If you’re facing a felony gun charge in Miami, the outcome of your case depends on more than just whether a firearm was found. Other key factors include the legality of how it was found, the specific facts surrounding your arrest, and how well your defense team understands local law enforcement and court procedures.
Florida’s strict gun laws, including harsh mandatory minimum sentences under the 10-20-Life statute, mean that you must challenge the charge early and aggressively. From questioning the legality of a traffic stop or search to disputing whether you legally “possessed” the weapon, the best defenses target the prosecution’s weakest points before trial ever begins.
At the Rossen Law Firm, we build strategies tailored to how Miami-Dade courts actually operate. If you've been arrested and need to know what comes next, call us at (786) 705-8300. We’ll help you understand your options and how to protect your future.
Key Takeaways for Fighting a Miami Felony Gun Charge
- The legality of the police search is often the weakest point in the prosecution's case. A violation of your Fourth Amendment rights could lead to the firearm evidence being suppressed, potentially causing the entire case to be dismissed.
- Being near a gun is not the same as legally possessing it. The state must prove you knew the gun was there and had control over it, a difficult task in shared spaces like a car or home where constructive possession is the issue.
- Mandatory minimums raise the stakes. Florida's "10-20-Life" law imposes severe, non-negotiable prison sentences for gun crimes. This makes fighting the charges effectively at the pre-trial stage essential to avoid these harsh penalties.
What Does a "Felony Gun Charge" Actually Mean in Miami?
The term "felony gun charge" is a broad and intimidating label, and it covers two main scenarios under Florida law.
1. Possession of a Firearm by a Convicted Felon
This charge is defined entirely by your past status. Under Florida Statute § 790.23, if you have a prior felony conviction, it is a second-degree felony to simply be in possession of a firearm. The prosecution's job is relatively straightforward: they only need to prove that you have a prior felony conviction and that you knowingly possessed a firearm. Because of this, the defense typically hinges on the legal definition of "possession," which is more complicated than it sounds.
2. Committing a Felony While Possessing a Firearm
This charge is about an action, not just your status. It applies when you are accused of having a gun on you (or within your control) while committing another felony, such as robbery, drug trafficking, or aggravated assault. This is where Florida’s 10-20-Life law, formally Florida Statute § 775.087, becomes a major factor. This law imposes severe mandatory minimum sentences, which are fixed prison terms that a judge is legally required to impose and cannot go below.
Was the Search That Found the Firearm Lawful? Your First Line of Defense
The single most important question in many Miami gun charge cases is: How did the police find the gun? The answer to this question determines whether the evidence may be used against you. The Fourth Amendment to the U.S. Constitution protects every citizen from unreasonable searches and seizures by the government.
If law enforcement found the firearm by violating your rights, the evidence may be legally excluded from your case. This legal tool is known as a Motion to Suppress. It is a pretrial request made to the judge to throw out illegally obtained evidence. When a judge grants this motion in a gun case, the prosecution's case falls apart, as their most important piece of evidence is now inadmissible in court.
Our firm will meticulously investigate every detail surrounding your arrest to identify any constitutional violations. We seek answers to these questions:
Was the Initial Stop Justified?
Police are not permitted to simply pull you over in your car or stop you on the street without a valid reason. They must have what the law calls "reasonable suspicion," which is a collection of facts that would lead a reasonable person to believe you have committed, are committing, or are about to commit a crime. A vague reason or a "hunch" is not enough. We will analyze the police report and any available dashcam or bodycam footage to determine if the officer had a legitimate, legally sound reason to stop your vehicle or detain you in the first place.
Did the Officer Have the Right to Search?
Even if a stop was valid, an officer does not automatically have the right to conduct a search. Generally, they need a warrant, your consent, or what is called "probable cause." We examine this closely.
- Consent: Did you truly give free and voluntary consent for the officer to search, or did you feel pressured or intimidated into agreeing? Police officers are not required to inform you that you have the right to refuse a search. Any hesitation or coercion could invalidate your consent.
- Plain View Doctrine: Was the firearm genuinely in "plain view," such as sitting openly on the passenger seat? Or did the officer have to move items, open compartments, or shine a light into a dark space to find it? If an object is not immediately apparent, the plain view doctrine typically does not apply.
- Search Incident to Arrest: Police are permitted to search your person and the immediate area around you after a lawful arrest. However, the key word is "lawful." Did the officer have probable cause for that initial arrest? If the arrest itself was illegal, any evidence found during the subsequent search may be suppressed.
Was the Search Warrant Valid?
If a search warrant was used to search your home or property, that warrant is not automatically valid. We will examine the affidavit—the sworn statement the officer submitted to a judge to get the warrant—to see if it contained sufficient credible information to establish probable cause. We also look for misstatements, exaggerated claims, or information that was deliberately left out to mislead the judge.
What Does "Possession" Really Mean? Deconstructing the Prosecutor’s Case
Just because a gun was found in your car, your home, or your general vicinity does not automatically mean you legally "possessed" it.
Florida law recognizes two distinct types of possession:
- Actual Possession: This is the one most people think of. It's straightforward and means the firearm is physically on your person—in your hand, in your pocket, in a waistband, or in a bag you are carrying.
- Constructive Possession: This is far more complicated and is where many firearm defenses are built. Constructive possession applies when the firearm is not on your person but is in a place over which you have control. To prove constructive possession, the State must show two things: you knew the firearm was there, and you had the ability to take actual control of it.
This legal requirement creates significant opportunities to build a strong defense, especially in cases involving shared spaces like a car or a home. Consider these examples:
If a gun is found under the passenger seat of a car you were driving but that you do not own, and other people were in the car, how will the state prove the gun was yours? What if a firearm is discovered in a common area of a house you share with roommates? Will the prosecutor definitively prove it belonged to you and not one of the other residents?
We challenge weak constructive possession arguments by asking targeted questions and identifying sources of reasonable doubt.
- Were your fingerprints found on the firearm or on the ammunition inside it? The absence of your prints is evidence.
- Who is the registered owner of the gun?
- Was the firearm hidden in a location where you would not normally look or have access?
- Did anyone else have access to the vehicle or room where the gun was found?
What Are Other Ways to Defend Against a Felony Gun Charge?
Beyond challenging the legality of the search and the evidence of possession, several other powerful defense strategies may apply to your situation. These are also known as affirmative defenses. With an affirmative defense, we introduce new evidence to show that, even if the prosecution's claims are true, your actions were justified or excusable under the law.
Depending on the circumstances, we may be able to build a case around one of the following arguments:
- Self-Defense (Justifiable Use of Force): Florida's well-known "Stand Your Ground" law may protect you if you possess or use a firearm to defend yourself or others from an imminent threat of death or great bodily harm. This may even be a defense for a person with a prior felony conviction in certain, very limited circumstances where the possession was temporary and necessary to prevent a more serious crime.
- The Firearm Was an "Antique": Both federal and Florida law make an exception for certain firearms. A weapon manufactured in or before 1918, or a replica of such a weapon, may be legally classified as an "antique firearm." These are not subject to the same possession rules as modern firearms. While this is a rare defense, it is effective when applicable.
- Lack of Knowledge: You genuinely and truthfully did not know the firearm was in your presence. For instance, a friend may have borrowed your car and left their weapon under the seat without your knowledge.
- Temporary Possession: You may have briefly handled the firearm out of necessity, such as to take it away from someone else to prevent them from committing a crime, with the immediate intent to turn it over to the police.
How Does Florida's "10-20-Life" Law Affect Your Defense Strategy?
As alluded to earlier, this law removes a judge's discretion at sentencing and forces them to impose a harsh, predetermined minimum sentence if you are convicted of certain felonies while possessing a gun.
The penalties are triggered automatically upon conviction:
- 10 Years: For simply possessing a firearm during the commission of a specified felony.
- 20 Years: For pulling the trigger and firing the firearm.
- 25 Years to Life: For injuring or killing someone with the firearm.
The stakes are incredibly high from the moment you are charged. Prosecutors understand the power of this law and will use the threat of these long, mandatory sentences as leverage to pressure you into accepting a plea deal.
The existence of the 10-20-Life law makes pre-trial defense strategies, such as filing a Motion to Suppress or challenging the evidence of possession, essential for protecting your future. The goal is to weaken the prosecution's case so severely that these mandatory sentences never come into play.
Frequently Asked Questions About Fighting a Felony Gun Charge in Miami
Can my gun rights be restored in Florida after a felony conviction?
Restoring firearm rights after a felony conviction is an extremely difficult and lengthy process in Florida. It does not happen automatically once you complete your sentence. You must apply for a full restoration of your civil rights through the state's clemency board, a process that ultimately requires a pardon from the governor and three cabinet members.
Will a felony gun charge stay on my record forever?
Yes, in almost all circumstances. A conviction for a felony gun charge is a serious offense that is generally not eligible for sealing or expungement under Florida law. This means it becomes a permanent part of your public record, visible to potential employers, landlords, and anyone else who runs a background check.
What is a pretrial diversion program and could it help me?
For some non-violent, first-time offenders, Miami-Dade County offers pretrial intervention or diversion programs. If you are accepted and successfully complete the program, which could involve counseling, community service, or probation, the charges against you could be dismissed. However, eligibility is very restrictive and is ultimately decided by the State Attorney’s Office.
Do I need a lawyer if the gun wasn't mine?
Yes, absolutely. As we discussed under the concept of "constructive possession," the state may still charge you and secure a conviction even if the gun is not registered to you and you did not physically own it. You need a skilled legal advocate to gather and present evidence showing the firearm belonged to someone else and that you had no knowledge of its presence or control over it.
Does a Miami-Dade felony gun charge include federal charges?
A person may face both state and federal charges, though the vast majority of gun cases start in the state court system. Federal agencies like the ATF or FBI may become involved if the firearm crossed state lines, if the accused is a convicted felon, or if the case involves significant drug or organized crime components.
Federal charges, if pursued, carry separate penalties and take place in a completely different court system. The defense strategy changes significantly when federal charges are involved.
What legally constitutes a felony conviction for the charge of possession of a firearm?
For purposes of the charge under Florida Statute $ 790.23, a felony conviction means an adjudication of guilt in Florida or another jurisdiction, and includes a finding by a court that a person committed a delinquent act that would be a felony if committed by an adult.
The law applies even if the person received an early discharge from probation, and it includes convictions from federal court and other state courts. The key fact is that the conviction remains on your record and your civil rights are not restored.
Take Control of Your Future Today
You may feel like the evidence is stacked against you, but a charge is just the beginning of the story, not the end. The prosecution's case has potential weaknesses, and it is our job to find them. The specific details of your traffic stop, the search that was conducted, and the discovery of the firearm all contain opportunities to build a strong defense.
You do not have to let this charge define your life. The next step is to understand the specific facts of your case and your legal options.
Call the Rossen Law Firm for a confidential discussion about how we will help. Call us at (786) 705-8300.