Restoration of Gun Rights

November 7, 2018

Restoring Gun Rights In Florida After A Felony Conviction

The rules surrounding Restoration of Gun Rights can be confusing. It is a very detailed process and having the help of an experienced attorney who knows how to navigate the system can help! Restoration of Gun Rights requires an application to the Florida Clemency Board to begin the process. The application requires certified court documents; specifically, a copy of the charging instrument (indictment, information, or warrant with supporting affidavit) for each felony or misdemeanor conviction (if needed), and a certified copy of the judgment and sentence for each felony or misdemeanor conviction. Pursuant to Florida Statute, those documents should be provided free of charge for the purpose of a clemency application. When the Clemency Board receives an application, it is screened for eligibility regarding time frames and all documents are reviewed. If the Applicant is eligible, the application is forwarded for investigation by the Office of Clemency Investigations. Cases are assigned on a first-come, first-serve basis and the process can be lengthy. If the application meets requirements, a report is prepared, and the application is forwarded to the Clemency Board for a decision.

The Specific Authority to Own, Possess, or Use Firearms restores to Applicants the right to own, possess, or use firearms, which were lost as a result of a felony conviction.
The Clemency Board will not consider requests for firearm authority from individuals convicted in federal, military, or out-of-state courts.

October 5, 2018

New Federal Decision Regarding DUI and Second Amendment Gun Rights

by David M. Goldman

In a U.S. District Court decision issued on September 28, 2018 by Chief Judge Christopher C. Conner from the Middle District of Pennsylvania, the Court ruled that the felon-in-possession ban of 18 U.S.C. §922(g)(1) is unconstitutional as to Raymond Holloway, Jr. in violation of the Second Amendment to the United States Constitution.

18 U.S.C. §922(g)(1) states that “it is unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year…to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

Raymond Holloway, Jr. was charged with DUI and speeding in December 2002 in violation of Pennsylvania law, but he completed a diversion program and the charges were dismissed. In January 2005, he was again arrested and convicted for DUI at the highest rate of alcohol and it was a misdemeanor in the first degree. He completed his sentence in March 2006. In September 2016, Holloway tried to purchase a firearm and his application was denied following an instant background check. Upon appeal, Pennsylvania State Police stated that pursuant to 18 U.S.C. §922(g), the DUI conviction prohibited him from buying a firearm. Holloway filed suit challenging the Code under the Second Amendment of the United States Constitution.

August 9, 2018

Everything You Wanted to Know About Florida Conceal Carry Licenses

by David M. Goldman

The Florida Department of Agriculture and Consumer Services (the Department) issues licenses to carry concealed weapons or concealed firearms in the State of Florida and they are good for 7 years. Concealed weapons or concealed firearms are defined as a handgun, electronic weapon or device, tear gas gun, knife, or billie, but does not include a machine gun. You must carry the license at all times you have possession of the weapon or firearm and must display the license and valid I.D. upon demand by a law enforcement officer or be assessed a $25 fine for a violation.

According to section 790.06, Florida Statutes, the Department shall deny a license if the applicant has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence constituting a misdemeanor, unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled or the record has been sealed or expunged. The Department shall revoke a license if the licensee has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence within the preceding 3 years.

The Department shall, upon notification by a law enforcement agency, a court, or the Florida Department of Law Enforcement (FDLE) and subsequent written verification, suspend a license or the processing of an application for a license if the licensee or applicant is arrested or formally charged with a crime that would disqualify such person from having a license until final disposition of the case. The Department shall suspend a license or the processing of an application for a license if the licensee or applicant is issued an injunction that restrains the licensee or applicant from committing acts of domestic violence or acts of repeat violence.

February 2, 2018

UPDATE: Certain Convicted Felons in Florida Could Have Another Option for Civil Right Restoration

by David M. Goldman

Recently, I wrote about new House Bill 903, the Economic Redemption and Restoration of Constitutional Rights Act. If passed, this law would authorize certain convicted felons to petition for constitutional or civil rights to be restored in the circuit court of the county in which the felon resides or in the county where the felon was convicted. At that time, a class-action lawsuit, Hand v. Scott, was pending against Gov. Rick Scott, the Clemency Board, and six other state officials, including the Secretary of State and the Department of Corrections Head. The lawsuit was filed by the Fair Elections Legal Network “FELN,” on behalf of nine former felons.

According to the FELN, Florida is one of four states that denies the right to vote to all former felons until they petition for rights restoration, and 1.68 million Floridians currently do not have the right to vote due to a felony conviction (the highest state total in the nation). Over 10,000 are waiting for a hearing on their restoration applications. If no new applications were submitted, it would take the Clemency Board almost 51 years to hear the entire backlog of applicants.

As cited from a FELN press release:

November 27, 2017

Restoring Your Firearm Rights in Florida After a Felony Conviction

by David M. Goldman

Restoring your gun rights can be a difficult process and you may have questions about how to start the process. Be aware that the process takes a long time and the Clemency Board in charge of processing applications has a large backlog. The sooner you contact a lawyer in Jacksonville, the better.

Can I restore my right to use firearms after a felony conviction in Florida?

Under the Rules of Executive Clemency, you may apply to the Clemency Board for the specific authority to own, possess, or use firearms that was lost as a result of a felony conviction. The Florida Clemency Board will not consider requests from those who were convicted in federal, military, or out-of-state courts.

July 16, 2014

Voting, Firearm, and Other Civil Rights Restoration in Florida; Requirements and Procedure

by David M. Goldman

In Jacksonville, and throughout the State of Florida, a bad decision that leads to a felony conviction can strip a person of his or her civil rights for life. Without a restoration of civil rights, a convicted felon cannot possess a firearm, serve on a jury, vote, hold public office, and more. Perhaps the most hurtful rights to have taken from a convicted felon are the rights to vote and bear arms. The Florida Constitution takes the right to vote as a result of a felony conviction, while Florida Statute 790.23 makes it illegal for a felon to possess a firearm and creates a three (3) year mandatory minimum sentence that must apply for those convicted of the offense. Although it is possible to have one’s civil rights restored, the number of convicted felons having their rights restored has dropped in recent years, according to News4Jax.com.

Automatic restorations implemented by former Governor Charlie Crist were done away with soon after current Governor Rick Scott came into office in 2011. Since Scott took office, the number of civil rights restorations has dropped significantly. There have only been approximately 1200 since Governor Scott was elected to office, compared to more than 150,000 during Crist’s administration.

The Office of Executive Clemency is the Florida agency that oversees the restoration of civil rights for Florida convicted felons. There are similar, but slightly different procedures that exist, depending on the level of civil rights restored and the seriousness of the underlying offense; each requires an investigation into the applicant that wishes to have his or her civil rights restored.
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August 3, 2012

Florida Gun Permits Set to Cross the Million Mark

by David M. Goldman

Given the worry surrounding the Colorado movie theater slaying, background checks for concealed weapons permits have jumped tremendously across the country. Recent data indicates the jump is as much as 14% in Florida. That translates to an extra 2,386 requests for permits in the week since the shooting at The Dark Knight Rises premier in Aurora.

People across the country have moved to get concealed weapons permits partially out of a desire for protection and partially out of fear that increased government regulations may be lurking in the not so distant future. While the whole country has seen a surge in gun purchases, the bump in Florida puts the state very close to an important milestone.

Currently, Florida has around 950,000 citizens with concealed weapons permits which means the state is getting very close to becoming the first state in the nation to issue one million such permits. According to the Florida Agriculture Commissioner, Adam Putnam, Florida issues around 15,000 such permits each month which should mean the state crosses the million mark around the end of the year.

June 12, 2012

Can I be charged with the Possession of a Firearm by a Convicted Felon if My Spouse owns the weapon?

by David M. Goldman

Many convicted Florida Felons have changed their ways and have led successful and productive lives following their criminal convictions. Nevertheless, until their gun rights have been restored, they are not permitted to have in their care, custody, possession, or control a firearm, electric weapon/device, or ammunition. These restraints on a person’s Gun Rights are listed under Florida Statute § 790.23. However, the question arises, “Can I be charged with possession of a firearm by a convicted felon if it is my spouse who owns the firearm?”

Whether or not one can be charged with a Jacksonville Possession of a Firearm by a convicted felon that his or her spouse owns will depend on the definitions of “care, custody, possession or control.” ‘Care’ and ‘custody’ mean immediate charge and control exercised by a person over the named object.” The term “possession” is defined as the ability “to have personal charge of or exercise the right of ownership, management, or control over an object.”

Under Florida Law, a Jacksonville convicted felon can either actually or constructively possess a firearm. Actual possession occurs when the firearm is on the convicted felon’s person or so close that it is readily within his or her reach. Just because the firearm is very close to the convicted felon, there is no actual possession of the firearm if he or she is not in a position to exercise control over it. One is in constructive possession if the firearm is located in a place that the felon has concealed or a place that the felon has control over.

March 29, 2012

How Social Media could Negatively Impact your Criminal Case

by David M. Goldman

As a Jacksonville Criminal Defense Lawyer I work zealously to represent my clients and provide the best defense possible, given their current situation. However, my job is complicated when Social Media Sites are utilized by the State Attorney’s Office to prove their case. A recent example of Social Media negatively impacting a Florida Criminal Case occurred Brevard County.

Convicted Felon, Christopher Wharf, was arrested last Thursday for possession of a Firearm by a convicted felon, possession of ammunition by a convicted felon, and possession or use of a weapon while under indictment. How do you ask he was arrested for such crimes? Pictures and Videos posted on Facebook!! No the police did not arrive while he was firing the weapon, or actually see him in physical control. But, since pictures and video clearly show Wharf with a weapon and discharging said weapon, the Criminal Defense Attorney has a huge burden to overcome.

As a Criminal Defense Attorney in Duval, St. Johns, Clay, and Nassau Counties I advise them about the availability of Social Media Sites information to the State Attorney and the negative impact that could have on one’s Florida Criminal Case. This is a prime example of this advice. Who knows if the Police would have discovered Wharf’s extracurricular activities if he had not posted pictures and videos of his activities on the Internet, especially Facebook.