Our Gun Defense Lawyers at William Moore Criminal Defense represent clients in Broward County and Broward County.
"Fort Lauderdale Criminal Attorney William Moore argues that to impose a three-year mandatory minimum sentence, the fact finder must make a finding of -actual- possession." - William Moore
For example, the evidence was insufficient to support the defendant's conviction for possession of firearm by convicted felon, absent direct evidence establishing actual possession or knowledge of the weapon's existence; there was evidence that the defendant was paralyzed in the lower extremities, that without assistance he could not access anything placed underneath the seat cushion on which his body rested in the wheelchair, and that he did not assemble the wheelchair used to transport him to the entrance of the nightclub from the vehicle in which he arrived with other persons.
For more information on what the State Attorneys Office must prove in order to convict an individual for possessing a firearm contact our Fort Lauderdale Gun Lawyers at The William Moore Law Firm. Our Firearm Attorneys provide years of legal experience and knowledge in Gun Laws. Contact our Broward office for any legals questions.
Our gun lawyers remind you that knowledge of the presence of the weapon or firearm must be proven. Thus, the evidence did not support a conviction of a felon in possession of a firearm where the defendant denied any knowledge of a gun in the trunk of his girlfriend's car, the girlfriend testified that the gun belonged to her ex-boyfriend and that she had forgotten that she had placed it in the trunk, and there was no evidence that defendant made incriminating statements or acknowledged the presence of the gun.
Whether the defendant was in knowing possession of a gun found in his or her hand is a question for the jury, and proper instructions must be provided to the jury. The statute does not infringe upon a fundamental right, for purposes of the procedural due process analysis. Fort Lauderdale gun lawyers will be able to explain Florida gun laws in greater detail.
The possession or required knowledge can be either actual or constructive. A defendant has actual possession when there is evidence that the firearm was unqualifiedly and knowingly in his care, custody, or control. Examples of such evidence include eyewitness testimony placing the firearm within the defendant's grasp, with which direct evidence knowledge may be presumed or inferred since possession is deemed actual rather than constructive; or where a police officer plain views a firearm in a motor vehicle over which the defendant has control. With a sentient person who suffers no disability, a firearm within hand's reach of a cushion concealing a gun is sufficient direct evidence of care, custody, possession, or control of the weapon.
Fort Lauderdale gun lawyers argue that to establish that the defendant had constructive possession of a firearm, the State must show that the defendant knew of its presence and of its illicit nature, and had or shared dominion and control over it.
"Constructive possession" exists where a person, without physically possessing a firearm, knows of its presence on the premises and has the ability to maintain control over it. When a vehicle is jointly occupied, a defendant's mere proximity to contraband is insufficient to establish constructive possession. For example, evidence that a gun was found wrapped in a handkerchief in a car defendant was driving, and that there was a passenger inside the car when it was stopped by police officers was insufficient to establish that the defendant had actual or constructive possession of a firearm, as required to support conviction for possession of a firearm by a felon.
Mere circumstantial evidence of possession is insufficient if it is inconsistent with a reasonable hypothesis of innocence.
Gun lawyers Illustration: The evidence was insufficient to establish the defendant's constructive possession of a firearm that was found in a vehicle driven by defendant and also occupied by two other persons; although the gun was found on the driver's seat after the defendant and other occupants fled the car to escape capture, the defendant's fingerprints were not found on the gun, and the evidence was not inconsistent with one of the passengers having placed the gun on the seat when they fled.
The State produced no admissible evidence that the defendant possessed a pistol prior to the altercation in which the victim was shot and killed, precluding conviction for possession of a firearm by a felon where the only evidence was prior statements that were inconsistent with the trial testimony of witnesses that they could not say who produced the gun during the altercation, and such prior statements could be used only for impeachment and not as substantive evidence. Similarly, the evidence was insufficient to show that the defendant had constructive possession of a handgun and ammunition found in the front passenger compartment of a vehicle in which the defendant was the driver and one other person sat in the rear behind the front passenger seat, as required to support conviction for possession of a firearm or ammunition by a convicted felon; nothing, other than the defendant's proximity, indicated that the defendant had control over the handgun or ammunition.
Gun lawyers caution that in a constructive possession case, it is the State's burden to prove beyond a reasonable doubt that the defendant knew of the presence of the illegal items, was able to exercise dominion and control over them, and knew of their illicit nature. A defendant's admission to his probation officer that he had possessed a firearm after his convictions was sufficient to establish the defendant's constructive possession of a firearm during the time period charged in the information so as to support a conviction for possession of firearm by a convicted felon.
Fort Lauderdale gun defense attorneys argue that to impose a three-year mandatory minimum sentence, the fact finder must make a specific finding of actual possession. The record failed to support imposition of minimum mandatory term of three years following conviction for possession of firearm by convicted felon, where the firearm was found in defendant's bedroom closet rather than on his person, and thus, possession of firearm was not "actual." Similarly, the imposition of the three-year mandatory minimum sentence for possession of firearm was not warranted, though the defendant was convicted of possession of a firearm by a convicted felon, where the defendant was not charged with or proven to have been in actual possession of the firearm.
The defendant was in constructive rather than actual possession of a firearm, and thus, imposition of the three-year minimum mandatory sentence for possession of a firearm by a convicted felon conviction was error, where the information filed by the State did not specifically charge the defendant with being in actual possession of a firearm, and no proof was presented to the trial court that the defendant was in actual possession of a firearm. In another case, the three-year mandatory minimum sentence applicable to convictions for possession of a firearm by a convicted felon was improper for the offense of possession of a firearm by a delinquent which offense was not specifically enumerated in sentencing statute.
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