Possession of a Firearm During the Commission of a Felony
The best way to understand crimes alleged under Section 790.07 is to read the standard jury instructions found in Section 10.3. The standard jury instructions under Section 10.3 address the crime of “PERSONS ENGAGED IN CRIMINAL OFFENSE HAVING [WEAPON] [ELECTRIC WEAPON OR DEVICE] [CONCEALED WEAPON] [FIREARM] [CONCEALED FIREARM]” in violation of Section 790.07(1) and (2), Fla. Stat.
As you can see from the jury instructions, the word “possession” is not actually an element of the offense. In fact, the prosecutor must actually prove more than just possession, it must prove that the firearm was concealed, or that it was displayed, used, threatened to used, or attempted to used.
The jury instruction provides that to prove the crime charged under Section 790.072, the prosecutor with the State Attorney’s Office must prove the following two elements beyond a reasonable doubt:
- The Defendant either:
- [displayed] [used] [threatened to use] [attempted to use][a weapon][a firearm] or [an electric weapon or device]; or
- carried a [weapon] [firearm], that was concealed from the ordinary sight of another person.
- The Defendant did so while either:
- committing or attempting to commit a[n] (felony alleged)]; or
- while [under indictment].
The jury instructions must define the felony alleged because not all felony offenses apply. For example, Section 790.07(3), Fla. Stat., explicitly excludes certain types of felony offenses which is provides that the felony cannot be antitrust violations, unfair trade practices, restraints of trade, nonsupport of dependents, bigamy, or other similar offenses.
One of the most common ways the offense is charge is listed on the clerk of court’s website docket page as “790.072-WEAP2050 (FS) POSS OF FIREARM DURING COMMISSION OF FELONY.”
Attorney for Firearm Crimes under Section 790.07
The attorneys at Sammis Law Firm represent clients charge with a wide range of firearm charges including possession of a firearm during the commission of a felony or while under indictment. We understand the special defenses that might apply for an alleged violation of Section 790.07(1) or Section 790.07(2).
We also represent clients on related charges for carrying a concealed firearm in violation of Section 790.01, carrying a concealed weapon in violation of Section 790.01, and improper exhibition of dangerous weapon in violation of Section 790.10.
We understand what types of underlying felony must be shown, and how to assert other important defenses.
We have offices in downtown Tampa near the George Edgecomb Courthouse in Hillsborough County, in Clearwater near the Criminal Justice Center (CJC) courthouse in Pinellas County, and in New Port Richey near the West Pasco Judicial Center in Pasco County.
Call 813-250-0500.
Penalties for Crimes under 790.07
Any crime charged under Section 790.07(1) or 790.07(2) might be bumped up to a first-degree felony if a defendant has previously been convicted of subsection (1) or (2). See § 790.07(4), Fla. Stat.
The standard jury instructions note that as of November 2019, Florida law is unclear about:
- whether the existence of a prior conviction will be treated as an element of the crime that must be found by the jury in a bifurcated proceeding; or
- whether a prior violation can be proven to the judge at sentencing. It is also unclear whether a conviction includes a withhold of adjudication.
A special instruction will be necessary in cases where the deadly weapon was an animal or a substance or something that is not commonly referred to as an “object.”
Other Definitions for Crimes under Section 790.072
The standard jury instructions for crimes under Section 790.072 were first adopted in 1981, and amended in 1989, 1992, and on April 3, 2020.
When the crime allegedly involves a firearm, the term firearm must be defined under Section 790.001, Fla. Stat. For this reason, the judge might tell the jury that the term “firearm” means:
- any weapon [including a starter gun]
- which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive;
- [the frame or receiver of any such weapon;]
- [any firearm muffler or firearm silencer;]
- [any destructive device;]
- [any machine gun].
The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of another crime. An antique firearm is defined in Section 790.001, Fla. Stat. A destructive device is defined under the definition provided in Section 790.001, Fla. Stat.
If the crime involves an accusation that a weapon other than a firearm was used, then the following terms might require a definition:
- Slungshot as defined in § 790.001, Fla. Stat.
- “Weapon” is any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.
- “Electric weapon or device” means any device which, through the application or use of electrical current, is designed, redesigned, used, or intended to be used for offensive or defensive purposes, the destruction of life, or the infliction of injury.
The standard jury instructs note the conflict within the district courts about whether an open common pocketknife is a weapon. However, an open pocketknife could constitute a weapon. Porter v. State, 798 So. 2d 855 (Fla. 5th DCA 2001); J.R.P. v. State, 979 So. 2d 1178 (Fla. 3d DCA 2008). If a common pocketknife is open, it is still considered to be a common pocketknife. G.R.N. v. State, 220 So. 3d 1267 (Fla. 4th DCA 2017).
If applicable, the term “ordinary sight of another person” means the casual and ordinary observation of another in the normal associations of life. A [firearm] [weapon] need not be completely hidden for you to find that it was concealed. However, a [firearm] [weapon] is not concealed if, although not fully exposed, its status as a [firearm] [weapon] is detectable by ordinary observation.
Other terms the court might need to define during the jury instructions include:
- A “concealed weapon” means any dirk, metallic knuckles, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such manner as to conceal the weapon from the ordinary sight of another person.
- A “deadly weapon” is any object that will likely cause death or great bodily harm if used in the ordinary and usual manner contemplated by its design and construction. An object not designed to inflict bodily harm may nonetheless be a “deadly weapon” if it was intended to be used in a manner likely to cause death or great bodily harm.
- “Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.
Lesser includes offenses of Section 790.07 crimes might include:
- Carrying concealed firearm 790.01
- Carrying concealed weapon 790.01
- Improper exhibition of dangerous weapon 790.10
This article was last updated on Monday, April 6, 2026.
