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Orlando Criminal Defense Lawyer > Blog > Criminal > Can a Court Consider Lawful Gun Possession in Criminal Sentencing?

Can a Court Consider Lawful Gun Possession in Criminal Sentencing?


In general, it is legal for an individual to possess and carry a firearm in Florida. Obviously, if someone uses a firearm in connection with a crime, that is illegal and may be taken into account when imposing a sentence. But can a court consider lawful firearms possession in connection with sentencing for an unconnected criminal offense?

Florida Court Orders New Sentencing Due to Trial Judge’s Comments on Photographs

A recent decision from the Florida Fifth District Court of Appeal, Nelson v. State, addressed this question. This case involved alleged drug trafficking. A confidential informant made two purchases of cannabis from the defendant. These transactions occurred at the defendant’s home.

The informant then arranged for a third purchase, again at the defendant’s residence. This was simply a pretext. Armed with a search warrant, law enforcement arrived at the defendant’s residence and arrested the defendant. The defendant admitted he had cannabis in the house. Police recovered approximately 28 pounds of the drug from the residence.

Florida prosecutors charged the defendant with multiple felonies. The defendant pleaded “no contest” to the charges. At sentencing, the defense asked the judge for the mandatory minimum sentence required by Florida law, which was 3 years in prison. The state sought a more substantial sentence of more than 7 years.

At the sentencing hearing, the prosecution introduced two photographs taken at the defendant’s home. The photographs depicted firearms. The prosecution suggested–but did not formally allege–a possible connection between the firearms and an unsolved murder. The judge ultimately imposed the maximum sentence requested by the state. The judge commented, “And what hurts you the most… was the photographs of the guns.” The judge then quickly tried to backtrack, stating he “did not take that into account.”

But the Fifth District said this was a reversible error on the judge’s part. At the time of the defendant’s arrest, he had no criminal record. More to the point, the state failed to present any evidence that the defendant illegally possessed the firearms depicted in the photographs. The Fifth District noted the weapons were not found in proximity to the cannabis recovered from the home. Indeed, the state never charged the defendant with “armed trafficking” in drugs, which it could have. So as far as the Fifth District was concerned, the defendant lawfully had firearms in his own house.

As such, the trial judge was not allowed to consider the weapons connection with the defendant’s drug sentence. And while the judge stated he “did not take” the photos into account, the fact he commented on the photographs suggested the court “may have relied” on them improperly in imposing sentence. The Fifth District therefore held the defendant was entitled to a new sentencing hearing before a different judge.

Contact the Joshi Law Firm Today

Due process of law extends not just to determining a person’s guilt or innocence but also their sentence. If you are facing trial or sentencing on a felony charge and need legal advice from a qualified Orlando criminal defense attorney, contact the Joshi Law Firm, PA, today to schedule a free consultation.



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