In Miami and elsewhere in Florida, a felony conviction means the loss of civil rights. A convicted felon cannot vote, hold public office, serve on a jury or hold some occupational licenses. These rights are permanently taken away unless the convicted felon completes a clemency application process and has his or her civil rights restored. If you have been convicted of a felony, having a Miami criminal defense attorney advocate on your behalf during the clemency application process can be of crucial importance.
In a recent appellate decision, a Florida court considered a defendant’s appeal related to the restoration of rights. The defendant had pled no contest to possession of ammunition by a convicted felon and was appealing the denial of his motion to dismiss. He argued section 790.23(2)(a) unconstitutionally infringed on the executive branch’s authority to restore civil rights.
The case had arisen when the defendant was convicted of third-degree felony burglary of a structure. The Office of Executive Clemency restored his civil rights a year later. Restoration of rights excludes the authority to own or possess a firearm. Years later, the police searched his home based on a search warrant and found 12 rounds of live ammunition on his nightstand. The prosecutor charged him with a violation of 790.23(1)(a), possession of ammunition by a convicted felon.
The defendant filed a motion to dismiss the information. He argued that the implementation of this code section infringed on the executive branch’s powers. He claimed that in the restoration of rights he got the right to possess ammunition and all property and limitations served as a due process violation.
The appellate court determined this was not a meritorious argument. The lower court hadn’t erred in denying the motion. Under Florida Statute section 790.23, it’s unlawful for someone to own or keep in possession or control a firearm or to carry concealed weapons where the person was convicted of a felony in state courts. This code section doesn’t apply to someone who is convicted of a felony who has had both civil rights and firearm authority restored.
The governor can restore civil rights by executive order under Article IV, section 8 of Florida’s Constitution. This authority, which is discretionary, only belongs to the executive branch and the legislative or judicial branches should not infringe it. The executive branch’s discretionary authority is to grant a partial or full restoration of civil rights. Individuals aren’t constitutionally deprived if they receive only a partial restoration of civil rights.
The defendant argued that the restoration of rights allows him to possess anything other than a firearm, but any limit on what he could possess was a due process violation. The appellate court disagreed. It explained the governor only partially restored his rights; there was no restoration of his firearm authority. In fact, the law expressly prohibits felons from possessing ammunition if they haven’t been granted authority to possess a firearm. Ammunition is similar to contraband when it’s possessed by a convicted felon who’s only gotten his civil rights partially restored. He wasn’t given authority to possess a firearm, and under section 790.23, he was also prevented from possessing ammunition.
The court reasoned that the plain language of the law leads to the conclusion that there’s no usurpation of the executive branch’s authority regarding the restoration of rights. Section 790.23 works in connection with the executive branch’s sole authority to restore civil rights for a convicted felony. The court affirmed.
If you’re convicted of a crime and seek restoration of your civil rights, you should retain a skillful and knowledgeable Miami criminal defense attorney to represent you. Call The Hoffman Firm at (305) 928-1669, or contact us via our online form.