Criminal Defense Questions: Found Guilty of Carrying Concealed Firearm Without Knowledge

Question: A friend borrowed my truck and in the process placed his shotgun behind the seat. I was never made aware of it, and when I was driving a known Game Warden pulled me over and searched my vehicle, finding the shotgun. I told him I didn’t know about it, but I knew who it was, and I was still arrested. Can I fight the charges because I didn’t know the firearm was there?

Amir’s Answer: As most of my colleagues would agree, the basis for your stop and the search of your vehicle are very important aspects of your case. That said, I often find it helpful to review the jury instructions with my clients, and while I’m not providing you legal advice by responding to this question, I think you’ll find this instruction to be helpful. You can read it at the Florida Supreme Court’s website.

1. (Defendant) had been convicted of [(prior offense)] a felony.

Give 2a or 2b as applicable.
2. After the conviction, (defendant) knowingly

a. [owned] [had in [his] [her] care, custody, possession, or control]

[a firearm]
[an electric weapon or device]
[ammunition].

b. [carried a concealed weapon.]

Definitions.
“Convicted” means that a judgment has been entered in a criminal proceeding by a court pronouncing the accused guilty.

Give as appropriate.
[A “firearm”] [“Ammunition”] [An “electric weapon or device”] [A “concealed weapon”] is legally defined as (insert the definition in § 790.001, Fla. Stat.).

Give if appropriate.
A “deadly weapon” is legally defined as one likely to produce death or great bodily injury.

Give if 2a alleged.
“Care” and “custody” mean immediate charge and control exercised by a person over the named object. The terms care, custody, and control may be used interchangeably.

Possession.
To “possess” means to have personal charge of or exercise the right of ownership, management, or control over an object.

Possession may be actual or constructive.

Actual possession means

a. the object is in the hand of or on the person, or

b. the object is in a container in the hand of or on the person, or

c. the object is so close as to be within ready reach and is under the control of the person.

Give if applicable.
Mere proximity to an object is not sufficient to establish control over the object when the object is not in a place over which the person has control.

Constructive possession means the object is in a place over which (defendant) has control, or in which (defendant) has concealed it.

If an object is in a place over which (defendant) does not have control, the State establishes constructive possession if it proves that (defendant) (1) has knowledge that the object was within (defendant’s) presence, and (2) has control over the object.

Possession may be joint, that is, two or more persons may jointly possess an object, exercising control over it. In that case, each of those persons is considered to be in possession of that object.

If a person has exclusive possession of an object, knowledge of its presence may be inferred or assumed.

If a person does not have exclusive possession of an object, knowledge of its presence may not be inferred or assumed.

 



Author: Amir Ladan
A former assistant state attorney for Orange/Osceola Counties, Amir has handled thousands of cases and dozens of trials, ranging from DUI and traffic offenses to murder, in both adult and juvenile court.
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