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Florida Statute 790.01, Carrying a Concealed Firearm or Weapon

Definition and Elements of the Crime

It is not legal to carry a weapon in Florida without a license, and violations of this statue are extremely common. The crime of carrying a concealed weapon requires that the state prove the defendant had a weapon such as a knife, BB gun, brass knuckles, a baton or an electric weapon such as a stun gun on his or her person and it was concealed from public view. The stat must then also establish that the defendant did not have a license to carry said weapon. If the weapon was a firearm the state would have to prove that it was working and operable, which means that it is capable of firing a projectile. It is not required that the state prove the firearm was loaded, and or capable of being fired at the time of the arrest.


These cases usually arise after police officers search a suspect incident to an arrest. If a suspect is arrested for DUI, trespassing, disorderly conduct or assault he or she will then be subject to a full search. Any weapon found in pocket, handbag or holster will then be seized and used as evidence of an additional charge. Police may also perform a brief pat down frisk of any individual they detain for questioning. This search (also known as a Terry stop and frisk) is only for the purposes of protecting law enforcement, so legally they may only alert to larger objects that could be weapons. Guns and knives are easy for police to locate after a stop and frisk, and a lawful arrest may result if they find an illegal weapon.

Related Offenses

Possession of a firearm by a convicted felon under 790.23 is a common offense that often begins as a charge for carrying a concealed firearm. Once the police arrest a suspect for carrying a firearm, they will do a records check and additional charges will follow if the person has a felony or other disqualifying conviction. This includes juvenile delinquency findings for charges that are classified as felonies. Possession of a firearm by a convicted felon is a second-degree felony with a 15-year maximum penalty. The prohibition of possessing firearms does not only apply to convicted felons in Florida; possession of a firearm or ammunition by a person subject to an injunction for domestic violence or stalking under Florida statute 790.223 is a first-degree misdemeanor with a 1-year maximum jail sentence. Open carrying of a weapon under Florida statute 790.053 occurs when the defendant carries a weapon or firearm in a manner that is visible to the public. This is a much less common offense, as anyone who is carrying a weapon without a license will generally try to conceal said weapon. Open carrying of a weapon or firearm is a second-degree misdemeanor regardless of whether it was a firearm.


The most common defense to carrying a concealed weapon is that the weapon was carried by and individual solely for self-defense purposes. Stun guns and chemical sprays such as Mace are technically legal to carry in Florida, but that does not mean they can be used unless absolutely necessary. It is also a defense that the person was licensed to carry a weapon or firearm, but police will usually be able to verify this on the scene.


The maximum penalty for carrying a concealed weapon is 1 year in jail, and the case will be filed as a misdemeanor in County Court. Carrying a concealed firearm is a third-degree felony with a maximum sentence of 5 years in jail, and if the person is disqualified from possessing a gun then he or she could face second or even first-degree felony charges.

Florida gun Lawyer

Benjamin Herbst is a South Florida criminal defense lawyer who specializes in firearm and weapon charges. He has successfully represented dozens of clients who were charged with carrying a concealed firearm, carrying a concealed weapon and possession of a firearm by a convicted felon. He is standing by to fight for you. Call South Florida firearm possession lawyer Benjamin Herbst anytime for a free consultation at (954) 543-0305 and find out what defenses may be available in your case.

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