No. Under Florida Statute 790.23, a convicted felon cannot own, possess, or have in their care, custody, or control any firearm, ammunition, or electric weapon or device. Violating that law is a second-degree felony carrying up to 15 years in prison, and actual possession of the firearm triggers a 3-year mandatory minimum sentence. The ban stays in place unless firearm authority has been restored through executive clemency. A narrow exception also applies to juvenile records that have been expunged under Florida Statute 943.0515(1)(b).

The Brancato Law Firm practices criminal defense exclusively. We defend clients charged with felon in possession of a firearm across Hillsborough, Pinellas, and Pasco Counties. We do not handle clemency petitions or firearm rights restoration. That process is mainly political and only a little bit legal, and the section below explains what we mean by that.

One development is worth watching in 2026: Florida’s Attorney General has told a state appellate court that the categorical ban on nondangerous felons possessing firearms is unconstitutional, in Morgan v. State, No. 1D2025-0377, now pending in the First District Court of Appeal. That case is still pending. Section 790.23 is still being enforced against people arrested today.

What Florida Statute 790.23 Prohibits

Florida’s felon-in-possession law is broad. It is unlawful for any person to own or have in their care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been:

• Convicted of a felony in any Florida court
• Found to have committed a delinquent act in Florida that would be a felony if committed by an adult (if the person is under 24)
• Convicted of or found to have committed a federal felony (no minimum sentence length required)
• Found guilty of an offense that is a felony in another state, territory, or country and was punishable by more than one year in prison
• Found to have committed a delinquent act in another state, territory, or country that would be a felony punishable by more than one year if committed by an adult (if the person is under 24)

The word “firearm” is defined broadly under Florida Statute 790.001(9) to include any weapon designed to expel a projectile by the action of an explosive, along with frames, receivers, silencers, destructive devices, and machine guns. That same definition contains the exception we discuss below: the term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.

The statute covers ammunition and electric weapons separately. A convicted felon who possesses a single round of ammunition is violating the same law as one who possesses a loaded handgun.

Florida’s broader gun laws also restrict where and how firearms can be carried, even for people who are legally allowed to possess them. Our overview of gun crime laws in Florida covers those restrictions, and we have written separately about carrying at a Buccaneers game.

Penalties for Felon in Possession of a Firearm in Florida

A standard felon-in-possession conviction is a second-degree felony. Depending on the circumstances, the penalties escalate significantly.

Under Florida’s 10-20-Life law, Fla. Stat. § 775.087, anyone who actually possessed a firearm during the commission of the offense faces a 3-year mandatory minimum. A prior conviction for one of the felonies listed in Fla. Stat. § 775.084(1)(b)1 pushes that mandatory minimum to 10 years, but only if the defendant actually possessed a firearm or destructive device during that earlier felony as well. If the charge involves gang activity under Section 874.04, Section 790.23(4) makes the offense a first-degree felony punishable by a term of years not exceeding life. And if the defendant meets the violent career criminal criteria, the charge is not Section 790.23 at all. It is Section 790.235, a first-degree felony carrying a 15-year mandatory minimum with no discretionary early release.

Which type of possession the state can prove controls whether a mandatory minimum applies to your case at all.

Actual Possession vs. Constructive Possession

This distinction carries real sentencing consequences, and it is one of the most contested issues in felon-in-possession cases.

The sentencing difference is the reason prosecutors and defense attorneys fight over this. Only actual possession triggers the 3-year mandatory minimum under Section 775.087, and Section 775.087(4) defines actual possession to require that the firearm was within immediate physical reach with ready access and that the defendant intended to use it during the commission of the offense. That intent element is frequently the defense’s strongest argument in reach cases. When the state can prove only constructive possession, the judge keeps discretion over the sentence.

Proximity alone does not establish constructive possession. If you were a passenger in someone else’s vehicle, or if other people had equal access to the place the gun was found, the state has to prove more than your presence near it. Florida’s standard jury instructions require proof that the defendant knew of the firearm and had the ability to control it.

In our experience defending these cases in Hillsborough County, the actual versus constructive question is frequently the central issue at trial. How the firearm was discovered, where it was located, who else had access, and what the defendant said or did not say to officers all feed into that analysis.

Federal Law Bans Felons From Having Guns Too

Even if Florida changes its state law, federal law independently prohibits convicted felons from possessing firearms. Under 18 U.S.C. § 922(g)(1), any person convicted of a crime punishable by more than one year of imprisonment is prohibited from possessing any firearm or ammunition that has been shipped or transported in interstate commerce.

A federal felon-in-possession conviction carries up to 15 years in federal prison. Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), three or more prior convictions for violent felonies or serious drug offenses raise the mandatory minimum to 15 years.

Two points about federal law matter here:

• How complete your state restoration is determines whether the federal ban survives it. Florida can restore your state-level right to possess firearms through executive clemency. Under 18 U.S.C. § 921(a)(20), a conviction for which civil rights have been restored is not a conviction for federal purposes unless the restoration expressly provides that the person may not possess firearms. Florida’s plain Restoration of Civil Rights does expressly withhold firearm authority, so the federal ban survives it. A full restoration, meaning civil rights together with Specific Authority to Own, Possess, or Use Firearms, removes the federal disability arising from that Florida conviction. None of this helps with a federal or out-of-state conviction, which only the jurisdiction that entered it can relieve.
  
• The DOJ reopened federal relief in August 2026. On August 17, 2026, the Justice Department finalized its rule implementing 18 U.S.C. § 925(c) and launched the Federal Firearm Rights Restoration program, administered by the Office of the Pardon Attorney rather than ATF. Applications open to invited candidates on September 25, 2026 and to the public on November 4, 2026, capped at the first 5,000 filings, with a further 500 slots and a $30 application fee opening in early 2027. Relief is individualized and never guaranteed. The rule builds in presumptions against relief: a permanent presumptive bar for violent felonies, ten years for drug trafficking and certain firearms offenses, and five years for most other felonies, measured from completion of every component of the sentence, including restitution. Apart from a presidential pardon, this is the only route for a federal conviction.
  

Anyone whose state firearm rights have been restored should understand that picking up a firearm can still result in federal prosecution.

Exceptions to Florida’s Felon Gun Ban

Florida’s felon-in-possession law has several exceptions. Some are statutory. Others depend on how the underlying conviction was handled.

• Executive clemency with firearm authority: A grant of Specific Authority to Own, Possess, or Use Firearms (Rules 4.I.F and 5.D of the Rules of Executive Clemency), which is a separate form of clemency from Restoration of Civil Rights, from the Florida Executive Clemency Board lifts the state ban.
  
• Expunged juvenile record: If your juvenile criminal history record has been expunged under Florida Statute 943.0515(1)(b), Section 790.23(2)(b) exempts you by name. This is a narrow, juvenile-only exception. An adult felony conviction cannot be sealed or expunged in Florida at all. Both Section 943.0585 and Section 943.059 require that adjudication was withheld, which by definition means there was never a conviction.
  
• Withheld adjudication (adults): A felony charge that resulted in a withhold of adjudication was never a formal conviction under Florida law. Section 790.23 applies to people who have been convicted, so a withheld adjudication for an adult does not trigger the ban. The Florida Supreme Court settled this in Clarke v. United States, 184 So. 3d 1107 (Fla. 2016), where a man charged federally after a Florida guilty plea with adjudication withheld asked whether that plea counted as a conviction. The court held it did not, and the Eleventh Circuit then vacated his federal conviction. Two limits matter. The exception applies to Florida convictions under subsection (1)(a). Subsections (1)(c) and (1)(e) reach a person “found to have committed” a federal felony or “found guilty” of an out-of-state felony, which is broader language a withhold-style disposition may not escape. And a juvenile finding counts even where adjudication of delinquency was withheld.
  
• An important limit on the withhold exception: Falling outside Section 790.23 does not make you an ordinary buyer. FDLE must deny a dealer purchase for anyone who has had adjudication withheld on any felony unless three years have elapsed since probation or any other court-ordered conditions were fulfilled (Section 790.065(2)(a)3), and the same three-year rule disqualifies you from a concealed weapon license (Section 790.06(2)(k)). While you are still on probation, firearm possession is almost always a condition of supervision regardless of the withhold.
  
• Antique firearms: Florida law excludes antique firearms from the definition of “firearm.” An antique firearm is one manufactured in or before 1918, or a replica of one, whether the replica itself was made before or after 1918, or a firearm using fixed ammunition manufactured in or before 1918 that is no longer manufactured in the United States and not readily available commercially. A genuine antique falls outside the ban unless it is used in the commission of a crime. Two practical notes: antique status is an affirmative defense you have to raise rather than something the State must disprove up front, Williams v. State, 468 So. 2d 447 (Fla. 1st DCA 1985), and the carve-out lives in the definition of “firearm” only, so the separate bans on ammunition and electric weapons still apply.
  

Each exception comes with conditions. If you believe an exception covers your situation, talk to an attorney before you act on that belief. The cost of being wrong is a second-degree felony charge.

How to Restore Firearm Rights in Florida

Before the mechanics, the thing nobody tells you: this is a political process, not a legal one. The Clemency Board is the Governor and the three members of the Cabinet, and clemency is an executive act. There is no legal standard to satisfy, no burden of proof, no right to relief, and no appeal from a denial. Rule 4 of the Rules of Executive Clemency states that the Governor “has the unfettered discretion to deny clemency at any time, for any reason.” A lawyer can make sure an application is complete, accurate and eligible. Nothing a lawyer files controls the outcome.

That is also the reason our firm does not take these matters, and we would rather say it plainly than leave it unexplained. The legal part, meaning confirming eligibility, assembling a complete and accurate application, and making sure the financial conditions are satisfied, is real, but it is the small part. The rest is executive discretion, and no filing controls it. We are not willing to charge a criminal defense fee for work whose outcome we cannot influence. If that balance changes, whether because the Legislature creates a judicial path to restoration or because the courts adopt the as-applied argument the Attorney General is now making in Morgan and firearm rights become something a lawyer can litigate rather than petition for, we will look at it again. Until then, if you are seeking clemency, firearm authority, or federal relief under Section 925(c), the Office of Executive Clemency at (850) 488-2952 is where the process begins, and attorneys who handle clemency full time are better positioned than we are. We set the process out here because people charged under Section 790.23 ask about it constantly and the accurate answer is hard to find.

The formal path runs through the executive clemency process, with investigations conducted by the Florida Commission on Offender Review.

The current requirements for firearm authority specifically:

• You must wait at least 8 years after completing all terms of your sentence, including prison, probation, parole, fines, restitution, and any other court-ordered conditions

• The 8 years runs from the date all sentences and all conditions of supervision on your most recent felony expired or were completed. Time served is what starts the clock, not what runs it
• A new felony conviction after the waiting period begins resets the clock, because the clock always runs from your most recent felony
• Persons convicted in a federal, military, or out-of-state court are not eligible to apply for Florida firearm authority at all
• You must have no outstanding detainers, no pecuniary penalties or liabilities totaling more than $1,000 from any criminal conviction or traffic infraction, and no outstanding victim restitution or Chapter 960 obligations
• The application goes to the Clemency Board, which evaluates the petition and schedules a hearing
• Approval requires the Governor plus at least two Cabinet members, and the Governor’s vote is always required. The rules give the Governor unfettered discretion to deny clemency at any time, for any reason

Florida offers two different forms of restoration, and people frequently confuse them:

Firearm authority is the hardest form of clemency Florida grants. There is no administrative track for it. Rules 9 and 10 cover Restoration of Civil Rights only and both expressly exclude firearms, so every firearm application is investigated by the Florida Commission on Offender Review, including a personal interview, and then heard by the Clemency Board, which meets four times a year. Attorneys who file these routinely describe waits of three to twelve years from application to decision. Eight years of eligibility is where the process begins, not where it ends.

One point that causes regular confusion: Amendment 4 to the Florida Constitution, passed in 2018, restored voting rights for most people with felony convictions upon completion of all terms of their sentence, excluding those convicted of murder or a felony sexual offense. Restoration is not automatic in practice. Florida Statute 98.0751 defines “completion of all terms of sentence” to include full payment of restitution and of every fine and fee ordered as part of the sentence, and the Eleventh Circuit upheld that requirement sitting en banc in Jones v. Governor of Florida, 975 F.3d 1016 (11th Cir. 2020). Outstanding court debt keeps a person off the voter rolls. Amendment 4 also restores voting only. Jury service and the right to hold office still require clemency. Amendment 4 did not restore firearm rights. Voting and firearm rights follow separate paths in Florida.

Is Florida’s Felon Gun Ban Changing? Morgan v. State

The most significant development in this area is currently before Florida’s First District Court of Appeal, in Morgan v. State, No. 1D2025-0377.

In September 2022, Christopher Morgan, who had a single nonviolent 2007 Pennsylvania felony conviction for carrying a firearm without a license, was stopped by a Tallahassee police officer during a routine traffic stop. Morgan volunteered that he had an unloaded pistol in his center console and disclosed his prior felony conviction. He was arrested and charged under Section 790.23.

Morgan pleaded no contest but reserved his right to appeal, arguing that Florida’s categorical ban on felons possessing firearms violates the Second Amendment under the U.S. Supreme Court’s framework in New York State Rifle & Pistol Association v. Bruen (2022).

Florida Attorney General James Uthmeier initially defended the law. A September 2025 brief from his office argued that the statute was constitutional and that Morgan, as a convicted felon, was not a law-abiding citizen.

Then in February 2026, Uthmeier reversed course. In a brief confessing error filed on February 13, 2026, the AG argued that the Second Amendment lets the government disarm felons whose convictions show they are dangerous, but does not support a blanket ban on every felon regardless of whether the offense involved violence. A supplemental brief filed on March 18, 2026 applied the Bruen test to argue that disarming nondangerous felons is inconsistent with the nation’s historical tradition of firearm regulation. No Florida Attorney General had taken that position before. The Florida Prosecuting Attorneys Association sought leave on March 27, 2026 to file an amicus brief opposing that position, arguing that felon disarmament is consistent with the nation’s historical tradition. As of September 2026 the First DCA has not ruled.

What this means for you right now: nothing has changed. The First DCA has not ruled. Florida’s Prosecuting Attorneys Association has opposed the AG’s position. Section 790.23 remains fully enforceable, and people are still being arrested and charged under it every week. If you are a convicted felon holding a firearm today because you expect the law to change, you are risking a second-degree felony and serious prison time on a legal theory no court has adopted yet.

There is one distinction worth understanding, because it explains why this is still an open question. Every Florida appellate decision upholding Section 790.23 so far, most recently Villarreal v. State, No. 6D2024-2157 (Fla. 6th DCA June 5, 2026), and before that Gibbs v. State (Fla. 3d DCA 2025) and Edenfield v. State, 379 So. 3d 5 (Fla. 1st DCA 2023), rejected a facial challenge, meaning an argument that the statute is unconstitutional in every application. The Attorney General’s position in Morgan is an as-applied challenge: that the statute is unconstitutional as applied to this particular nondangerous defendant. Villarreal expressly declined to decide that question. So while no Florida court has adopted the as-applied argument, none has rejected it either. One practical warning from Villarreal: the defendant’s as-applied claim failed because it was not preserved in the trial court. If this argument matters to your case, it has to be raised early and correctly, at the trial level, or it is gone on appeal.

Common Defenses in Felon-in-Possession Cases

The facts of the case determine the defense. These are the approaches that come up most often:

• Challenging the search. Many felon-in-possession charges begin with a traffic stop or a search of a home or vehicle. If officers conducted an unlawful search or lacked probable cause for the stop, the firearm can be excluded through a motion to suppress. As a former police academy instructor, Rocky Brancato trained officers on the procedures they are supposed to follow during stops and searches. That training informs how our attorneys examine what actually happened before the gun was found.
  
• Disputing possession. In constructive possession cases, the state has to prove you knew the firearm was there and could control it. When the gun was in a shared space, such as a vehicle with several occupants or a home with several residents, that burden gets harder to carry.
  
• Challenging the underlying conviction. If the prior felony that triggers the ban was itself defective, reversed on appeal, or resolved with a withhold of adjudication, the prosecution’s case can collapse at its foundation. Under Clarke v. United States, a Florida withhold is not a conviction for purposes of Section 790.23 at all.
  
• Arguing a statutory exception. A weapon that qualifies as an antique under Florida’s definitions falls outside the reach of 790.23. After State v. Weeks, 202 So. 3d 1 (Fla. 2016), that category is broader than most people assume. See the muzzleloader question below.
  

Rocky Brancato served as Chief Operations Officer of the Hillsborough County Public Defender’s Office, where he oversaw a staff of over 100 attorneys. That system-level view of how charging decisions get made in gun cases shapes how the firm evaluates them from the first phone call.

In felon-in-possession cases charged alongside a drug offense, one of the first questions is whether the firearm allegation actually fits the statute the State charged under. Reading the statute against the facts, rather than accepting the State’s characterization of them, is often where the case turns.

Our defense team has also worked with forensic firearms experts to challenge weapon identification and the reliability of the state’s physical evidence.

Frequently Asked Questions

Can a nonviolent felon own a gun in Florida?

Not under current law. Florida Statute 790.23 does not distinguish between violent and nonviolent felonies. If you have any felony conviction, the ban applies to you. The Florida Attorney General has argued in the Morgan v. State appeal that this categorical approach is unconstitutional for nondangerous felons, but no court has yet decided that as-applied question. Florida’s appellate courts have so far rejected only facial challenges, most recently in Villarreal v. State (Fla. 6th DCA June 5, 2026). Until a court rules or the legislature acts, all felons are prohibited from possessing firearms in Florida.

Can a felon have a gun in their home in Florida?

No. The statute prohibits a convicted felon from having a firearm in their care, custody, possession, or control. A gun stored in your home is under your control. That is constructive possession, and it violates Section 790.23. Constructive possession carries the same 15-year maximum as actual possession, though it does not trigger the 3-year mandatory minimum.

Can a felon’s spouse own a gun in Florida?

Florida law does not prohibit a felon’s spouse from owning a firearm. The spouse has an independent right to possess firearms if they are not otherwise disqualified. The risk comes from access. If prosecutors can establish that the felon knew the gun was in the home and could exercise dominion and control over it, a constructive possession charge is possible. Storing the firearm in a locked safe the felon cannot open reduces that risk, but the specifics of the living arrangement matter enough to be worth a conversation with a defense attorney.

What is constructive possession of a firearm?

Constructive possession means a firearm is not on your person but sits in a place you control, you know it is there, and you have the ability to exercise dominion over it. The state must prove both knowledge and control. Being in the same room or the same vehicle as a firearm is not enough by itself.

Can a felon own a muzzleloader in Florida?

Often, yes. Florida’s antique firearm exception covers any firearm manufactured in or before 1918, any replica of one regardless of when the replica itself was made, and any firearm using fixed ammunition manufactured in or before 1918 that is no longer commercially available. In State v. Weeks, 202 So. 3d 1 (Fla. 2016), a convicted felon was prosecuted for possessing a modern muzzleloading rifle fitted with a scope. The Florida Supreme Court held that what makes a firearm a “replica” is its ignition or firing system, meaning matchlock, flintlock, percussion cap or similar, and that modern accessories like a scope do not remove it from the exception. Most percussion-ignition muzzleloaders therefore fall outside the definition of “firearm” in Section 790.001(6). Two cautions: antique status is an affirmative defense you have to raise, and the exception disappears if the weapon is used in the commission of a crime. Check with an attorney before purchasing or possessing one.

How long does the clemency process take in Florida?

The minimum wait before you can apply is 8 years after completing all terms of your sentence. After you file, the wait for a hearing can run considerably longer because of the backlog at the Executive Clemency Board. Attorneys who file these applications routinely describe three to twelve years from filing to decision for firearm authority, because every firearm application requires an investigation by the Florida Commission on Offender Review and a hearing before the Clemency Board, which meets only four times a year. There is no guaranteed timeline, and approval is not guaranteed even after a hearing. Clemency is an executive process rather than a court process, and our firm does not handle these petitions. The Office of Executive Clemency at (850) 488-2952 is the starting point.

Talk to a Tampa Gun Crimes Defense Attorney

If you are facing a felon-in-possession charge in Tampa Bay, we can evaluate your situation and tell you what the realistic paths forward look like. If you are looking for help restoring firearm rights, we are not the right firm for that. That process is mainly political rather than legal, and the clemency section above explains why and where it actually starts.

The Brancato Law Firm defends clients charged with gun crimes from our Tampa office, serving Hillsborough, Pinellas, and Pasco Counties. We track the Second Amendment developments that affect our clients, including the Florida open carry ruling.

Call (813) 727-7159 for a free consultation, or contact us online to discuss your case. A felon-in-possession arrest moves quickly toward a filing decision, and the window to influence that decision is measured in weeks. The attorneys of The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, can be reached at (813) 727-7159.

The Brancato Law Firm, P.A.

620 E. Twiggs Street, Suite 205, Tampa, FL 33602

(813) 727-7159

Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

Florida created the RPO statute in 2018 under the Marjory Stoneman Douglas High School Public Safety Act. Rocky Brancato was among the first attorneys in the state to take these cases on, starting at the program’s inception while he was second-in-command at the Hillsborough County Public Defender’s Office, and he was featured in media coverage of the law the same year it passed. As a former police academy instructor who trained officers on criminal procedure and courtroom testimony, Rocky knows how law enforcement builds the petitions that lead to RPO hearings. That knowledge shapes how our Tampa gun crimes lawyers prepare every contested case.

This guide covers what an RPO is, how the process moves, what fighting one looks like at the hearing, how a motion to vacate works, and the consequences that follow the order long after the firearms are gone.

What to Do First After Being Served

The hours after service matter more than most respondents realize. Five things should happen immediately.

• Surrender all firearms, ammunition, and any Florida concealed weapon or firearm license to the serving officer, and keep the receipt you are given.
• Do not transfer, hide, or reacquire firearms while the order is active. Possessing a firearm under a valid RPO is a separate third-degree felony.
• Write down what actually happened, who was present, and who contacted law enforcement, while the details are fresh.
• Gather anything that contradicts the petition: text messages, emails, call logs, photos, medical records, and the names of people who witnessed the incident.
• Call a defense attorney the same day you are served. Subpoenas, records requests, and witness interviews take time the 14-day clock does not give you.

What Is a Risk Protection Order in Florida?

A risk protection order is a civil court proceeding under Florida Statute § 790.401 that lets a circuit court temporarily prohibit a person from possessing, purchasing, or receiving firearms or ammunition. The court issues the order when it finds that the person poses a significant danger of causing personal injury to themselves or others through firearm access.

Three features of the process surprise almost everyone who goes through it.

Only law enforcement can file. A spouse, family member, doctor, or neighbor cannot petition the court directly. Any of them can report concerns to law enforcement, and the investigating agency can file the petition. The person who prompted the investigation often becomes a central witness at the hearing.

An RPO is not a criminal charge. This is a civil, preventive proceeding. You will not be arrested or prosecuted because an RPO was filed against you. Violating an active RPO by possessing or acquiring firearms or ammunition is a separate third-degree felony that does carry criminal exposure. That said, many RPO petitions grow out of the same incident that produced an arrest, and the two cases run on parallel tracks. When that happens, the civil label is misleading comfort, because anything you say at the RPO hearing can surface in the criminal case. The FAQ below covers how to handle an RPO hearing with a criminal charge pending.

The rules are different from criminal court. Many of the protections people associate with criminal cases work differently here, and the differences drive strategy.

Respondents who walk in expecting criminal-court procedure lose ground fast. Knowing which rules apply is the first step in building a defense.

How the RPO Process Works in Florida

The Temporary Ex Parte Order

For most people, the first sign of an RPO is a law enforcement officer at the door with a temporary order in hand. The court can issue that temporary ex parte order without notifying you and without giving you a chance to appear. For temporary relief, the petitioning agency has to show reasonable cause, a lower standard than the clear and convincing evidence required at the final hearing, and the court must take up the request the day it is filed or the next business day.

Once the temporary order is served, you must immediately surrender all firearms and ammunition in your custody, control, or possession, along with any Florida concealed weapon or firearm license. The serving officer issues a receipt for the surrendered property. If firearms are not surrendered, law enforcement can seek a search warrant.

Do not try to move, hide, or hold back firearms. The place to contest the legal basis for the order is in court. Deliberate possession while a valid RPO is in effect is a third-degree felony.

The 14-Day Hearing

After the petition is filed, the court must schedule a final hearing no later than 14 days after the date of its scheduling order. That hearing is your opportunity to contest the order.

At the final hearing, the petitioning agency has to prove by clear and convincing evidence that you pose a significant danger of causing personal injury to yourself or others through firearm or ammunition access, possession, or acquisition. If the agency cannot carry that burden, the court should deny the petition.

If the court does enter a final RPO, it can last up to 12 months. Twelve months is the ceiling per order, not an automatic term. The agency can also seek an extension before the order expires, and each extension can add up to another 12 months if the agency again proves the danger by clear and convincing evidence.

What Judges Consider at an RPO Hearing

The statute lists 15 non-exclusive factors a court may weigh, including:

• Recent acts or threats of violence toward self or others
• Threats of violence within the previous 12 months
• Serious or recurring mental health issues
• Violations of existing protective orders
• History of domestic violence
• Use of or threats made with weapons
• Reckless display of firearms
• Recurring use of physical force or stalking behavior
• Violence-related arrests or convictions
• Corroborated substance or alcohol abuse
• Recent firearm acquisition
• Relevant information from family or household members
• Sworn witness testimony

The court can also weigh any other evidence it finds relevant.

How to Fight a Risk Protection Order at the Hearing

The final hearing is the main event. Here is what fighting an RPO actually involves.

Challenge Whether the Evidence Meets the Significant Danger Standard

The petitioning agency cannot lean on the reasonable cause showing that supported the temporary order. At the final hearing it has to establish clear and convincing evidence of the specific statutory danger tied to firearm access.

In Davis v. Gilchrist County, Florida’s First District Court of Appeal drew the line between blowing off steam and making a genuine threat, and acknowledged that judges have to separate hyperbole from an actual plan. The order in that case was upheld because the respondent had allegedly named a specific intended victim, method, and firearm, repeated the statements to other officers, and behaved erratically at the time.

Context, specificity, credibility, corroboration, and the apparent ability to carry out a threat all move the needle. For every allegation in the petition, the defense works through the same questions. What precisely happened? Who observed it firsthand? When? Is the account corroborated by independent evidence? What connection to firearms exists? Does any document contradict the witness? Was the statement conditional, sarcastic, angry but empty, or an actual plan? What context did the petition leave out?

Cross-Examine the Petitioning Officer and Witnesses

Credibility decides a lot of these hearings. The Davis court put weight on the trial judge’s role in assessing witness credibility and demeanor, and the judge there was free to credit the law enforcement witnesses over the respondent’s expert.

That makes inconsistent reports, prior statements, body-camera footage, dispatch and 911 recordings, text messages, emails, and eyewitness testimony some of the most useful material in a contested hearing. When an officer’s sworn testimony conflicts with what the body camera recorded, or the 911 call tells a different story than the petition, those gaps are the case.

Witnesses at an RPO hearing testify under oath, and Florida treats that seriously. Under § 790.401(11)(a), a witness who makes a statement under oath at an RPO hearing that they do not believe to be true, on a material matter, commits a third-degree felony punishable by up to five years in prison and a $5,000 fine. The provision does not defeat a petition on its own. It gives the defense a framework for exposing material contradictions, and it means a witness who exaggerated has real exposure.

Get the Underlying Evidence Fast

Because the hearing arrives so quickly, the investigation has to start the day you are served. The useful material goes well beyond the four corners of the petition:

• Incident reports and police reports
• Body-camera footage
• 911 and dispatch recordings
• Text messages, social media posts, and emails
• Witness statements
• Medical or mental health evaluation records, where lawfully obtainable
• Prior injunction documents
• Evidence underlying any arrest or incident cited in the petition

An RPO is not a criminal prosecution, so the discovery rights available under Florida Rule of Criminal Procedure 3.220 do not apply the same way. Your attorney has to chase the records independently and move before the hearing date closes the window.

Request a Continuance When You Need One

When 14 days is not enough to obtain records, interview witnesses, or retain an expert, your attorney can ask the court for more time. Davis shows what happens when that request is not made cleanly. The respondent argued on appeal that limits on the hearing denied him due process, and the appellate court rejected the argument in part because the record showed no clear, unequivocal request for additional time.

Any request for more time has to be stated plainly and preserved in the record. No judge is required to grant every continuance, but a specific request that explains what still needs to be gathered protects both the hearing and any appeal that follows.

Present Evidence of Stability, Tied to the Statutory Issue

Treatment, counseling, evaluations, and character evidence help, and none of it wins on its own. The respondent in Davis had been evaluated and released after the underlying incident, and his neuropsychologist offered a favorable opinion. The appellate court still upheld the order, because mental illness is one permissible factor rather than an element the petitioner has to prove. The trial court was free to discount the expert in favor of other testimony.

A neighbor who says you are a good person does almost nothing. A witness with firsthand knowledge who can contradict a specific claimed threat, explain a disputed conversation, or show that conditions have materially changed speaks directly to a statutory factor. Documented sobriety, completed evaluations, and voluntary counseling carry weight when they connect to the reasons the petition was filed in the first place.

Filing a Motion to Vacate an RPO in Florida

If a final RPO has already been entered against you, § 790.401(6) gives you a separate path: a written request for a hearing to vacate the order.

You get one request per order. After the court enters a final RPO, you may submit one written request for a vacatur hearing. If the order is later extended, a new opportunity opens after each extension. One petition per order is accurate. One petition ever is not.

The burden flips to you. At the original hearing, law enforcement had to prove you pose a significant danger. At a vacatur hearing, you have to prove by clear and convincing evidence that you no longer do.

The timeline changes. The court must set the vacatur hearing no sooner than 14 days and no later than 30 days after your request is served on the petitioner.

Because you only get one request per order, filing before you have built the record can burn the opportunity. What proves the point depends on why the order was entered. Passage of time without new threats or violent conduct, completed evaluations or voluntary counseling where substance abuse or mental health drove the petition, documented sobriety, evidence correcting misinformation from the first hearing, and firsthand witnesses who can speak to the specific findings all help. The statute sets the burden and the question. It does not prescribe a checklist, and what satisfies one judge in one case may not satisfy another.

Collateral Consequences of an RPO in Florida

The order reaches further than the firearms taken on day one.

FCIC and NCIC database entry. The order goes into the Florida Crime Information Center (FCIC) and the federal National Crime Information Center (NCIC). It stays in those systems for the life of the order and comes out when the order ends or is vacated. The order itself bars you from purchasing or receiving firearms or ammunition while it is in effect.

Concealed weapon license suspension. Within three business days after the order is issued, the court sends your identifying information to the Florida Department of Agriculture and Consumer Services, which immediately suspends any concealed weapon or firearm license. Reinstatement comes only after the order terminates and the department confirms your eligibility.

Public court records. An RPO is a court case, and the case does not vanish because no one was arrested or because the order expired. Florida’s criminal-history sealing and expunction process is not the ordinary mechanism for clearing an RPO case. Specific confidential information may still be protected under court-record rules, but the case itself generally stays accessible through the clerk of court’s public records.

Employment and professional licensing. The consequences are sharper when your work requires carrying or possessing a firearm. A public court case can also create occupation-specific problems depending on your employer, your licensing board, or the background checks your field requires.

Third-party firearms. When seized firearms belong to someone else in the household, the lawful owner can seek their return by proving ownership and satisfying the court that the respondent will not have access. The statute also allows the respondent to transfer surrendered firearms to an eligible third party under specified safeguards. For households with a shared safe, inherited firearms, or a collection with real value, this matters.

RPOs, Baker Act Proceedings, and Domestic Violence Injunctions

An RPO is a separate proceeding from both a Baker Act evaluation and a domestic violence injunction. One does not resolve or preclude the other. Being evaluated and released under a Baker Act hold does not answer the firearm-danger question. In Davis, the respondent had been evaluated and released, and the appellate court still affirmed the RPO because the separate statutory standard was met.

Domestic violence situations generate a large share of RPO petitions, and the statute requires the petition to identify any existing protective orders. History of domestic violence, prior protective order violations, and violence-related arrests are all evidence a judge may weigh. If you are facing both a domestic violence injunction and an RPO, each one needs its own defense strategy, and a mistake in one proceeding follows you into the other.

Do You Need an Attorney for an RPO Hearing?

Florida law does not currently give an RPO respondent a statutory right to a public defender or other court-appointed lawyer. You can retain your own attorney, and the court is not required to appoint one. A 2026 bill (HB 1455) that would have created that right cleared a House subcommittee and died before becoming law.

That leaves the decision to hire counsel entirely in your hands, on a compressed timeline, against an agency that has already built its file. The evidentiary burden, the rules on what the judge can consider, and the single-request structure of the vacatur petition all reward preparation. An attorney who has tried contested RPO hearings can pull the underlying evidence, prepare cross-examination, decide which witnesses actually help, preserve the record for appeal, and advise on whether and when to file the motion to vacate.

The numbers explain the urgency. State records reported by WPTV showed judges had granted nearly 1,000 risk protection orders in Hillsborough County alone between 2018 and March 2022. A University of Michigan study of Florida RPO cases filed between March 2018 and June 2020 found that 89% of final RPO petitions in its sample ended in final orders. Respondents who treat the hearing as a formality lose their firearms and their firearm rights for a year or more.

Common Questions About Florida Risk Protection Orders

How long does a risk protection order last in Florida?

A final RPO can last up to 12 months. The court sets the length it finds appropriate up to that ceiling, and the petitioning agency can request an extension of up to another 12 months before the order expires.

Can a risk protection order be expunged in Florida?

Florida’s criminal-history sealing and expunction process is not the ordinary route for an RPO, because an RPO is a civil case rather than an arrest record. The court case generally remains accessible through the clerk of court even after the order expires.

Can you get your guns back after an RPO expires in Florida?

Yes, though the firearms are not returned automatically. Once the order terminates or is vacated, the respondent has to establish eligibility and follow the return process with the agency holding the property. Our firm assists clients with recovering firearms after an RPO ends.

Does a Baker Act automatically lead to a risk protection order?

No. A Baker Act evaluation and an RPO are separate proceedings with separate standards. A Baker Act hold can prompt law enforcement to investigate and petition for an RPO, and being evaluated and released does not resolve the RPO question.

What if I have a related criminal charge at the time of the RPO hearing?

This is one of the most dangerous positions a respondent can be in, and it is common. Many RPO petitions arise from the same incident that led to an arrest, so the civil case and the criminal prosecution move at the same time, often with the same officers and the same witnesses.

The RPO hearing does not pause because a criminal case is pending. You testify under oath, and the hearing is recorded. Nothing prevents the State Attorney’s Office from obtaining that transcript and using your statements against you in the criminal case, either as admissions or to impeach you if your trial testimony differs. An unprepared respondent can hand the prosecution sworn discovery it could never have compelled on its own.

That is why these hearings belong with a Tampa criminal defense attorney rather than being treated as a standalone civil matter. An attorney who sees only the RPO can win the hearing and damage the criminal case doing it. An attorney handling both knows what the prosecution has to prove, which questions are safe to answer, and when your testimony helps or hurts the larger picture. Handled correctly, the hearing can become an advantage, a chance to question the petitioning officer under oath months before the criminal case reaches deposition or trial.

The right approach depends on the strength of both cases. That call should be made with one attorney who can see the whole board before you say a word in either courtroom.

Talk to a Defense Attorney Before Your Hearing Date

Fourteen days sounds like time. It is not. Waiting three or four days to call an attorney can consume a quarter of the window available for records requests, subpoenas, witness interviews, and hearing preparation, and the agency filed its petition with a head start.

We handle contested risk protection order hearings throughout Tampa Bay, including Hillsborough, Pinellas, and Pasco Counties. Call The Brancato Law Firm at (813) 727-7159 or contact us online for a confidential consultation.

I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I have served as a police academy legal instructor teaching officers the constitutional limits of search, seizure, and arrest, and I served as Chief Operating Officer of the Hillsborough County Public Defender’s Office. Today our attorneys defend gun and drug charges across Tampa Bay, and this question — marijuana and guns — now sits at the center of one of the fastest-moving areas in criminal law.

What Does Federal Law Say About Marijuana Users and Guns?

Federal law makes it a crime for any person “who is an unlawful user of or addicted to any controlled substance” to possess a firearm or ammunition. That ban lives in 18 U.S.C. § 922(g)(3), and because marijuana remains a controlled substance under federal law, it has always applied to marijuana users — including Florida’s hundreds of thousands of registered medical marijuana patients. A state card has never been a defense to the federal statute, because Florida’s medical marijuana program does not change what federal law says.

The federal ban shows up in a second place that trips up ordinary gun buyers: ATF Form 4473, the questionnaire every purchaser completes at a licensed dealer. The form asks directly whether you are an unlawful user of marijuana or any other controlled substance, and it warns that marijuana remains federally unlawful regardless of state medical programs. Answering falsely is a separate federal felony. Our attorneys have seen careful, law-abiding people put themselves in federal jeopardy with one checkbox — which is why the Supreme Court’s 2026 decision matters so much, and why it must be read carefully rather than treated as a green light.

What Did the Supreme Court Decide in United States v. Hemani?

In United States v. Hemani, No. 24-1234 (U.S. June 18, 2026), the U.S. Supreme Court held that the government’s prosecution of a regular marijuana user under § 922(g)(3) violated the Second Amendment — the first time the Court has struck down the application of a federal gun ban to drug users. Ali Hemani was prosecuted for having a gun in his home while being a regular marijuana user; the government’s theory was that regular use of a controlled substance, by itself, was enough to disarm him. It did not claim he was addicted, that he was high when found with the gun, or that he posed any particular danger.

Justice Gorsuch’s majority opinion, affirming the Fifth Circuit 7-2, rejected that theory under the historical-tradition test. The government leaned on founding-era “habitual drunkard” laws, but the Court found those laws targeted people whose drinking left them “practically incapacitated and incapable of managing their affairs” — not everyone who drank regularly. The Court also stressed how the modern statute operates: it “automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user . . . all without any pre-deprivation process,” while the historical laws required some proceeding — a conviction, a guardianship, a hearing — before anyone lost liberty. And the Court pointed out that the government’s own conduct undercuts the claim that all marijuana users are categorically dangerous: federal prosecutors have been directed to curtail enforcement against marijuana users, most states have legalized some use, and the government itself recently moved certain marijuana products down the federal schedules.

For Florida gun owners who hold medical marijuana cards, the practical takeaway is this: after Hemani, a federal prosecution built on nothing more than the fact that you regularly use marijuana is unconstitutional. That is a real shield. But it is a shield with defined edges, described next.

What Did Hemani Leave Undecided?

Hemani was an as-applied ruling, not a repeal — § 922(g)(3) is still on the books, and the Court expressly reserved several theories the government may still pursue. Anyone mixing marijuana and firearms in Florida should understand exactly where the line now sits.

That last row deserves emphasis. Nothing in Hemani changed the purchase paperwork. Until ATF revises Form 4473, a medical marijuana patient who answers “no” to the unlawful-user question is still committing a federal crime, whatever the Second Amendment now says about possession prosecutions. This is exactly the kind of trap where getting legal advice before you act is worth far more than defending a charge afterward.

Does a Florida Medical Marijuana Card Take Away Your Gun Rights?

No — holding a Florida medical marijuana card does not, by itself, disqualify you from owning or possessing a firearm under Florida law. Florida’s medical marijuana statute, Fla. Stat. § 381.986, created a physician-certification system with a patient registry, and nothing in Florida’s gun statutes makes registered patients prohibited possessors.

Florida’s concealed-carry licensing statute, Fla. Stat. § 790.06, does contain drug-related disqualifiers that patients should know about. The Department of Agriculture must deny a license to an applicant who “chronically and habitually uses alcoholic beverages or other substances to the extent that his or her normal faculties are impaired,” and to anyone found guilty of a chapter 893 drug crime within the three years before applying. A conviction for a controlled-substance offense also triggers revocation of an existing license. So while the card itself is not a disqualifier, a marijuana-related conviction — even a misdemeanor — can cost you your carry license for years.

Where Is Medical Marijuana Use Still Illegal Even With a Card?

A Florida medical marijuana card authorizes “medical use” — and the statute defines that term to exclude specific places, so using marijuana in the wrong location remains a crime even for a fully registered patient. Under § 381.986, “medical use” does not include using or administering marijuana on public transportation, in any public place, in an enclosed indoor workplace, on school grounds, or — critically for Tampa Bay’s boaters and drivers — “in a school bus, a vehicle, an aircraft, or a motorboat,” with a narrow exception for low-THC cannabis not in a form for smoking. A qualified patient who uses marijuana in plain view of the public or in a vehicle or boat commits a first-degree misdemeanor.

The Sixth District Court of Appeal enforced exactly this limit in Tanaka v. State, No. 6D2024-1581 (Fla. 6th DCA June 19, 2026), a Collier County case where the court affirmed a conviction by quoting the statute’s rule that “medical use” does not cover marijuana in a vehicle, aircraft, or motorboat. The lesson for the hundreds of thousands of Floridians with cards: your protection travels with the statute’s definitions, not with the card in your wallet. Smoking in your car — parked or moving — is outside the program, and once an officer smells it, you may face both the misdemeanor and a vehicle search. Our attorneys have litigated where the odor-of-cannabis doctrine now stands in the Tampa Bay area; see our analysis of Florida’s Second DCA limiting the plain-smell doctrine.

Can 18-to-20-Year-Olds Carry a Concealed Gun in Florida Now?

As of mid-2026, Florida’s ban on concealed-carry licenses for adults under 21 has been declared facially unconstitutional by one of Florida’s appellate courts — a major shift, though not yet a statewide settled rule. In Eubanks v. State, No. 4D2025-1698 (Fla. 4th DCA June 17, 2026), a Broward County prosecution for carrying a concealed firearm, the Fourth District held that § 790.06(2)(b) — which requires concealed-carry applicants to be 21 — “is facially unconstitutional as it relates to 18- to 20-year-olds.” The court reasoned that 18-to-20-year-olds are part of “the people” the Second Amendment protects, that the State produced no historical tradition of categorically disarming young adults, and — quoting the U.S. Supreme Court’s Rahimi decision — that a group cannot be “disarmed simply because he is not ‘responsible.’” The court reversed the young man’s conviction outright.

Two cautions before anyone under 21 straps on a holster. First, Eubanks is a Fourth District decision; Tampa, Hillsborough, Pinellas, and Pasco Counties sit in the Second District, which has not yet spoken, and the State may seek further review in the Florida Supreme Court. Second, the decision addressed concealed carry — it did not touch Florida’s open-carry ban or the separate federal rules for handgun purchases by under-21 buyers. Anyone in that age group facing a carry charge should treat Eubanks as a powerful defense to raise, not a settled right to rely on. For the broader landscape — permitless carry under Fla. Stat. § 790.01, where guns are still prohibited, and how gun charges are penalized — see our guide to gun crime laws in Florida.

How Do These Decisions Change a Florida Gun Charge Defense?

They add constitutional attacks to a defense toolbox that already starts with the Fourth Amendment. When our attorneys defend a Tampa Bay gun charge involving marijuana, the analysis now runs on three tracks at once.

1. Was the stop and search lawful? Most marijuana-and-gun cases begin with a traffic stop, a pat-down, or a search justified by the smell of cannabis. If the stop was unlawfully prolonged or the frisk exceeded its limits, the gun itself can be suppressed — see our breakdown of stop and frisk law in Florida.
2. Is the charge constitutional after Hemani and Eubanks? A federal § 922(g)(3) charge premised on use alone is now unconstitutional as applied. A state concealed-carry charge against an otherwise law-abiding 18-to-20-year-old is squarely challenged by Eubanks. These arguments are raised by motion — and where a district conflict exists, preserving the issue protects your appeal.
3. Does the statute even fit the facts? Was the marijuana “medical use” within § 381.986? Was the firearm actually “possessed”? Was a license exception satisfied? The State must prove every element, and pre-file advocacy — engaging the State Attorney’s Office before charges are formalized — can resolve borderline cases before they ever reach a courtroom.

What Should You Do If You Are Arrested on a Marijuana-Related Gun Charge?

Move fast, and say nothing about your marijuana use to anyone but your lawyer. Statements about how often you use — the exact fact that decides whether the government can build a lawful case after Hemani — are routinely volunteered in the first police interview, and they are admissible. In Hillsborough County, a felony gun arrest means booking at Orient Road Jail, first appearance within 24 hours, and formal charging decisions by the State Attorney’s Office in the weeks that follow. That charging window is where an early defense presentation can change everything: our attorneys use it to put suppression problems, Hemani and Eubanks issues, and medical-marijuana documentation in front of the prosecutor before the filing decision is made. If you were just arrested, our step-by-step guide to what to do after being arrested in Tampa walks through the first 72 hours.

For more about our defense strategies, visit our Hillsborough County criminal defense page.

Frequently Asked Questions

Can I buy a gun in Florida if I have a medical marijuana card?

Florida law does not prohibit the purchase, but the federal purchase form still asks whether you are an unlawful user of marijuana, and marijuana remains federally unlawful even for state medical patients. Answering falsely on ATF Form 4473 is a federal felony that Hemani did not eliminate. Our attorneys advise cardholders on lawful paths before purchase, because this is far easier to get right in advance than to defend afterward.

Did the Supreme Court legalize gun ownership for all drug users?

No. United States v. Hemani, No. 24-1234 (U.S. June 18, 2026), held only that prosecuting a person for regular marijuana use alone violates the Second Amendment. The Court expressly left open prosecutions of people who are addicted, armed while presently intoxicated, or shown by individualized proof to be dangerous — and it did not touch the felon-in-possession ban.

Can I keep a gun in my car along with my medical marijuana?

Carrying a firearm in your vehicle can be lawful under Florida’s permitless-carry framework, but using marijuana in a vehicle is never “medical use” under Fla. Stat. § 381.986 — it is a first-degree misdemeanor even for cardholders. Combining the two also invites a search and a charging decision that treats you as an unlawful user. Keep the marijuana sealed, in its original packaging, and never use it in the car or on a boat.

Can an 18-year-old legally carry a concealed gun in Florida in 2026?

The Fourth District held in Eubanks v. State that the 21-and-over rule in § 790.06(2)(b) is facially unconstitutional, but that ruling comes from South Florida’s appellate district and the issue is not finally settled statewide. In Tampa Bay — the Second District — prosecutors may still file the charge, and the defense must raise Eubanks by motion. The Brancato Law Firm, P.A. litigates these constitutional challenges and preserves them for appeal.

Will a marijuana conviction cost me my concealed weapons license?

Yes — a finding of guilt for a chapter 893 drug crime requires revocation of a Florida concealed-carry license, and it bars a new license for three years under Fla. Stat. § 790.06. That collateral consequence is one more reason to fight a “minor” possession charge rather than plead it out quickly. We routinely defend possession cases with the license consequences as a central goal.

Does Florida report medical marijuana patients to the federal government?

Florida’s medical marijuana use registry is a state system, and Florida law treats patient records as confidential; the registry is not a public list handed to federal authorities. But dispensary purchases, statements to police, and social media can all establish “unlawful user” status in a federal case. If you hold a card and own firearms, The Brancato Law Firm, P.A. can walk you through how the two programs actually interact.

Marijuana-and-gun law is moving faster right now than at any point in decades — Hemani and Eubanks both landed within a single week of June 2026, and the next round of decisions will decide how far they reach in Tampa Bay. If you are facing a gun or marijuana charge, or you hold a medical card and want to keep your gun rights intact, call the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — at (813) 727-7159 today. Constitutional defenses are strongest when they are raised before the State’s filing decision, not after.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I taught search and seizure at the police academy, and most of the gun cases our attorneys defend begin exactly there — with a stop, a frisk, or a car search that has to survive the Fourth Amendment before any gun charge can.

Can You Carry a Concealed Gun Without a Permit in Florida?

Yes — since July 1, 2023, Florida is a permitless-carry state. Under section 790.01, Florida Statutes, a person may carry a concealed weapon or firearm if they are either licensed or unlicensed but otherwise satisfy the criteria for receiving and keeping a concealed-carry license — essentially, an adult who could lawfully get the license may carry without ever applying for it.

The crimes that remain: a person who is unlicensed and ineligible for a license commits a first-degree misdemeanor for carrying a concealed weapon, and a third-degree felony — up to five years — for carrying a concealed firearm. And here is what the arrest reports rarely mention:

Section 790.01(4) puts that burden expressly on the State: it must prove, as elements, both that you were unlicensed and that you were ineligible under the license criteria. Officers in the field often cannot know either fact — which affects not just the charge but the legality of the stop itself. The statute even contains a hurricane-state exception: lawful gun owners may carry concealed while evacuating during the first 48 hours of a mandatory evacuation order.

Is Open Carry Legal in Florida Now?

As of late 2025, yes — for people who may lawfully possess firearms. In McDaniels v. State, No. 1D2023-0533 (Fla. 1st DCA Sept. 10, 2025), Florida’s First District held the state’s decades-old open-carry ban, section 790.053, unconstitutional under the Second Amendment: applying the U.S. Supreme Court’s Bruen test, the court found no historical tradition supporting a categorical ban, declaring that “[t]he Constitution protects the right to carry arms openly for self-defense.” The Attorney General directed that the ruling be honored statewide, and other districts have since acknowledged it. We broke the decision down in detail — including what it does not change — in our guide to Florida’s 2025 open-carry ruling.

The critical caveats: McDaniels protects ordinary, law-abiding adults. It does not restore gun rights to convicted felons or others prohibited from possession, it does not eliminate location restrictions, and it does not license waving a gun around — which brings us to the charge that has quietly become the workhorse of Tampa Bay gun prosecutions.

What Is Improper Exhibition of a Firearm?

Under section 790.10, Florida Statutes, exhibiting a firearm or other weapon “in a rude, careless, angry, or threatening manner,” in the presence of one or more persons and not in necessary self-defense, is a first-degree misdemeanor — up to a year in jail. In the permitless-carry era, this is the charge that turns a traffic dispute, a neighbor feud, or an argument in a parking lot into a criminal case: carrying the gun was legal; how it was displayed is what gets charged.

The defense terrain is favorable. “Rude, careless, angry, or threatening” is in the eye of an alarmed complainant; the statute itself excludes displays in necessary self-defense; and the line between lawful open carry, a defensive display, and improper exhibition is now genuinely unsettled after McDaniels. Where the display escalates into a charge of aggravated assault, remember what our assault guide explains: aggravated assault was removed from 10-20-Life in 2016, so the automatic firearm minimums people fear do not apply to that charge.

What Is Felon in Possession of a Firearm?

The most unforgiving gun crime in Florida. Under section 790.23, Florida Statutes, a convicted felon may not own or have in his or her “care, custody, possession, or control” any firearm, ammunition, or electric weapon — and the same ban reaches people found delinquent of felony-level acts who are under 24. It is a second-degree felony punishable by up to 15 years, and under the 10-20-Life statute, actual possession carries a 3-year mandatory minimum.

Three battlegrounds decide these cases. First, actual versus constructive possession: a gun in a shared car or house is not automatically “possessed” by the felon in the room — constructive possession requires proof of knowledge and dominion, it is hotly litigable, and the 3-year minimum attaches only to actual possession. Second, the search: these charges almost always begin with a stop or search that can be challenged. Third, the predicate: the ban does not apply if civil rights and firearm authority have been restored or the record was expunged — and whether an out-of-state disposition even qualifies as a “conviction” is a legal question worth litigating. Courts are also actively wrestling with Second Amendment challenges to felon-possession bans after Bruen; that litigation is moving, and preserving the issue can matter.

What Is Florida’s 10-20-Life Law?

Section 775.087(2), Florida Statutes imposes escalating mandatory minimums when a firearm is involved in one of its enumerated felonies:

The enumerated felonies include murder, robbery, burglary, kidnapping, aggravated battery, carjacking, home-invasion robbery, drug trafficking, and others — but not aggravated assault, which the Legislature removed in 2016. These minimums strip judges of discretion, which transfers all the power to the charging decision — and that is precisely where early defense work pays: whether the felony charged is actually a listed one, whether possession was “actual,” and whether the discharge caused the harm are all questions that decide decades.

Where Are Guns Still Prohibited?

Permitless carry and McDaniels changed who may carry and how — not where. The license statute’s list of prohibited places (schools and school events, courthouses, polling places, bars’ alcohol-service areas, and more) still applies to carriers, licensed or not, and separate statutes cover school zones and other sensitive locations. Location-based gun charges are technical, and signage, boundaries, and knowledge requirements all matter — do not assume a place restriction was valid just because a citation says so.

How Do We Defend Gun Charges?

We start with the stop. Most Tampa Bay gun cases begin with a traffic stop, a street encounter, or an anonymous tip — and after permitless carry, the sight of a firearm, without more, is a weak foundation for a detention. I taught officers this area of law at the police academy; our attorneys use that training to find the constitutional defects in how the gun was found. From there: the State’s burden to prove license ineligibility as an element; actual-versus-constructive possession in every multi-occupant case; the necessary-self-defense exclusion in exhibition cases; predicate and restoration issues in felon-possession cases; and the charging-precision fights that keep 10-20-Life minimums out of the case. Gun charges carry the harshest math in Florida sentencing — the defense has to start before the math does.

What Should You Do If You Are Arrested on a Gun Charge?

Say nothing about the gun — not whose it is, not why it was there, not that you “didn’t know it was still in the bag.” Possession cases are built on statements more often than fingerprints. Then move fast: the stop and search that produced the firearm are the foundation of the case, and the video, witnesses, and dispatch records that test them are freshest in the first weeks. If you are a prior felon, bring your complete history — including any rights restoration — to counsel immediately, because the difference between a defensible case and a 3-year minimum can be one document. Our attorneys evaluate the search first, the possession theory second, and the plea posture last.

Frequently Asked Questions About Florida Gun Crimes

Do I need a permit to carry a gun in Florida?

Not for concealed carry, since July 1, 2023 — anyone who meets the criteria to get a concealed-carry license may carry without one. Carrying while ineligible remains a crime (a third-degree felony for a concealed firearm), and the license itself still has benefits, including reciprocity in other states. Our attorneys still see arrests of eligible carriers; eligibility is an element the State must prove, and we hold it to that.

Is open carry legal in Florida?

Yes, as of the First District’s September 2025 decision in McDaniels v. State declaring the open-carry ban unconstitutional — a ruling honored statewide. It applies to people who may lawfully possess firearms, it leaves location restrictions intact, and it does not protect angry or threatening displays, which remain chargeable as improper exhibition. Our detailed guide to the ruling covers what changed and what did not.

Can a convicted felon ever have a gun again in Florida?

Only after civil rights and firearm authority are restored through clemency, or if the record was expunged under the specific statute — otherwise possession of a firearm or even ammunition is a second-degree felony. Whether a particular old disposition actually qualifies as a predicate conviction is a genuine legal question, and The Brancato Law Firm, P.A. examines it in every felon-possession case.

What is the penalty for carrying a concealed firearm without being eligible?

A third-degree felony — up to five years in prison. But the State must prove both that you were unlicensed and that you were ineligible for a license, as elements of the crime. Many arrests are made without officers knowing either fact, which creates both trial defenses and suppression issues.

Does pulling a gun trigger 10-20-Life?

Displaying a gun, without firing it, is typically charged as improper exhibition (a misdemeanor) or aggravated assault (a felony) — and aggravated assault is not on the 10-20-Life list. The 10-, 20-, and 25-to-life minimums attach when a firearm is possessed or discharged during one of the statute’s enumerated felonies, like robbery or burglary. Which charge gets filed is a decision our attorneys work to influence early.

Can gun charges be dismissed?

Regularly — gun cases rise and fall on the stop and search, and a suppressed firearm usually ends the prosecution. Possession theories fail in shared spaces, eligibility elements go unproven, and self-defense excludes exhibition charges. The Brancato Law Firm, P.A. defends firearm cases throughout Tampa Bay — call (813) 727-7159 for a free, confidential review before you talk to anyone about the gun.

For more about our defense strategies, visit our Hillsborough County Criminal Defense Attorney page.

Related reading: Florida’s 2025 Open-Carry Ruling: What You Need to Know · What Is Assault in Florida? · What Is Robbery in Florida? · What Is Burglary in Florida? · What to Do After Being Arrested in Tampa, Florida

Florida Gave You More Gun Rights — and Kept Every Gun Charge

If you have been arrested on a firearm charge in Hillsborough, Pinellas, or Pasco County, you are caught in the gap between a state that just expanded carry rights and prosecutors still charging every gun they find. Call the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — at (813) 727-7159 before you give a statement. The search that found the gun is the case; let us test it while the evidence is fresh.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

Rocky Brancato was among the first attorneys in Florida to take risk protection order cases when the law took effect in 2018, and he was featured in local coverage of the new law that May. The Brancato Law Firm handles these cases today across Hillsborough, Pinellas, and Pasco Counties. If you have been served, the timeline is the part to understand first, because the schedule is short and the hearing arrives fast.

What Is a Risk Protection Order in Florida?

A risk protection order is a civil proceeding under section 790.401, Florida Statutes. Law enforcement asks a circuit court to find that a person poses a significant danger of causing personal injury to themselves or others by having access to firearms or ammunition. If the court agrees, it orders the firearms and ammunition surrendered and prohibits the person from possessing, purchasing, or receiving more while the order is in effect.

An RPO is not a criminal charge and does not produce a conviction. It also does not do the things people expect from a domestic injunction. It does not order you to stay away from anyone, remove you from your home, set child time-sharing, or order support.

The rules that govern a domestic violence injunction come from section 741.30, and they matter here for a reason we cover below. Section 790.401 borrows that statute’s evidentiary procedure for the RPO hearing.

Who Can File a Risk Protection Order in Florida?

Only a law enforcement officer or a law enforcement agency. Florida is narrower on this point than most red flag states, and it is the detail readers get wrong most often, because national coverage describes states where family members can petition directly.

A spouse, parent, sibling, adult child, dating partner, therapist, coworker, school employee, or neighbor cannot file a Florida RPO petition. They can report concerns to law enforcement, and that report can become the factual basis for a petition. The decision to file belongs to the agency, and the agency becomes the named petitioner. A 2023 proposal to extend standing to parents, guardians, spouses, and siblings died in committee.

The petition is filed in the circuit court either where the agency is located or where the respondent lives. There is no filing fee, service fee, or bond.

Is Florida’s Red Flag Law Still in Effect?

Yes. House Bill 6029 would have repealed section 790.401 effective July 1, 2026. It was filed on January 6, 2026, referred to the House Criminal Justice Subcommittee, and died there on March 13, 2026 without a committee amendment, floor amendment, or recorded vote. The statute was not repealed and continues to operate exactly as it did before.

If you saw news coverage of the repeal effort and assumed the law was on its way out, that assumption will not help you at a hearing. The process below is the process you are in.

The Two Stages of a Florida Risk Protection Order

Almost every RPO moves through two separate proceedings with two different standards of proof. Knowing which stage you are in tells you what the court is actually deciding.

Stage One: The Temporary Ex Parte Order

Law enforcement can ask for a temporary order at the same time it files the petition. The allegations supporting temporary relief have to be based on the officer’s personal knowledge and have to show that the feared injury may occur in the near future.

The court holds the temporary hearing on the day the petition is filed or the next business day, in person or by telephone. You are not notified, you are not present, and you do not testify or cross-examine anyone. The standard at this stage is reasonable cause, which is materially lower than what the petitioner has to prove later. If the judge finds reasonable cause, the temporary order is issued.

Two things are worth knowing about the temporary order. It is optional. The Florida Courts petition form lets law enforcement seek a final RPO without asking for temporary relief at all, and some agencies do exactly that. It also expires on its own at the full hearing. A temporary order is not a one-year order, and it is not a finding that the allegations are true.

Stage Two: The Full Hearing

This is where the case is decided. At the noticed hearing, the petitioner must prove by clear and convincing evidence that you pose a significant danger of causing personal injury to yourself or others by having custody or control of, or purchasing, possessing, or receiving, a firearm or ammunition. If that burden is met, the court issues a final order for whatever period it considers appropriate, up to 12 months. If the petition is denied, the court has to state its particular reasons.

The statute lists a nonexclusive set of things a court may consider, including recent acts or threats of violence, acts or threats within the prior 12 months, serious mental illness or recurring mental health issues, violations of prior protective orders, a domestic violence history, threats involving a weapon, reckless display or use of a firearm, stalking, a violent crime history, corroborated substance abuse, and recent firearm acquisition.

The full hearing is a real evidentiary proceeding. Evidence has to be submitted in writing with copies to the other side, or presented under oath with the parties present. The rules of evidence apply to the same extent they do in a domestic violence injunction case.

Florida Risk Protection Order Timeline

Every deadline below comes from section 790.401. Several are measured in hours.

One detail circulates widely in the wrong form. The order does not have to be entered into the FCIC and NCIC databases within 24 hours. The clerk has 24 hours to forward it, and the law enforcement agency enters it on receipt.

What a Risk Protection Order Actually Restricts

The scope is broader than most people expect. While the order is in effect, you may not:

• Possess a firearm or ammunition
  
• Purchase or receive a firearm or ammunition
  
• Have custody or control of a firearm or ammunition, which can include items you do not physically carry
  
• Hold a Florida concealed weapon or firearm license, which is surrendered and then suspended

The surrender obligation has no grace period. It covers ammunition as well as firearms, and it attaches the moment you are served.

The order does not authorize an unlimited search of your home. The serving officer takes what is surrendered or what is located under lawful authority. If the officer has probable cause to believe firearms or ammunition were not disclosed, the officer can seek a search warrant, and the court must issue one when probable cause exists. Firearms lawfully owned by a spouse or another qualifying third party can be returned to that owner or transferred to an eligible third party, subject to a background check and storage conditions that keep them out of your reach.

An RPO also does not automatically make you a federally prohibited person. The federal prohibition at 18 U.S.C. § 922(g)(8) applies only to a qualifying order entered after notice and an opportunity to participate, restraining conduct against an intimate partner or that partner’s child, and containing specific findings or language. A temporary ex parte Florida RPO ordinarily does not meet the notice element, and a final Florida RPO does not automatically qualify either, because Florida RPOs can involve self-harm risk, non-intimate targets, or generalized danger. The Florida prohibition is fully enforceable on its own regardless.

Violating a Risk Protection Order Is a Separate Crime

This is where a civil order turns into criminal exposure. Under section 790.401(11)(b), a person who has custody or control of, purchases, possesses, or receives a firearm or ammunition knowing they are prohibited by an RPO commits a third-degree felony.

The offense turns on knowledge of the prohibition. Once you have been served, conduct that was lawful the day before becomes a felony. That holds even if you have never been arrested for anything in your life, and even if the underlying allegations are later found unproven at the hearing. Filing a materially false sworn statement to obtain an RPO is also a third-degree felony under subsection (11)(a).

If you own firearms stored somewhere else, held by a relative, or kept at a business, raise them with an attorney immediately rather than assuming the order only reaches what was in the house.

There Is No Court-Appointed Attorney in a Florida RPO Case

This part catches people off guard. The statute says no party is required to be represented by an attorney and bars an award of attorney fees. No public defender is appointed. No private attorney is appointed at public expense. If you cannot afford counsel, the hearing goes forward anyway.

The Legislature has looked at the gap and left it in place. House Bill 1455 would have given RPO respondents a right to retain counsel and a right to appointed counsel if indigent. It cleared the House Criminal Justice Subcommittee in February 2026 and died in the Justice Budget Subcommittee on March 13, 2026. A similar 2024 proposal also failed. A 2024 House staff analysis stated the baseline directly: section 790.401 does not provide a right to counsel, and no other statute authorizes appointment for an indigent RPO respondent.

There is a second gap alongside it. Section 790.401 does not require the court to record the hearing. Florida Courts’ own approved form for extension hearings says so and notes that a party who wants a transcript may arrange for a court reporter at that party’s expense. An appellate challenge generally needs an adequate record, and no one will create one for you.

How the Baker Act Connects to Risk Protection Orders

Many RPO cases begin with a mental health crisis rather than a criminal incident, and families often have no idea the two systems are wired together.

Under section 394.463, an officer taking a person for an involuntary examination may seize firearms or ammunition in that person’s possession when the person poses a potential danger and has made a credible threat of violence against another person. If the officer removes the person from a residence, the officer may seek voluntary surrender of other firearms kept there. When additional firearms are not surrendered or are believed to be somewhere else, the statute expressly authorizes law enforcement to petition for an RPO.

The seizure that happens under the Baker Act alone is short-lived. Property seized or voluntarily surrendered has to be made available for return no later than 24 hours after the person documents release from examination or treatment, and the return process cannot take longer than seven days. That deadline does not apply if an RPO or another legal prohibition requires continued retention. In practice, the RPO is often what keeps the firearms from coming back on discharge.

Clinical records are a separate question. Baker Act records are generally confidential. Section 394.4615 creates a narrow mandatory disclosure route. When a patient communicates a specific threat of serious bodily injury or death to an identified or readily available person, and the provider believes the patient has the apparent intent and ability to carry it out imminently, the facility must give law enforcement enough information to act, and initiating an RPO is one of the listed responses. Ordinary therapy notes do not become court exhibits under that provision.

Two points cut in opposite directions here, and both are true. Being Baker Acted does not by itself establish the elements of an RPO. And a clean discharge does not end the petition. In Davis v. Gilchrist County Sheriff’s Office, the First District upheld a final RPO even though a mental health evaluator had released the respondent and did not consider him a continuing risk of violence, reasoning that the statute does not make an evaluator’s recommendation dispositive. The judge weighs the whole record.

None of that is an argument against the statute. When someone is genuinely in crisis and has made a credible threat, the law is doing what the Legislature built it to do. Our work sits with the other set of cases: the petition built on a secondhand account, a comment taken out of context, an argument that got reported, or a mental health event that has already been treated and resolved. Those cases still have to be proven with evidence at a hearing. If you or someone in your family is in crisis right now, the 988 Suicide and Crisis Lifeline is available by call or text, and asking for help is not something a court holds against you. Our work on Baker Act cases and criminal mental health defense sits at exactly this intersection, including competency evaluations and Mental Health Court in Hillsborough County.

What You Can Do If a Risk Protection Order Is Filed Against You

You cannot participate in the temporary hearing. The full hearing is your first real opportunity, which is why the two-week window matters so much.

At the hearing, a respondent can:

• Testify and present documentary evidence
  
• Call relevant witnesses, including treating providers, family members, coworkers, and character witnesses
  
• Cross-examine the officer and any witnesses the petitioner calls
  
• Object to inadmissible evidence under the rules that apply in domestic violence injunction cases
  
• Challenge hearsay, which is not automatically admissible just because the case is civil and expedited
  
• Arrange for a court reporter so there is a transcript if an appeal becomes necessary
  

The hearsay point does real work in these cases. Petitions are frequently built on what a spouse says a therapist said, or what a coworker says a friend heard. Written allegations in a petition do not prove themselves at the final hearing. Those statements may still come in, because a statement can be nonhearsay, can fall within an exception, or can be replaced by live testimony from the person who actually said it. The petitioner has to do that work rather than rely on the paperwork.

After a final order is entered, there is one more route:

• Motion to vacate. You may file one written request for a hearing to vacate after the final order, and one more after each extension. The hearing is set no sooner than 14 days and no later than 30 days after the request is served on the petitioner. At that hearing the burden flips: you must prove by clear and convincing evidence that you no longer pose a significant danger.

• Extension hearings. At least 30 days before the order expires, the clerk notifies the petitioner. The petitioner can move to extend within that window. Each extension can run up to 12 months, continued danger must again be proven by clear and convincing evidence, and the statute sets no limit on how many extensions can follow. Twelve months is the maximum length of a single order, and the restriction can be renewed.
  

Getting Firearms Back After a Risk Protection Order Ends

Expiration does not trigger an automatic return. Once the order ends without extension, or is vacated, you have to request the property back from the agency storing it.

Before returning anything, law enforcement must run a background check confirming you are not otherwise barred under state or federal law and verify the RPO is no longer in effect. Family or household members receive notice before firearms or ammunition are returned. A surrendered concealed weapon license is a separate track, reinstated by the Department of Agriculture and Consumer Services only after it confirms eligibility. Firearms and ammunition left unclaimed for a year after an order vacating the RPO may be disposed of under the agency’s policy, so the request should not wait.

If you want a fuller picture of how firearm possession rules work in Florida outside the RPO context, our overview of Florida gun crime laws and our breakdown of the 2025 open carry ruling cover the surrounding law.

How Often Are Risk Protection Orders Used in Tampa Bay?

The best available government tally comes from the Office of the State Courts Administrator, which compiled statewide RPO activity from March 2018 through June 2022.

Those numbers carry a caveat the report states itself. Each clerk supplied the data, the figures were not audited, and counties used inconsistent reporting conventions, which is why some county totals do not reconcile cleanly. A 2026 peer-reviewed study in the American Journal of Preventive Medicine independently collected more than 8,600 petitions filed across 65 counties between March 2018 and December 2021 and found wide variation in how heavily different counties use the law.

Local practice varies too, even though the deadlines and burdens do not. In Hillsborough County, the Thirteenth Judicial Circuit’s current administrative order lets any sworn law enforcement officer in the county serve RPO papers rather than limiting service to the sheriff, and RPO matters are administered within the probate, guardianship, mental health, and trust division. Pinellas and Pasco sit in the Sixth Judicial Circuit, where filing, assignment, and hearing logistics can differ. None of that changes the 14-day hearing window, the clear and convincing standard, or the immediate surrender obligation.

Other Consequences of a Florida Risk Protection Order

• Your concealed license is suspended. This is the one automatic licensing consequence in the statute. Reinstatement happens only after the order ends and the state confirms you are otherwise eligible.
  
• The case is a public record. Although section 790.401 designates RPOs as mental health cases for reporting purposes, the Florida Supreme Court’s electronic access order treats them as publicly viewable circuit civil matters rather than confidential files. Background screeners can find them. Protected clinical records and confidential identifiers remain separately protected.
  
• Employment effects depend on your job. Section 790.401 does not suspend professional or occupational licenses across the board. Real consequences still show up where a job requires personal firearm possession, a concealed license, a security clearance, or disclosure of civil injunctions. Those turn on your regulator, employer, and any applicable collective bargaining agreement rather than on the RPO statute itself.
  
• A related case can be running at the same time. An RPO frequently arrives alongside a domestic violence defense matter or a pending criminal investigation. Decisions in one proceeding can affect the other, including anything you say under oath.
  

Talk to a Tampa RPO Attorney Before Your Hearing

The timeline is the whole problem. From service to the hearing that decides the outcome, you may have less than two weeks to gather records, line up witnesses, prepare cross-examination, and decide whether to testify in a civil proceeding while a criminal investigation may still be open. No one is appointed to do that for you, and no transcript exists unless someone arranges one.

The Brancato Law Firm handles risk protection order cases across Hillsborough, Pinellas, and Pasco Counties, and Rocky Brancato has worked on them since the statute took effect in 2018. You can read more about our approach to gun crimes defense and our work as Hillsborough County criminal defense attorneys.

If you have been served, or if firearms were taken during a Baker Act call and you have been told a petition is coming, call or reach out through our contact page for a confidential consultation.

If a prosecutor or deputy mentioned 10-20-Life in connection with your case or your family member’s case, you are looking at one of the harshest sentencing structures in Florida law. This article explains how the statute actually works, which felonies trigger it, how the 2014 and 2016 reforms changed the picture, how the law interacts with self-defense and Stand Your Ground, and the strategies that move a case off the mandatory floor.

What Is Florida’s 10-20-Life Law?

Florida’s 10-20-Life law is the popular name for Florida Statute § 775.087, titled “Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.” It took effect on July 1, 1999 under the slogan “Use a gun, and you’re done,” and was the centerpiece of then-Governor Jeb Bush’s anti-violent-crime agenda.

The statute does two things that defendants and their families need to understand separately:

• Felony reclassification (subsection 1). When a weapon or firearm is used during the commission of any felony where the weapon is not already an essential element, the statute “bumps up” the charge by one degree. A third-degree felony becomes a second-degree felony. A second-degree becomes a first-degree. A first-degree becomes a life felony.
• Mandatory minimum sentences (subsections 2 and 3). When a firearm or destructive device is used during one of the enumerated qualifying felonies, the court must impose 10, 15, 20, or 25-years-to-life depending on what was done with the firearm and what kind of firearm it was.

The companion provision at Florida Statute § 27.366 makes the legislative intent explicit: the Legislature wanted “zero tolerance” for firearm use in the listed felonies, and it instructed prosecutors to apply the mandatory minimums except in cases where the firearm was “incidental” rather than used in furtherance of the crime.

A few features make 10-20-Life unusually harsh compared to ordinary Florida sentencing:

• The minimum mandatory must run consecutively to any other sentence in the case.
• The defendant is statutorily ineligible for gain time, parole, or any form of discretionary early release.
• The mandatory minimum applies even if it exceeds the statutory maximum for the underlying felony.
• A judge cannot sentence below the floor, regardless of mitigating factors. Only the prosecutor can waive it.

Florida abolished parole decades ago, so most prison sentences are served at 85 percent. A 10-20-Life sentence is served at 100 percent, day for day.

The Three Mandatory Minimum Tiers

The basic structure of § 775.087(2) breaks the mandatory minimum into three tiers based on what the defendant did with the firearm during a qualifying felony.

There is also an enhanced tier under § 775.087(3) for semiautomatic firearms with high-capacity detachable box magazines or machine guns: 15 years for possession, 20 years for discharge, and 25 years to life if the discharge causes injury or death.

A reduced 3-year tier exists within § 775.087(2)(a)1. It applies in place of the 10-year minimum for possession of a firearm by a felon, burglary of a conveyance, and (for offenses occurring before July 1, 2016) aggravated assault.

A few practical points that often get missed:

• Possession alone is enough. You do not have to fire the gun, point it at someone, or even say anything threatening. Carrying it during the commission of a qualifying felony triggers the 10-year minimum.
• “Displaying” is broad. Showing the firearm during the felony qualifies, even briefly.
• Each count is separate. If multiple people are present during the qualifying felony, the State can file separate counts and stack the mandatory minimums consecutively. The Marissa Alexander case, discussed below, exposed how a single act of firing a single shot was charged as three separate counts, exposing her to a 60-year stack.

Which Felonies Trigger 10-20-Life?

The mandatory minimums only apply when a firearm is used during one of the enumerated felonies in § 775.087(2)(a)1. The current list, after the 2016 reform that removed aggravated assault, includes:

• Murder
• Sexual battery
• Robbery
• Burglary
• Arson
• Aggravated battery
• Kidnapping
• Escape
• Sale, manufacture, delivery, or intent to sell, manufacture, or deliver any controlled substance
• Aircraft piracy
• Aggravated child abuse
• Aggravated abuse of an elderly person or disabled adult
• Unlawful throwing, placing, or discharging of a destructive device or bomb
• Carjacking
• Home-invasion robbery
• Aggravated stalking
• Trafficking in cannabis, cocaine, illegal drugs, phencyclidine, methaqualone, or amphetamine under § 893.135
• Possession of a firearm by a felon (lower 3-year tier)

Charges that are not on this list, including standalone aggravated assault for any offense after July 1, 2016, do not trigger the 10-20-Life mandatory minimums. They may still carry serious penalties under other Florida statutes, but the day-for-day mandatory floor of § 775.087 does not attach.

This list is the single most important diagnostic tool when 10-20-Life is mentioned in a case. If the charged felony is on the list and a firearm was involved, the exposure is real. If the felony is not on the list, the charging document needs careful reading to determine what the prosecutor is actually relying on.

What Changed in 2014 and 2016

For roughly the first 15 years of the law, Florida courts had no statutory off-ramp for self-defense cases that swept up sympathetic defendants. That changed after a series of high-profile cases, most notably the Marissa Alexander case in Jacksonville, exposed how the statute was being applied to people who had fired warning shots in self-defense without injuring anyone.

The 2014 and 2016 reforms are frequently confused with each other in popular summaries. They are different statutes with different effects.

HB 89 (2014), the “Threatened Use of Force Act.” Signed by Governor Rick Scott in June 2014, this bill added a self-defense exception at § 775.087(6) that allowed a court to depart from the aggravated assault mandatory minimum if it made four findings on the record: that the defendant had a good-faith belief the assault was justifiable under Chapter 776, that the assault was not committed during another criminal offense, that the defendant did not pose a threat to public safety, and that the totality of the circumstances did not justify the mandatory sentence. HB 89 also extended Florida’s Stand Your Ground framework to threatened use of force, including warning shots. The 2014 law applied retroactively, allowing then-incarcerated prisoners to seek clemency review.

SB 228 (2016). Signed in February 2016 and effective July 1, 2016, this bill removed aggravated assault entirely from the list of qualifying felonies in § 775.087(2)(a)1. The 10, 15, 20, and 25-to-life mandatory minimums no longer apply to standalone aggravated assault charges in Florida. The 2014 self-defense carve-out at § 775.087(6) became largely moot once aggravated assault was removed from the list.

The most important caveat: SB 228 was not retroactive. People sentenced under 10-20-Life for aggravated assault before July 1, 2016 are still serving those sentences. As Families Against Mandatory Minimums noted at the time of the bill’s signing, the 2016 law was the first time Florida had repealed a mandatory minimum sentence in more than 20 years, but the change did not benefit people already serving 10-20-Life sentences for aggravated-assault-with-a-firearm convictions.

If you or a family member is facing standalone aggravated assault in Florida today, 10-20-Life is no longer in play for that charge. If you are dealing with a pre-2016 conviction, the path forward is clemency or post-conviction relief, not the statute itself. Read more about aggravated assault charges in Florida to understand current sentencing exposure.

How 10-20-Life Interacts With Stand Your Ground

Florida’s Stand Your Ground framework under §§ 776.012, 776.013, and 776.032 provides immunity from criminal prosecution if the defendant reasonably believed the use or threatened use of force was necessary to prevent imminent death or great bodily harm. The 2014 expansion confirmed that Stand Your Ground covers the threatened use of force, including displaying a firearm or firing a warning shot.

The interaction with 10-20-Life is straightforward and brutal. Stand Your Ground, if successfully invoked at a pretrial immunity hearing, is a complete defense. The case ends. There is no conviction, and 10-20-Life never attaches. If the immunity motion is denied or never filed, the case proceeds, the jury can still reject the self-defense theory at trial, and 10-20-Life can apply to whatever qualifying felony the jury convicts on.

What this means in practice:

• The Stand Your Ground hearing is decided on a preponderance of the evidence, which is a much lower standard than reasonable doubt. A defendant who can establish self-defense more likely than not at the immunity hearing is immune from prosecution.
• A failed immunity motion still preserves self-defense at trial. The same evidence can be presented to the jury, where the burden flips to the State to disprove self-defense beyond a reasonable doubt.
• Strategic timing matters. Filing the immunity motion before discovery is complete can lock in a weaker record. Filing late can cost leverage. The decision is case-specific.

The Marissa Alexander, Orville Lee Wollard, and Erik Weyant cases that drove the 2014 and 2016 reforms all involved defendants who believed they had viable self-defense arguments, lost their pretrial immunity motions or never had them properly evaluated, went to trial, and got hit with the 20-year mandatory minimum. Stand Your Ground is a critical motion that has to be litigated carefully from the earliest stages of the case.

Why the Mandatory Minimum Is the Floor, Not the Ceiling

This is the single most misunderstood feature of 10-20-Life. The statute sets the minimum sentence the court must impose. It does not cap the sentence.

A few examples of how this plays out:

• Multiple counts stack consecutively. As the Florida appellate court confirmed in the Marissa Alexander case, when a single act of firearm use endangers multiple people, the State can charge separate counts of a qualifying felony, and each count carries its own mandatory minimum that must run consecutively. One trigger pull, three people in the room, three 20-year minimums equals a 60-year exposure.
• Discharge causing death triggers 25 to life. The top tier ranges from a hard 25-year minimum all the way to life. A jury convicting on the underlying felony plus the discharge-with-death finding does not cap the sentence at 25.
• The mandatory must be served before any other sentence in the case. It runs consecutively to anything else.

According to a Florida Department of Corrections analysis of the law’s first six years, reproduced at Encyclopedia.com, 154 felons whose longest 10-20-Life mandatory was 10 years still received total sentences of life in prison. More than 45 percent of felons who injured or killed a victim with a firearm (the 25-year-to-life tier) received life sentences.

The 10-year tier is where the sentence begins. Where it ends depends on the underlying felony, the State’s charging decisions, and the judge’s discretion above the floor.

How Prosecutors Use 10-20-Life as Leverage

Because only the prosecutor can waive the mandatory minimum, and because the gap between a plea offer and a trial conviction can be enormous, 10-20-Life creates extraordinary plea pressure on defendants. Florida law (§ 27.366) requires a prosecutor who declines to apply the mandatory minimum in a qualifying case to file a written explanation in the case file. That requirement was designed to encourage application of the statute.

A typical leverage dynamic looks like this. The defendant is charged with a qualifying felony with a firearm enhancement. The State opens with a plea offer that may be 3, 5, or 7 years, depending on the facts. The trial exposure, if convicted, is the mandatory minimum on top of the underlying felony, often 20 years, served day for day. The defendant who believes they are innocent or has a viable defense faces a stark choice: take the plea, or risk the trial penalty.

The cases that drove the 2014 and 2016 reforms, including Orville Lee Wollard’s 20-year sentence for firing a warning shot in his own home, all featured defendants who turned down low pleas in good-faith reliance on self-defense arguments and got hit with the full mandatory at trial.

This is why early attorney involvement matters more on a 10-20-Life case than almost any other charge. The negotiating window is real, and it closes quickly. The decisions made in the first few weeks, including whether to talk to police, whether to file pre-file advocacy with the State Attorney’s Office, what to lock into the bond record, and how to position the case for a Stand Your Ground motion, often determine whether the case ends in dismissal, in a plea below the mandatory, or at the floor.

Defense Strategies Against 10-20-Life Charges

A defense attorney’s job on a 10-20-Life case is to defeat the underlying felony, defeat the firearm enhancement, or negotiate the case to a non-qualifying offense before sentencing exposure attaches. Arguing the mandatory minimum at sentencing comes too late. By that point, the fight is over.

The strategies that move 10-20-Life cases off the mandatory floor fall into a few categories.

Self-defense and Stand Your Ground. A successful pretrial immunity motion ends the case before sentencing exposure attaches. The motion is decided on a preponderance of the evidence and requires careful preservation of the factual record from the earliest stages of the case.

Challenging “actual possession.” The 10-year and higher tiers require actual possession. Florida case law defines actual possession narrowly: the firearm must be in the defendant’s hand or on the person, in a container being carried, or so close as to be within ready reach and under the defendant’s control. A firearm found in a vehicle accessible to multiple occupants, or in a shared residence, is generally constructive possession, which can defeat the 10-year minimum even if the defendant is convicted of a lesser firearm offense.

Challenging discharge or great-bodily-harm findings. The 20-year and 25-to-life tiers require the State to prove the firearm was discharged, and for the top tier, that the discharge caused death or great bodily harm. Forensic, ballistic, and medical-causation challenges can collapse the higher tiers and drop the case down to the 10-year possession floor or below.

Suppression of evidence. Because possession of the firearm is the gateway to the enhancement, motions to suppress under the Fourth Amendment, challenging the legality of the stop, the search, the warrant, or the chain of custody, can eliminate the firearm from evidence and collapse the entire enhancement.

Mistaken identity. Many shooting cases turn on eyewitness identification, which is a known source of wrongful conviction. Pretrial motions to suppress unreliable identifications, expert testimony on eyewitness reliability, and alibi evidence are standard tools.

Charge bargaining to a non-qualifying offense. Because only the prosecutor can waive the mandatory, the most direct path off the floor is often a negotiated plea to a non-enumerated felony or a reduced firearm-display charge under § 790.10. Post-2016 aggravated assault is no longer on the qualifying list, which has given defense attorneys more room to negotiate in cases that previously had none.

Youthful offender designation. A defendant who is 20 or younger at sentencing may qualify for sentencing as a Youthful Offender under Florida Statute § 958.04, which caps incarceration and supervision at six years and allows a judge to override the 10-20-Life minimum. This requires judicial discretion to invoke, and the threshold question is eligibility.

The right strategy in any individual case depends on the specific facts, the charging decisions of the State Attorney, and Florida case law that has developed under § 775.087. There is no template. There are only options, and the value of an experienced criminal defense attorney is in knowing which combination of options actually fits the case.

Why Early Attorney Involvement Is Non-Negotiable

The 10-20-Life cases that resolve well almost always share one feature: the defense was active before charges were filed, before the bond hearing locked in the wrong record, and before the defendant said anything to police that closed off later options.

At The Brancato Law Firm, our gun and weapons crimes practice is built around the reality that the negotiating window on these cases is short and the stakes are permanent. Rocky Brancato served as Chief Operations Officer of the Hillsborough County Public Defender’s Office, leading the largest criminal defense operation in Tampa Bay. That system-level knowledge of how charging decisions are made, where prosecutors have flexibility, and where they do not, informs every 10-20-Life case the firm handles. Rocky has tried more than 150 jury trials to verdict and is death-qualified under Rules of the Florida Supreme Court, a credential that reflects the rigorous standards required for the most serious criminal matters.

The pre-file window, the suppression motion, the Stand Your Ground motion, and the charge-bargaining conversation all happen on a clock. The defendant who hires counsel after the State has filed a 20-year exposure is fighting from behind. The defendant who hires counsel in the days after arrest, before the State has committed to a charging theory, has options that close the longer they wait.

Frequently Asked Questions About 10-20-Life

Does 10-20-Life apply to every gun crime in Florida?

No. 10-20-Life only applies when a firearm is used during one of the enumerated felonies in § 775.087(2)(a)1. Possession of a firearm without a connection to a qualifying felony, improper exhibition under § 790.10, and standalone aggravated assault for offenses after July 1, 2016 are not 10-20-Life cases.

Can a judge sentence me below the 10-20-Life mandatory?

Generally no. With limited exceptions for youthful offender designation under § 958.04, judges have no discretion to sentence below the mandatory minimum. Only the prosecutor can waive it.

What does “actual possession” mean for 10-20-Life?

Actual possession under Florida law means the firearm is in your hand, on your person, in a container you are carrying, or within your immediate ready reach and control. A firearm found in a shared vehicle or shared residence is generally constructive possession, which can defeat the 10-year mandatory minimum even on a conviction for a lesser firearm offense.

Is the 2016 aggravated assault reform retroactive?

No. SB 228 (2016) removed aggravated assault from the list of 10-20-Life qualifying felonies effective July 1, 2016, but the change does not apply to people already sentenced under the prior law. The 2014 self-defense exception under HB 89 was retroactive, but the 2016 repeal was not.

Can Stand Your Ground get a 10-20-Life case dismissed?

Yes, if the immunity motion succeeds. A successful pretrial Stand Your Ground motion under § 776.032 ends the prosecution before any sentencing exposure attaches. The motion is decided on a preponderance of the evidence and requires preservation of the factual record from the earliest stages of the case.

Will I serve 100 percent of a 10-20-Life sentence?

Yes. People sentenced under 10-20-Life are statutorily ineligible for gain time, parole, or any form of discretionary early release. The minimum is served day for day, and it runs consecutively to any other sentence in the case.

Talk to a Criminal Defense Attorney About Your 10-20-Life Exposure

If you or a family member is facing a felony charge in Hillsborough, Pinellas, or Pasco County and a firearm is involved, the time to act is now, before the State commits to a charging theory. The Brancato Law Firm offers free, confidential consultations and is available 24/7 for arrest emergencies. Call (813) 727-7159 to talk through your case with an experienced criminal defense attorney.

Each case is unique. Past results do not guarantee future outcomes.

In a homicide case, prosecutors love to show the jury photographs of the defendant holding a gun. After all, such images create a powerful visual association: this person had a gun, and someone died from a gunshot. However, for such evidence to be admissible, the prosecution must establish a nexus—a connection between the gun in the photograph and the gun used in the crime.

When the guns merely look similar, that connection does not exist. Similar is not the same. In this homicide case, a firearms expert with decades of experience identified the precise model of the gun in my client’s social media photo—and proved it was not the murder weapon. As a result, we kept the prejudicial photograph out of evidence entirely.  I am Tampa Criminal Defense Attorney Rocky Brancato. This post is part of our forensic series put out by the Brancato Law Firm, P.A., your Tampa criminal forensic evidence law firm.

The Case: A Young Defendant and a Damaging Photo

My client, a young man, faced homicide charges. The state had recovered the murder weapon and placed it into evidence. They also had something else they wanted the jury to see: photographs from my client’s social media showing him holding a gun.

To a casual observer, the gun in the social media photos looked similar to the murder weapon. Both appeared to be the same general type of firearm. The prosecution intended to use these images to suggest my client had possessed a gun like the one used in the killing—creating a damaging association in the jurors’ minds.

However, when I examined the photographs closely, I noticed something important: certain features of the gun in the photo appeared different from the murder weapon. The guns were similar, but were they actually the same model? If not, the prosecution had no business showing these photos to the jury.

The Expert: A Lifetime of Firearms Knowledge

To challenge the prosecution’s evidence, I needed someone who could look at a photograph and identify the precise make and model of the firearm depicted. Fortunately, I found an expert whose qualifications were extraordinary.

This expert had grown up around firearms, handling guns since childhood. Subsequently, he built a career in law enforcement, working first for a local police department and then retiring from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Throughout his career, he developed an encyclopedic knowledge of weapons.

Most impressively, he had toured nearly every major firearms manufacturing factory in the world. As a result, he possessed firsthand knowledge of how different manufacturers design and produce their weapons—knowledge that allowed him to identify subtle differences between similar-looking firearms that most people would never notice.

The Analysis: Identifying the Precise Model

I provided my expert with the social media photographs and access to examine the murder weapon in evidence. His task was straightforward: determine whether the gun in the photos matched the gun used in the homicide.

The expert examined the photographs carefully, focusing on specific features of the firearm: the shape of the slide, the configuration of the grip, the placement of controls, and other distinguishing characteristics. Based on these features, he identified the precise make and model of the gun my client held in the social media photos.

His conclusion was definitive: the gun in the photographs was not the same model as the murder weapon.

Although both firearms appeared similar at first glance, they were manufactured by different companies or represented different product lines. The distinguishing features that the expert identified made clear that my client’s social media photos depicted an entirely different weapon than the one used in the killing.

What Firearms Experts Look For When Identifying Weapons

The Legal Argument: No Nexus, No Admission

Armed with the expert’s findings, I filed a motion to exclude the social media photographs. The argument was straightforward: without a nexus between the gun in the photos and the murder weapon, the photographs lacked relevance to the charged offense.

Moreover, the prejudicial effect of the photographs far outweighed any probative value. Showing the jury images of a young defendant holding a gun—when that gun had nothing to do with the crime—would serve only to inflame the jury and create an unfair association in their minds.

The expert’s identification of the precise firearm model made this argument airtight. Because he could demonstrate that the social media gun was definitively not the murder weapon, the prosecution could not establish the required nexus.

Why Excluding This Evidence Mattered

The exclusion of the social media photographs removed a powerful piece of visual evidence from the prosecution’s case. Without those images, the jury could not form the mental association the state wanted: seeing the defendant with a gun and connecting him to the shooting.

Consequently, the jury had to evaluate the remaining evidence on its own merits. While they convicted my client of a lesser offense, they acquitted him of the homicide charge—a significant difference in terms of potential punishment and consequences.

This outcome demonstrates the importance of challenging every piece of evidence the prosecution intends to use. Evidence that appears damaging at first glance may not withstand expert scrutiny.

What This Case Teaches About Firearms Evidence

• First, similar does not mean same. Two firearms may look alike to untrained observers but represent completely different makes and models. An expert can identify the differences.
• Second, the prosecution must establish a nexus. For evidence to be admissible, it must connect to the charged offense. A photograph of the defendant with a different gun lacks that connection.
• Third, expert qualifications matter enormously. An expert who has toured firearms factories worldwide and spent a career handling weapons brings credibility that generalists cannot match.
• Fourth, challenge prejudicial evidence aggressively. Photographs of defendants with weapons create powerful negative associations. If the evidence lacks relevance, fight to keep it out.
• Finally, social media evidence requires scrutiny. Prosecutors increasingly use social media photographs against defendants. However, such evidence must still meet admissibility standards.

Frequently Asked Questions

Can prosecutors use social media photos against me?

Prosecutors can attempt to use social media photographs, but such evidence must meet admissibility requirements. Specifically, the photos must be relevant to the charged offense, and the prosecution must authenticate them. Additionally, if a photo’s prejudicial effect outweighs its probative value, the defense can move to exclude it.

What does nexus mean in evidence law?

Nexus refers to the connection between a piece of evidence and the facts at issue in a case. For evidence to be relevant and admissible, it must have a logical connection to something the prosecution needs to prove. Without that connection, the evidence lacks relevance.

What does a firearms expert do?

A firearms expert identifies weapons, analyzes ballistic evidence, and provides expert testimony about firearms-related issues. They can determine whether a specific weapon fired particular ammunition, identify the make and model of firearms from photographs, and explain technical aspects of weapons to judges and juries.

How can an expert identify a gun from a photograph?

Experienced firearms experts recognize distinguishing features that identify specific makes and models: slide shapes, grip configurations, control placements, trigger guard designs, and sight configurations. By analyzing these visible features, an expert can often determine the precise firearm depicted—even from a photograph.

What makes firearms evidence prejudicial?

Photographs of defendants holding weapons create powerful negative impressions on juries. Even when the pictured weapon has no connection to the charged crime, such images can make defendants appear dangerous or violent. Consequently, courts may exclude such evidence when its prejudicial effect substantially outweighs any probative value.

Should I delete gun photos from my social media?

If you face criminal charges, do not delete anything from social media without consulting your attorney first. Deleting evidence after charges can constitute obstruction of justice or spoliation of evidence. Instead, discuss your social media presence with your attorney, who can advise you on the best course of action.

Facing Gun-Related Charges?

Prosecutors use every piece of evidence they can find—including social media photographs that may have nothing to do with the charged offense. However, such evidence must meet legal standards for relevance and admissibility.

For over 25 years, I have defended clients against serious charges throughout Tampa Bay. As a result, I know how to challenge firearms evidence, retain qualified experts who can identify weapons and break the prosecution’s nexus arguments, and fight to exclude prejudicial photographs from trial.

Call (813) 727-7159 for a Confidential Consultation

The Brancato Law Firm, P.A.

620 E Twiggs Street, Suite 205, Tampa, FL 33602

Serving Hillsborough, Pinellas, and Pasco Counties

Part of the Forensic Evidence Series

Related Case Studies: DNA Evidence Defense | Aggravated Child Abuse Defense | Forensic Pathologist | Fingerprint Evidence is Not as Reliable as You Think | Cell Phone Location Data Can prove You Were Not There | When Brain Damage Explains Criminal Conduct | Your BAC at the Station is Not Your BAC Behind the Wheel | When Police Destroy Evidence They Do Not Get the Benefit of the Doubt | When a Confession is Not a Confession | When the Car–Not the Driver–Caused the Crash | The Injuries Were Real–But They Were Not From the Alleged Rape

Related Pages

Tampa Murder Attorney

Tampa Gun Crimes Attorney

Social Media Evidence in Tampa Criminal Cases

Why Expert Witnesses are Not Optional in Major Crimes Case

Florida’s gun laws have changed. On September 10, 2025, the First District Court of Appeal in McDaniels v. State, 1D2023-0533 (Fla. 1st DCA 2025), struck down Florida’s decades-old ban on openly carrying firearms. The Attorney General has declined to appeal, which means the ruling stands: open carry is now legal in Florida.

However, this does not mean you can carry a firearm everywhere. Significant restrictions remain under Florida Statute 790.06(12) and federal law. Understanding where you can and cannot carry is essential to avoiding arrest.

At The Brancato Law Firm, our goal is not to take sides on whether this change is good or bad. Our focus is on making sure you understand the law as it now stands—and to remind you that if you are arrested under Florida’s gun laws, your rights deserve a strong defense. We are your Tampa Gun Crimes Law Firm.

What the Court Decided in McDaniels v. State

The First District Court of Appeal struck down Florida’s open carry ban, finding it violated the Second Amendment. The court’s reasoning:

• The Constitution protects both open and concealed carry
• History shows open carry was the traditional and accepted way of bearing arms
• Florida’s blanket ban went too far by prohibiting it altogether

This decision was guided by the U.S. Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen, which established that gun regulations must be consistent with the nation’s historical tradition of firearm regulation.

What Was the Old Florida Open Carry Law?

Since 1987, Florida law made it a crime to openly carry a firearm in public. Violations could result in up to 60 days in jail and fines. The only exceptions were narrow—such as while hunting, fishing, or camping, or while traveling to and from those activities.

That law is now unconstitutional. Floridians may openly carry firearms in public, subject to the location restrictions that still apply.

Where You Still Cannot Carry a Firearm

Open carry is now legal, but location restrictions remain in full effect. Under Florida Statute 790.06(12) and federal law, carrying a firearm in any of the following locations can still lead to arrest:

Private Property Rules

Private business owners can set their own rules regarding firearms. If a business posts “No Firearms” signs or asks you to leave, you must comply. Refusing to leave after being asked can result in trespass charges—even if you are otherwise carrying legally.

Who Still Cannot Carry a Firearm

The McDaniels ruling changed how you can carry, not who can carry. The following individuals remain prohibited from possessing firearms under Florida and federal law:

• Convicted felons (F.S. 790.23)
• Individuals under 21 years of age
• Chronic or unlawful users of controlled substances
• Individuals subject to domestic violence injunctions (F.S. 790.233)
• Individuals adjudicated mentally defective or Baker Act committed
• Individuals subject to active Risk Protection Orders (F.S. 790.401)

Frequently Asked Questions

Is open carry now legal in Florida?

Yes. Following the McDaniels v. State ruling and the Attorney General’s decision not to appeal, open carry is now legal in Florida. However, location restrictions under F.S. 790.06(12) still apply.

Can I carry in a bar or nightclub?

No. Firearms remain prohibited in any portion of a business licensed to serve alcohol for on-site consumption.

Can I carry at schools or school events?

No. You cannot carry at elementary, middle, or high schools, their administration buildings, or school sporting events. Colleges and universities are also off-limits.

Can I carry at a courthouse or government meeting?

No. Courthouses, courtrooms, polling places, and government board meetings remain prohibited locations.

What about airports?

You cannot carry inside passenger terminals beyond TSA security checkpoints. Firearms must be properly checked if you are flying.

What if I accidentally walk into a prohibited location?

Ignorance of the law is not a defense. You could still face arrest. Always know where you can and cannot carry before doing so.

What if a private business does not allow firearms?

Private business owners can prohibit firearms on their property. If asked to leave, you must comply or risk trespass charges.

Arrested for a Gun Offense in Tampa?

If you or someone you care about has been arrested under Florida’s gun laws—whether for open carry, concealed carry, or another firearm-related offense—you have rights worth fighting for.

At The Brancato Law Firm, attorney Rocky Brancato brings over 25 years of trial experience to every case. We do not take a position on whether gun laws are “right” or “wrong.” Our job is to stand with you in court and fight back if your constitutional rights have been violated.

Call (813) 727-7159 for a Confidential Consultation

The Brancato Law Firm, P.A.

620 E Twiggs Street, Suite 205, Tampa, FL 33602

Serving Hillsborough, Pinellas, and Pasco Counties

Florida’s permitless carry law, effective July 1, 2023, has created confusion for many residents regarding where they can and cannot legally bring a firearm. For Tampa Bay Buccaneers fans heading to Raymond James Stadium, this confusion can unfortunately lead to significant legal trouble. The crucial reality is this: even if you can legally carry a gun elsewhere in Florida, bringing it to or even near the stadium for a Bucs game can still result in your arrest.

Here’s what every Bucs fan needs to know before game day in Tampa.

Florida’s Permitless Carry Law Isn’t a “Carry Anywhere” Pass

While Florida now allows most adults to carry a concealed firearm without a specific permit, this law does not grant permission to carry a firearm everywhere. Long-standing restrictions remain firmly in place, and one is exceptionally clear regarding sporting events:

You cannot lawfully carry a firearm into a professional athletic event in Florida. This prohibition explicitly includes:

• NFL stadiums like Raymond James Stadium, home of the Tampa Bay Buccaneers.
• The parking lots and designated tailgating areas associated with the venue.
• All secured and ticketed sections within the stadium grounds.

Violating this rule can lead to serious felony charges, even if you had no malicious intent and were simply unaware of the specific restrictions for Raymond James Stadium.

What About the Raymond James Stadium Parking Lot or Tailgating Area?

Many Tampa Bay Buccaneers fans mistakenly believe that as long as they don’t bring a weapon inside the actual stadium building, they are compliant with the law. However, Raymond James Stadium is a designated gun-free zone. This important designation often extends to surrounding areas owned or operated in connection with the event, including parking and tailgating zones.

In practical terms for a Bucs game day, this means:

• Even keeping a firearm securely locked in your car on Raymond James Stadium property during a game can be legally risky.
• Security personnel and law enforcement officers routinely patrol tailgating areas around the Tampa stadium.
• The situation becomes even more complex if alcohol is involved.

Furthermore, Florida law (F.S. § 790.151) prohibits being in possession of a firearm while under the influence of alcohol or controlled substances, regardless of whether you ever physically touch the weapon during that time.

The Dangerous Mix: Alcohol, Firearms, and the Tampa Bay Buccaneers

Tailgating is a cherished part of the Tampa Bay Buccaneers game-day experience. However, if you are carrying a firearm—even if you believe you are doing so legally—and you are consuming alcohol, you may be violating several Florida Statutes, including:

• F.S. § 790.151: Possession of a firearm while under the influence.
• F.S. § 790.06(12): Restrictions on carrying in specific locations (like professional sporting events).
• F.S. § 856.011: Disorderly intoxication, which can be charged alongside any firearm violations.

These laws are strictly enforced around Raymond James Stadium.

“I Forgot the Gun Was in My Car!” – What Happens at a Tampa Bucs Game?

This scenario occurs more often than people realize. However, claiming unintentional possession is not always a valid defense in Florida. Once law enforcement discovers a firearm in a prohibited area like Raymond James Stadium property, the situation can escalate rapidly. This is especially true if you are impaired, become argumentative, or are simply unaware of the strict firearm restrictions.

If you find yourself in this situation at a Bucs game, it’s critical to:

• Stay calm and composed.
• Say nothing to law enforcement beyond identifying yourself.
• Immediately and clearly state that you wish to speak with an attorney.

Beyond Firearms: Other Common Arrests at Tampa Bay Buccaneers Games

Firearms aren’t the only source of legal trouble at Bucs games. Every season, arrests occur at Raymond James Stadium for various offenses, including:

• Disorderly conduct
• Resisting an officer without violence
• Battery or assault (often in the stands or parking lots)
• Trespassing (especially after being warned or ejected)
• Open container violations and underage drinking

While these may seem like minor offenses, they can carry serious consequences in Florida. These can include jail time, probation, fines, and even restrictions that prevent you from attending future Tampa Bay Buccaneers games or other events at Raymond James Stadium.

If Your Tampa Bay Buccaneers Game Day Didn’t Go As Planned – The Brancato Law Firm, P.A. Can Help

At The Brancato Law Firm, P.A., we understand how a simple mistake or misunderstanding can quickly turn into a criminal charge—especially in the high-energy, heavily policed environment of a Tampa Bay Buccaneers game at Raymond James Stadium. Whether you’re facing a firearms violation, a charge of resisting arrest, or an incident related to tailgating or public intoxication in Tampa, our primary goal is to protect your record, your rights, and your future.

Attorney Rocky Brancato brings over 25 years of courtroom experience to every case. His expertise includes defending clients against charges involving concealed weapons, DUI, and violent offenses throughout the Tampa Bay area. His investigative insight and skilled legal negotiation often make the critical difference between a conviction and a more favorable outcome, such as a dismissal or reduced charges.

Located in Ybor City, Tampa. Proudly serving Hillsborough, Pinellas, and Polk Counties.

Call (813) 727-7159 for a confidential consultation to discuss your case.