We’ve all heard the phrase, “convicted felon in possession of a firearm.” But what does it really mean? Who is a “convicted felon” and what is “possession”? What happens if I am convicted?
Convicted Felon
A convicted felon is, as the name suggests, anyone who has been convicted of a felony. But what is a felony? According to La. R.S. 14:95.1, a “felony” is any crime of violence as delineated in La. R.S. 14:2(B), as well as:
simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes…
La. R.S. 14:95.1.
Thus, if you have been convicted of any of the aforementioned crimes, you are in jeopardy of becoming a convicted felon in possession of a firearm.
What if my conviction was from a long time ago?
To answer this question, we must look not at the date of the prior conviction but, rather, at the date that the sentence for that prior conviction was completed, including any period of parole or probation. If the sentence was completed within the 10-year period preceding the arrest involving a firearm, then the charge of felon in possession may be asserted. If more than 10 years have passed since the prior felony conviction, then the charge may not be asserted. Here is an example:
Defendant was arrested and convicted of a felony on September 1, 2000. He was sentenced to five (5) years in prison followed by five (5) years of probation and finished serving his sentence on September 1, 2010.
If the defendant is found to be in possession of a firearm prior to September 1, 2020, then he may be arrested and charged with being a felon in possession of a firearm because 10 years have not passed since he completed his sentence for the 2000 conviction.
If the defendant is found to be in possession of a firearm after September 1, 2020, then the charge of being a felon in possession of a firearm is not applicable because more than 10 years have elapsed since the 2000 conviction.
La. R.S. 14:95 (C).
What does the State have to prove in order to convict me of being a felon in possession of a firearm?
To support a conviction under La. Rev. Stat. Ann. § 14:95.1, the State must prove beyond a reasonable doubt that defendant had:
Possession of a firearm,
A prior conviction for an enumerated felony,
Absence of the ten-year statutory period of limitation, and
The general intent to commit the offense.
La. R.S. 14:95(D).
Do I have to have the firearm in my hand in order to be in “possession” of it?
No, you do not have to have the gun in your hand or on your person to be legally deemed in possession of it. The law recognizes the concept of “constructive” possession, which means that the gun is in the convicted felon’s “dominion or control”. Here of some examples of constructive possession:
State v. Kelly, 19-425 (La. App. 5 Cir. 07/31/20); 299 So. 3d 1284 -Defendant was a “person of interest” in an investigation. When confronted by law enforcement, he was arrested on outstanding traffic citations. While defendant was outside of his vehicle, officers saw a firearm and marijuana in the rear, center console of his truck. It is presumed that the sole occupant of a vehicle has dominion and control over the contents of the vehicle, regardless of the ownership of the vehicle. State v. Burbank, 07-125 (La. App. 5 Cir. 10/30/07), 971 So.2d 1173, 1177, writ denied, 07-2287 (La. 4/25/08), 978 So.2d 364. Guilty knowledge may be inferred from the circumstances and proved by direct or circumstantial evidence. Jones, 33 So.3d at 314. The State must prove that the offender was aware that a firearm was in his presence and that the offender had the general intent to possess the weapon.
Kelly at 1288-1289.
The Kelly court held that, despite the only access to the weapon being
in the back seat and defendant not being the registered owner of the gun,
the state had proved that Kelly was in constructive possession because “it
was found within the cab of a truck that he owned, exclusively used, and
was driving alone when arrested.” Kelly at 1289.
The Kelly opinion also offered two (2) other scenarios which offer
examples of how constructive possession can be proven.
In State v. Dotie, 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 09-310 (La. 11/6/09), 21 So.3d 297, the appellate court rejected the defendant's argument that his mere presence in the vehicle where the gun was found did not constitute constructive possession, noting that the defendant had been evasive when stopped and that he drove the vehicle most of the time. The latter fact, according to the court, allowed a rational juror to find that he exercised full dominion and control over the car. Cited by Kelly at 1289.
In State v. Washington, 11-716 (La. App. 5 Cir. 3/13/12), 90 So.3d 1157, 1162-63, the defendant was found to be in constructive possession of a firearm because (1) he was the registered owner of the vehicle in which the weapon was found, (2) the keys were in his possession, (3) the defendant was seen accessing the vehicle immediately prior to the weapon being located. Cited by Kelly at 1289.
If I am convicted of being a felon in possession of a firearm, what kind of sentence am I looking at?
A conviction for being a felon in possession of a firearm carries a sentence of a minimum of five (5) years and a maximum of 25 years without the benefit of probation, parole, or suspension in addition to a fine of at least $1,000 but not more than $5,000. La.R.S. 14:95.1(B).
What should I do if I am a convicted felon and near a firearm?
If you are a convicted felon and find yourself in close proximity to a firearm, you should immediately remove yourself from that situation. In the event you are arrested and charged with being a convicted felon in possession of a firearm, please call the Law Office of Gaynell Williams, LLC at 504-302-2462. We can help you assert your best defenses to this charge.
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Gaynell Williams LLC Attorney at Law offers a free initial consultation to discuss your case. The first consultation can be in person or it can be virtual, on the Internet. Call Gaynell Williams today at (504) 302-2462 for a free consultation as soon as possible. We will work around your schedule. New Orleans lawyers Gaynell Williams LLC Attorney at Law have offices in Gretna and Downtown New Orleans by appointment only.
This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under Louisiana law and the applicable state or local laws that may impose additional obligations on you.