A felony conviction has serious consequences. It remains on
your criminal record permanently, making jobs and housing extremely difficult
to obtain. Aside from incarceration, probation, fines, counseling, and other
conditions the sentencing judge may impose, a felony conviction also strips
away certain constitutional rights. One of these rights is the right to possess
a firearm. In enacting the below statute prohibiting the possession of a
firearm by a convicted felon, the General Assembly has sought to keep guns out
of the hands of those individuals who by their prior conduct have demonstrated
they may not possess a firearm without being a threat to society. This article
will explain the three key components of the criminal offense, the punishment,
and defenses.

The Offense

It is illegal for any person who has been convicted of a felony to possess a firearm. O.C.G.A.
§ 16-11-131
.

Felony convictions
include: any person who is on felony first offender probation, felony
conditional discharge probation, or has been convicted of a felony in Georgia
or any other state (also includes U.S. territories and courts of foreign
nations).

A “firearm,”
includes any handgun, rifle, shotgun, or other weapon which will or can be
converted to expel a projectile by the action of an explosive or electrical
charge. Therefore, toys or non-functioning replicas do not qualify as weapons.
However, it is important to note that even disassembled firearms or even
projectiles by themselves constitute “firearms” under the statute.

To prove possession,
the prosecution must establish has two requirements, a culpable mental state
and the act of possessing a firearm. First, the prosecution must establish the
person knowingly possessed  a firearm. Knowledge can be proven through
direct evidence (person’s statement admitting possession) or through
circumstantial evidence (firearm found on person’s bed side table and nobody
else had access to the house). Possession can be further broken down into two
categories, actual and constructive possession. Actual possession is what it
sounds like. If you have a firearm in your hand (or holster, or in your
waistband), you are in actual possession of a firearm. Constructive possession,
however, is a situation where you have control or dominion over property
without being in actual possession of it. For example, imagine you are seated
in the front passenger seat of a vehicle along with the driver. The vehicle is
pulled over, searched by police, and illegal drugs are found in the center
console. Although neither you nor the driver was in actual possession of the
drugs, you are both arguably in constructive possession of the drugs because of
your mutual ability to access and control of the drugs.

Punishment

A person convicted of possession of a firearm by a convicted
felon shall be sentenced to no less than one year and no more than ten years.
If this is a second or subsequent conviction, the person shall be sentenced to
prison for no less than five and no more than ten years. If the underlying
felony was a “forcible felony” the person shall be sentenced to five years
imprisonment. A forcible felony is defined as, “any felony involving the use or
threat of physical force or violence against any person . . .”

Defenses

There are several defenses available to a person charged
with this offense. One is to challenge the underlying conviction. If the
conviction is not a felony or was a felony but was discharged under the First
Offender Act or conditional discharge sentence, then there is no underlying
felony. This offense also does not apply to those who have been convicted but
had their convictions
pardoned by the state
.

The next available defense is to challenge the required
mental state; that the person was “knowingly” in possession of a firearm. You
cannot be in possession of something that you have no knowledge of.

The defense may also challenge whether the person was in
constructive possession. In Harvey v. State, the court found
insufficient evidence the defendant was in constructive possession of a firearm
(by a convicted felon) even though defendant’s name appeared on documents in
closet of apartment where firearm was found; the gun was found on the floor
next to an unidentified individual, defendant’s name was not on the lease, and
defendant had no belongings inside the apartment. 344 Ga.App. 7 (2017).

Contact Us

If you or someone you know has been arrested, contact
the law firm of W. Scott Smith at 404.581.0999
 today for a free
case evaluation
. You’ll find a local Atlanta attorney ready to aggressively
fight on your behalf. You can also find out more detailed information
about Atlanta laws here.