Fort Myers Felon in Possession of a Firearm Lawyer

Under Florida Statute Section 790.23, any person who has been convicted of a felony in Florida or any other state is prohibited from owning, possessing, or controlling a firearm, ammunition, or an electric weapon. That prohibition is not limited to physical ownership of a gun. Florida courts have consistently held that “possession” includes constructive possession, meaning a person can face this charge even if the firearm was found in a vehicle, a shared residence, or a location where they had access and knowledge of the weapon’s presence. For anyone charged under this statute, the distinction between actual and constructive possession is one of the most consequential legal questions in the case. An experienced Fort Myers felon in possession of a firearm lawyer from Drew Fritsch Law Firm, P.A. understands exactly how prosecutors in Lee County approach these distinctions and how to challenge the assumptions they rely on.

What Florida Statute 790.23 Actually Prohibits

The statute covers a broad category of people. Convicted felons fall under its scope, but so do individuals convicted of delinquent acts that would qualify as felonies if committed by an adult, those who have had adjudication withheld on a felony charge if they have not had their civil rights restored, and people subject to certain domestic violence injunctions. The range of people who can be charged under this law is wider than most defendants initially realize when they are arrested.

What qualifies as a “firearm” under 790.23 is also interpreted broadly. Beyond handguns and rifles, the statute encompasses any destructive device, as defined under Florida law. Antique firearms are generally excluded, but that exclusion is narrowly applied and fact-specific. Ammunition stored separately from a firearm can still support a charge if the prosecution can tie it to the same constructive possession theory. That last point is genuinely underappreciated: a person can face a serious felony charge based solely on a box of shells found in a shared closet.

The charge itself is a second-degree felony under Florida law. That carries a maximum sentence of fifteen years in Florida State Prison. Under Florida’s 10-20-Life sentencing structure, certain enhancements apply if the firearm was used or discharged during another offense, though 790.23 prosecutions often proceed independently of those enhancements. The base exposure alone, fifteen years, makes this one of the more serious weapon-related charges prosecutors can bring.

How These Cases Move Through Lee County Courts

Felon in possession cases in Lee County typically originate from one of a few scenarios: a traffic stop that leads to a search, a domestic disturbance call where law enforcement discovers a weapon in the home, or an arrest on an unrelated charge where a firearm turns up during booking or a subsequent search. Each originating circumstance creates a different set of evidentiary questions, and the path through the Lee County court system reflects those differences.

After arrest, the case proceeds to the Lee County Justice Center in Fort Myers, where initial appearances and bond hearings are handled. Because this is a felony charge, the case is prosecuted in the Twentieth Judicial Circuit Court. That distinction matters. Circuit court prosecutions in Lee County carry the full weight of state-level felony procedure, including grand jury consideration in some cases, formal discovery timelines, and the possibility of mandatory minimum sentencing arguments from the prosecution. A defense attorney who knows how the Twentieth Judicial Circuit’s judges and assistant state attorneys approach these cases has a structural advantage over one who does not.

Bond hearings in felon in possession cases often involve arguments about flight risk and public safety. Prosecutors will frequently point to the prior felony conviction itself as evidence of dangerousness. A well-prepared defense at the bond stage can mean the difference between a client who is held pretrial and one who is released and able to assist actively in preparing their own defense. That early phase of the case is where the trajectory often gets set, and it is a phase Drew Fritsch understands from both sides of the courtroom, having served as a former Charlotte and Lee County prosecutor.

The Constructive Possession Defense in Florida

Florida courts require the state to prove two things to establish constructive possession: that the defendant knew of the firearm’s presence and that the defendant had the ability to exercise dominion and control over it. Both elements must be established beyond a reasonable doubt. When a firearm is found in a location where multiple people had access, the prosecution cannot simply point to proximity. Knowledge cannot be assumed, and control cannot be inferred from location alone without corroborating evidence.

The unusual angle that many defendants miss is this: in joint occupancy situations, Florida law places a significantly higher burden on the state. A person found in a car with three other occupants and a firearm under the passenger seat does not automatically satisfy the elements of 790.23. The prosecution must establish something more, whether that is statements made by the defendant, fingerprint evidence, prior knowledge of the firearm, or other facts specific to that individual. Challenging constructive possession is not a Hail Mary defense. It is a statutorily grounded argument with substantial appellate support in Florida case law.

Search and seizure issues are also central to many of these cases. If law enforcement conducted an unlawful stop, exceeded the scope of a consent search, or lacked probable cause to search a vehicle or residence, the firearm itself may be suppressible as evidence. If the firearm is suppressed, the state’s case often collapses entirely. That kind of constitutional challenge requires an attorney who knows Fourth Amendment law at a granular level and has experience litigating suppression motions in Florida circuit courts.

Prior Record, Sentencing, and What Comes Next

Sentencing under Florida’s Criminal Punishment Code is driven heavily by a defendant’s prior record score. A person with a lengthy felony history who is convicted under 790.23 faces a substantially different sentencing calculation than someone whose prior conviction was a single non-violent offense from years ago. The scoresheet calculation matters enormously, and errors in how the state calculates prior offenses are not uncommon. Reviewing that scoresheet for accuracy is a concrete and often overlooked defense function.

Plea negotiations in these cases are a legitimate part of the defense strategy when the evidence is strong. Prosecutors in Lee County sometimes agree to reduced charges or recommended sentences in exchange for a plea, particularly when the defense has successfully challenged aspects of the evidence or demonstrated weaknesses in the constructive possession theory. That negotiating leverage does not arise automatically. It is built through preparation, filing substantive motions, and demonstrating that the case will be contested aggressively at trial if necessary.

For someone whose civil rights were restored after their original felony conviction, that restoration may serve as a complete defense under 790.23. Florida law permits a person whose civil rights, including the right to possess a firearm, have been properly restored to legally possess weapons. The specifics of how those rights were restored and whether the restoration was comprehensive are critical factual questions that require careful legal analysis.

Common Questions About Felon in Possession Charges in Fort Myers

Does a felony conviction from another state trigger Florida’s 790.23 prohibition?

Yes. Florida Statute 790.23 expressly applies to convictions under the laws of any state, the United States, or any foreign country. A prior felony conviction from Georgia, Ohio, or anywhere else carries the same legal weight under this statute as a Florida conviction. The key question is whether the out-of-state offense qualified as a felony in that jurisdiction at the time of conviction.

Can a withhold of adjudication on a prior felony charge count as a “conviction” for 790.23 purposes?

This is one of the more nuanced areas of the statute. Under Florida law, a withhold of adjudication is generally not a conviction for most purposes. However, 790.23 specifically includes individuals who have had adjudication withheld on a felony unless their civil rights have been restored. The statute casts a wider net than many defendants expect, and this distinction has led to prosecutions that genuinely surprise people who believed they were legally permitted to possess a firearm.

What is the difference between the 790.23 charge and a federal felon in possession charge under 18 U.S.C. 922(g)?

Both statutes prohibit felons from possessing firearms, but federal prosecutions under 922(g) can result in significantly harsher sentences, particularly when the Armed Career Criminal Act applies. Federal cases are prosecuted in the United States District Court for the Middle District of Florida and involve federal sentencing guidelines rather than Florida’s Criminal Punishment Code. A case may be charged in state court, federal court, or both, depending on the circumstances and investigative agency involved.

If the firearm belonged to someone else, does that eliminate the charge?

Ownership is not the operative legal concept in Florida’s felon in possession statute. Possession, not ownership, is what the state must prove. A defendant who did not own the firearm but knowingly had it within their reach and control can still be convicted. However, evidence that the firearm exclusively belonged to and was controlled by another person can be used to challenge the constructive possession theory effectively.

How does an attorney challenge a firearm found during a traffic stop in Lee County?

The defense begins with the lawfulness of the stop itself. Under Florida law and the Fourth Amendment, law enforcement must have reasonable suspicion to initiate a traffic stop. If that threshold was not met, everything discovered during the stop, including the firearm, may be suppressed. Beyond the stop, any search of the vehicle requires either consent, probable cause, or a valid warrant exception. Gaps in any of these requirements are grounds for a suppression motion filed with the circuit court.

Can these charges be expunged or sealed after the case concludes?

Florida’s expungement statute, Section 943.0585, is not available to individuals who have been convicted of a crime. If a defendant is convicted under 790.23, the record generally cannot be sealed or expunged. If charges are dropped or the defendant is acquitted, expungement eligibility returns to the standard statutory criteria. This reality underscores why achieving the strongest possible outcome at the outset, whether through dismissal, acquittal, or a plea to a lesser charge, has lasting consequences beyond the immediate case.

Lee County Areas and Communities We Represent

Drew Fritsch Law Firm, P.A. represents clients charged with weapon offenses throughout Southwest Florida. The firm serves Fort Myers and its surrounding communities, including Cape Coral across the Caloosahatchee River, Lehigh Acres to the east, and Estero in the southern portion of Lee County. Clients come from communities throughout the region, including Bonita Springs near the Lee and Collier county line, as well as clients from inland areas of the county who must appear at the Lee County Justice Center on Martin Luther King Jr. Boulevard in Fort Myers. The firm also handles cases arising in Collier County courts in Naples, in Charlotte County courts in Port Charlotte and Punta Gorda, and in Sarasota County.

Early Legal Involvement in Fort Myers Felon in Possession Cases

The window between arrest and the first substantive court appearances is the most important and most often wasted phase of these cases. Evidence is preserved or lost. Witnesses are reachable or they are not. Suppression arguments are strongest when the facts of the stop and search are fresh and the attorney can move quickly to preserve them. In felon in possession cases, where the entire prosecution often rests on a single piece of physical evidence, the ability to challenge that evidence’s admissibility early, and thoroughly, determines the arc of the entire case. A Fort Myers felon in possession attorney from Drew Fritsch Law Firm, P.A. brings former prosecutorial experience from Lee County to that early strategy work, offering a direct understanding of how the state builds these cases and where those cases can be taken apart. Reach out to our firm as early as possible to begin that process.