Petition to Remove Firearm Disability in Florida

If you were committed to a mental institution or adjudicated mentally defective after agreeing to treatment as those terms are defined in Section 790.065(2), then you are not permitted to own or possess a firearm unless or until you receive relief from the disability through a court order.

This kind of disability might arise if you were subjected to a Baker Act or Marchman Act or any of the following occurred:

• found by Court to be of Imminent Danger but permitted by a physician to transfer to voluntary status in lieu of involuntary placement order under s. 790.065, F.S.;
• judicial finding that a criminal defendant was not competent to stand trial under s. 916.12, F.S.;
• acquittal by reason of insanity under s. 916.15 F.S. of a person charged with a criminal offense;
• adjudicated incapacitated under s. 744.331, F.S. or any similar law of any other state;
• ordered to Involuntary Outpatient Placement under s. 394.4655, F.S.;
• ordered to Involuntary Inpatient Placement under s. 394.467(6), F.S.;
• ordered to Involuntary Substance Abuse Treatment under s. 397.6957, F.S.; or
• ordered to Involuntarily Substance Abuse Assessment and Stabilization under s. 397.6818, F.S.

In 2013, Florida enacted Fla. Stat. § 790.065(2)(a)(4)(b)(II) to include a person voluntarily admitted to a mental institution for outpatient or inpatient treatment in the definition of “committed to a mental institution” if:

1. an examining physician has determined that the person poses an imminent danger to self or others and has certified that it would have filed a petition for involuntary commitment if the person had not agreed to voluntary treatment;
2. the person has been given notice and an opportunity to contest this certification; and
3. a court has reviewed this certification and ordered the person’s record to be submitted.

Such a disability would also prohibit you from purchasing a firearm. That notation might cause you to be arrested if you possess a firearm or try to purchase one. The notation also means you are not eligible to obtain or maintain a concealed weapons or firearm license.

You can petition the court to restore your rights to possess a firearm and be issued a concealed carry permit by filing the petition to remove the firearm disability.

Be aware that the courts are reluctant to grant such motions. Your best chance of getting relief requires hiring an attorney who can help you file the petition and gather any other documents need to convince the court that the motion should be granted including a detailed “risk assessment” by an expert.

Attorney for Petitions under Section 790.065(2)(a)4.d.

If you have a court-ordered firearm disability after a Marchman Act or Baker Act proceeding, then contact an experienced criminal defense attorney about the best way to petition for relief.

At Sammis Law Firm in Tampa, FL, we charge between $2,500 to $5,000 to file and litigate the petition in Hillsborough County, FL. In many cases, we recommend obtaining a “risk assessment” so that an expert can present a report confirming the statutory factors to make it more likely that the court will grant the petition.

In Hillsborough County, FL, the Honorable Michael J. Scionti, Circuit Court Judge presides over these petitions filed in the mental health court.

Many of our clients do not find out about the disability until the Florida Department of Agriculture and Consumer Services notifies them that they are not eligible for a concealed weapons or concealed firearms license or that their license is being revoked or suspended. We can help you find the best way to obtain the risk assessment so that you have the best chance of getting the requested relief.

We fight these cases at the courthouse in Hillsborough County, and all of the surrounding counties including Hernando County, Pasco County, Pinellas County, Manatee County, and Polk County, FL.

Call 813-250-0500 to discuss your case.

Petition for Relief from the Firearm Possession and Ownership Disability

Under Section 790.064(3), a person may petition the court that made the adjudication or commitment, or that ordered that the record be submitted to the Florida Department of Law Enforcement (FDLE) pursuant to Section 790.065(2), for relief from the firearm possession and firearm ownership disability.

Under Section 790.064(4), the person seeking relief must follow the procedures set forth in s. 790.065(2) for obtaining relief from the firearm purchase disability in seeking relief from the firearm possession and firearm ownership disability.

Under Section 790.064(5), the person may seek relief from the firearm possession and firearm ownership disability simultaneously with the relief being sought from the firearm purchase disability if such relief is sought, pursuant to the procedure set forth in s. 790.065(2).

The petition for relief from a firearm disability requires an evidentiary hearing. A record of hearing requires a court reporter or other court-approved electronic means. The final order issued by the Court is based on:

• the Petitioner’s reputation in the community;
• the Petitioner’s mental health records;
• the circumstances surrounding firearm disability and any other evidence; and
• evidence that the petitioner is not likely to act in a manner dangerous to public safety.

If the court grants relief for the firearm disability then the order must be forwarded to the FDLE and the record(s) are deleted from the MECOM database. On the other hand, if the court denies relief, then the petitioner may not petition for relief again for one year. The petitioner may, however, seek judicial review from the District Court of Appeals.

Petition to have Firearm Disability Removed

A person with this kind of “firearm disability” may petition the court to have the firearm disability removed as provided in Fla. Stat. § 790.065(2)(a)(4)(d).

The petition must be filed in the same division in which the order was entered and served on the state attorney of the county in which the person was adjudicated or committed.

The petitioner can choose whether the hearing is open or closed. Both the petitioner and the state attorney are permitted to present evidence. The state attorney may object. After the hearing, the court must make written findings.

For the firearm disability to be removed, the court must find that the petitioner will not be likely to act in a manner that is dangerous to public safety and that removing the firearm disability would not be contrary to the public interest.

If the court denies the petition, the person must wait one year from the date of the final order denying the removal of the firearm disability to petition the court again for such relief as provided in Section 790.065(2)(a)4.d., F.S. An order denying relief may be appealed to the District Court of Appeal.

Upon receipt of a proper notice of relief from the firearm prohibition, the Department of Agriculture and Consumer Services must delete the mental health record from the automated database. Fla. Stat. § 790.065(2)(a)(4)(e). Thereafter, the person could obtain a concealed weapons permit.

Sample Petition to Remove a Court Imposed Firearm Disability

IN THE CIRCUIT COURT OF THE _______ JUDICIAL CIRCUIT

IN AND FOR _________________ COUNTY, FLORIDA

IN RE: __________________________

CASE #:   ______________

DIVISION: ____________

PETITION FOR RELIEF FROM FIREARM  DISABILITIES IMPOSED BY THE COURT

1. THIS MATTER is presented to the Court on _______________ (date) by Petitioner, ________________________, on a Petition for Relief from Firearms Disabilities Imposed by the Court on _______________________ pursuant to Section 790.064(3) and/or 790.065.
2. The Petitioner was ordered for:
   • Ordered to Involuntarily Substance Abuse Assessment and Stabilization (s. 397.6818, F.S.) on ___________
   • Ordered to Involuntary Substance Abuse Treatment (s. 397.6957, F.S.) on ____________________________
   • Ordered to Involuntary Inpatient Placement (s. 394.467(6), F.S.) on _________________________________
   • Ordered to Involuntary Outpatient Placement (394.4655, F.S.) on ___________________________________
   • Found by Court to be of Imminent Danger but permitted by physician to transfer to voluntary status in lieu of involuntary placement order above (s. 790.065, F.S.) on ___________________________________________
   • Adjudicated incapacitated (s. 744.331, F.S.) or any similar law of any other state on _____________________
   • Acquittal by reason of insanity (s. 916.15 F.S.) of a person charged with a criminal offense on ____________
   • Judicial finding that a criminal defendant is not competent to stand trial (s. 916.12, F.S.) on _______________
3.  The Petitioner will not be likely to act in a manner that is dangerous to public safety and that granting the relief would not be contrary to the public interest as follows: ________________________________________________ _________________________________________________
4. Based upon these facts, THE FOLLOWING IS REQUESTED:
   • The firearms disability imposed dated _____________, be set aside and are no longer or further in force and effect.
   • That pursuant to Florida Statute Section 790.064 and 790.065, the court shall grant the relief requested in the petition if the court finds, based on the evidence presented with respect to the petitioner’s reputation, the petitioner’s mental health record and, if applicable, criminal history record, the circumstances surrounding the firearm disability, and any other evidence in the record, that the petitioner will not be likely to act in a manner that is dangerous to public safety and that granting the relief would not be contrary to the public interest.
   • That pursuant to Florida Statute Section 790.064 and 790.065, the Florida Department of Law Enforcement shall delete any mental health record of __________________________________ from the automated database of persons who are prohibited from purchasing, owning or possessing a firearm, based on court records.
5.  Under penalties of perjury, I declare that I have read the foregoing Petition for Relief from the Firearm Disabilities Imposed by the Court and that the facts stated in it are true.

Signature of Petitioner: _________________________

Printed Name of Petitioner:  ________________________

Date of Birth: __________________________________

Mailing Address: ________________________________

Race: ______________ Gender: __________________  __________________________________

City                    State                         Zip

Social Security Number: _________________________

Name and Address of Attorney for Petitioner (if any):

_____________________________________________

_____________________________________________

Sample Court Order to Remove Firearm Disability

If you need a sample proposed order for a case involving a petition to remove a firearm disability in Hillsborough County, FL, we have provided an example below.

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

IN AND FOR HILLSBOROUGH COUNTY, STATE OF FLORIDA

MARCHMAN ACT TREATMENT COURT

IN RE: PETITIONER                             CASE NO.:

DIVISION: Z

_______________________________ /

ORDER GRANTING PETITION FOR RELIEF FROM FIREARM DISABILITIES

THIS CAUSE came before the Court on [_____ ], for hearing on the Petition for Relief from Firearm Disabilities, pursuant to Section 790.065, Florida Statutes, filed on [ _____].

Present before the Court was the Petitioner, [_________ ] (hereinafter referred to as the “Petitioner”), and Petitioner’s attorney, Leslie Sammis, Esq., and the Respondent, the State of Florida, represented by Assistant State Attorney, [_________], Esq.

The Court, having reviewed the petition and the evidence, having listened to and considered the arguments, and being otherwise fully advised in the premises, hereby makes the following FINDINGS:

1. On [_____], the Petitioner was ordered by the Court to involuntary substance abuse assessment and stabilization under the Marchman Act, pursuant to Section 397.6818, Florida Statutes.
2. On [_____ ], and [_____ ], the Petitioner was ordered by the Court to involuntary substance abuse treatment under the Marchman Act, pursuant to Section 397.6957, Florida Statutes.
3. On [_____ ], the Petitioner’s Marchman Act case was dismissed by the Court.
4. On [_______ ], Kent McGregor, a state licensed alcohol and drug counselor and nationally certified alcohol and drug counseling supervisor with the international certification and reciprocity consortium, conducted a psychological evaluation of the Petitioner and prepared written recommendations.
5. According to [________ ‘s] findings and recommendations, the Petitioner does not suffer from a mental health disorder, nor does the Petitioner pose a risk of harm to himself or others.
6. According to both the Florida Crime Information Center (FCIC) and the National Crime Information Center (NCIC) databases, the Petitioner does not have any pending criminal cases, nor does the Petitioner have a criminal history involving crimes of violence or crimes involving firearms or weapons.
7. The Office of the State Attorney expressed no concerns regarding the Petitioner and did not object to his Petition for Relief from Firearm Disabilities based upon the psychological evaluation of the Petitioner.
8. The Petitioner will not be likely to act in a manner that is dangerous to public safety and granting the relief requested will not be contrary to the public interest.

Therefore, it is hereby

ORDERED AND ADJUDGED as follows:

• A. The Petition for Relief from Firearm Disabilities is GRANTED.
• B. The Petitioner’s firearm disability shall be set aside and have no further force and effect. The court imposed a suspension of the Petitioner’s right to purchase firearms or apply for or retain a concealed weapons or firearms license, pursuant to Section 790.06, Florida Statutes, shall be lifted.
• C. The Clerk of the Court shall notify the Florida Department of Law Enforcement and the National Instant Criminal Background Check System that the Petitioner’s firearm disability is removed.
• D. The Florida Department of Law Enforcement shall delete the Petitioner’s mental health record from the automated database of persons who are prohibited from purchasing a firearm based on court records of adjudication of a mental defectiveness or commitment to a mental institution, pursuant to Section 790.065(2)(a)(4), Florida Statutes. The statutory language “commitment to a mental institution” is defined to mean: involuntary commitment, commitment for mental defectiveness or mental illness, and commitment for substance abuse. See Section 790.065(2)(a)(4)(b)(I), Florida Statutes.

DONE AND ORDERED in the Thirteenth Judicial Circuit in and for Hillsborough County, Florida on this _____ day of _______________, 20_____.

_____________________________

THE HONORABLE MICHAEL J. SCIONTI

Circuit Court Judge

Thirteenth Judicial Circuit

Conformed Copies Furnished To:

Petitioner’s Attorney, Leslie Sammis, Esq.

Respondent, Assistant State Attorney, _______, Esq.

This article was last updated on Monday, August 23, 2021.