Defending Possession Of Firearm Cases In Cobb County And In The Atlanta-Metropolitan Area
The Offense
Elements Of The Crime
The official title of this offense under Georgia law is Possession of Firearms By Convicted Felons and First Offender Probationers. The applicable sections of Georgia Code 16-11-131 provide that:
(a) As used in this Code section, the term:
(1) “Felony” means any offense punishable by imprisonment for a term of one year or more and includes conviction by a court-martial under the Uniform Code of Military Justice for an offense which would constitute a felony under the laws of the United States.
(2) “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.
(b) Any person who is on probation as a felony first offender pursuant to Article 3 of Chapter 8 of Title 42, who is on probation and was sentenced for a felony under subsection (a) or (c) of Code Section 16-13-2, or who has been convicted of a felony by a court of this state or any other state; by a court of the United States including its territories, possessions, and dominions; or by a court of any foreign nation and who receives, possesses, or transports any firearm commits a felony and, upon conviction thereof, shall be imprisoned for not less than one year nor more than ten years; provided, however, that upon a second or subsequent conviction, such person shall be imprisoned for not less than five nor more than ten years; provided, further, that if the felony for which the person is on probation or has been previously convicted is a forcible felony, then upon conviction of receiving, possessing, or transporting a firearm, such person shall be imprisoned for a period of five years.
(b.1) Any person who is prohibited by this Code section from possessing a firearm because of conviction of a forcible felony or because of being on probation as a first offender or under conditional discharge for a forcible felony and who attempts to purchase or obtain transfer of a firearm shall be guilty of a felony and upon conviction shall be punished by imprisonment for not less than one year nor more than five years; provided, however, that upon a second or subsequent conviction, such person shall be punished by imprisonment for not less than five nor more than ten years.
Analysis
All right-let's break all of that down. In the simplest of terms, if you are currently on probation for a felony offense or you have been convicted of a felony offense, you cannot receive, possess or transport any firearm. This applies even if you are on probation under the Conditional Discharge law or the First Offenders law.
Criminal Penalties
Non-Forcible Felony Offenses
The punishment schemes are different depending on if the felony you are on probation for or have been previously convicted of is a forcible felony. For those cases that do not involve a forcible felony, a violation of this offense is a felony, and upon a conviction, shall be imprisoned for not less than one year and not more than ten years. A second or subsequent conviction carries a sentence of not less than five nor more than ten years.
Forcible-Felony Offenses
If the person is on probation for a forcible felony or has been convicted of a forcible felony, and is convicted of receiving, possessing or transporting any firearm, such person shall be imprisoned for a period of five years.
In addition, people who are on probation for a forcible felony or have been convicted of a forcible felony may not attempt to purchase or obtain transfer of a firearm. If a person is convicted of doing this, he or she shall be punished by imprisonment for not less than one year nor more than five years. Upon a second or subsequent conviction, such person shall be punished by imprisonment for not less than five nor more than ten years.
What Does A "Forcible Felony" Mean?
Georgia law provides us with a definition of that term in Georgia Code 16-11-131(e). It states:
As used in this Code section, the term “forcible felony” means any felony which involves the use or threat of physical force or violence against any person and further includes, without limitation, murder; murder in the second degree; burglary in any degree; robbery; armed robbery; home invasion in any degree; kidnapping; hijacking of an aircraft or hijacking a motor vehicle in the first degree; aggravated stalking; rape; aggravated child molestation; aggravated sexual battery; arson in the first degree; the manufacturing, transporting, distribution, or possession of explosives with intent to kill, injure, or intimidate individuals or destroy a public building; terroristic threats; or acts of treason or insurrection.
How Can I Be Charged With This Crime If The Gun Was Not Found On Me?
As with any type of case, there may be certain factual and legal defenses available. The question of possession is but one of many possible defense that may be present. To prove possession, the State must prove two things: first, they must prove that a person knowingly intended to possess the item (intent); and second, that the person committed the act of possessing the item.
Actual vs. Constructive Possession
The issue of possession can be further broken down into two additional categories: actual possession and constructive possession. Actual possession means exactly what it sounds like. If the police find a firearm in a person's pocket, that person had actual possession of the firearm. Constructive possession is a bit more nuanced. It means you have control and dominion over an item without being in actual possession of it. For example, consider a scenario where a car is pulled over and a firearm is found in the center console, directly between the driver and the passenger. While neither are in actual possession of the firearm, both can arguably have constructive possession since both had access to the firearm in the center console.
I Was Sentenced Under The First Offenders Law Or The Conditional Discharge Law. How Can They Convict Me Of This Crime?
This is another common question I get from my clients. In the state of Georgia, there are basically two kinds of sentences that are unique in that if a defendant completes the sentence successfully, then the case is discharged and no conviction will be entered on that defendant's criminal record. They are known as 'Conditional Discharge,' as described in Georgia Code 16-13-2, and the 'First Offenders' sentence, as described in Georgia Code 42-8-60.
However, it is critical for people to remember that until you complete the sentence successfully, that case is still technically active. For people serving a felony sentence, they are still not permitted to receive, possess or transport any firearms as a condition of that sentence, and doing so will still expose them to this additional felony charge.
Now, on the other hand, if a person does successfully complete his sentence under Conditional Discharge or First Offenders, then the case will be discharged (dismissed), and no criminal conviction will be entered. All of that person's civil rights will remain intact, including, for example, the right to vote, and, of course, the right to possess firearms as enshrined in the Second Amendment of the U.S. Constitution.
As you can see, this charge can be very complicated to navigate through, and can also carry some very harsh criminal penalties. That is why you need to hire an experienced criminal defense attorney who is equipped to help you in this type of case.