon charge based on construction possession of the guns. The appellate court did note, as it rarely does, that it seemed inappropriately odd that the state would spend time, money and resources on a case involving a new widow disposing of guns to help with her financial troubles. This type of conduct is clearly not why Florida has a law making it illegal for convicted felons to own and possess firearms. But, as we have seen many times, at times the government has trouble appreciating the difference between what it should do and what it can do.
If the state continues to prosecute this case and finds a jury that would actually convict this lady on these facts, fortunately, there would be no mandatory minimum prison sentence because the state does not appear to be able to prove actual possession of the firearms. However, the fact that a mandatory minimum prison sentence of three years was even in the conversation at some point illustrates how counterproductive and unjust mandatory minimum sentences often are, but that is a post for another day.