COMMON QUESTIONS ABOUT WEAPONS CHARGES IN GEORGIA
The two most common weapons charges in Georgia are:
1) Possession of a Firearm or Knife During the Commission of a Felony
2) Possession of a Firearm by a Convicted Felon
Each of these crimes is different from the other in how it is handled and how it is sentenced. The charges can be confusing. Below are some common questions about weapons charges in Georgia and the answers.
If I'm allowed to own a gun, why was I charged with possession of a gun during the commission of a felony?
Even if you are lawfully allowed to possess a gun, if you are arrested for allegedly committing (or just attempting to commit) a theft/burglary, a crime against a person like aggravated assault or stalking, or a drug charge, and the police find a gun in your possession during the arrest investigation, they can also charge you with possessing a firearm during the commission of a felony. This is a separate felony charge. While you may have a right to carry a gun in most circumstances, the law does not permit you to have a firearm or knife when committing a felony, and has created extra punishment if you are caught doing so.
What kinds of weapons are covered by this law? Just guns?
The "Possession of a weapon during the commission of a felony" law covers more than hand guns and long guns. It also includes tasers, stun guns, and knives with blades more than 3 inches long.
Does possession mean it has to be in my hand when I'm arrested?
No. For this law, possession means it has to be within arms reach or on your person during the commission of a felony in order for you to be charged. This is a tricky part of the law. Even if the weapon is within arms reach physically at the time you allegedly committed the felony, if the weapon is contained within something else like a zipped backpack or closed suitcase, you may have a defense to the charge. What "arms reach" really means depends on the facts of your case. Also, police sometimes make mistakes when charging people with this crime. I have handled several cases where the police added this charge when a gun was found with some drugs, but the guns and drugs were in an entirely different part of the house from where the person was seen and arrested. In those instances, I was able to get the gun charges dismissed entirely. The gun has to be within arms reach of the person at the time of commission not within arms reach of the drugs themselves. This is why it is so important to review the facts of your case carefully with a lawyer to discuss possible defenses to your case.
What is the punishment for Possession of a Weapon During the Commission of a Felony?
The punishment for this crime is very harsh. For the first offense, the punishment is five years, to be served consecutively to any other sentence. While the five years can be in custody, suspended, or served on probation, the five years are added on to the end of any other sentence. That is what consecutively means. So, if you received a 3 year prison sentence for a drug charge, and a 5 year prison sentence for the weapon possession, you would have to serve a total of 8 years. The gun charge sentence doesn't start until the other charges are already served out. The same would be true for probation. Also, this charge is not allowed to be reduced to a misdemeanor.
For a subsequent conviction of this offense, the law requires a 10 year sentence, and the sentence cannot be probation or a suspended sentence. That means if you are convicted under this law for the second time, you must served ten years in custody, plus it is still served consecutively to (after) any other sentence. If you have been previously convicted of a very serious offense (rape, armed robbery, home invasion, and some others) you could be sentenced to 15 years in prison for a weapons offense, and up to life in prison for your second or more weapons offense.
What is Possession of Weapon by a Convicted Felon?
If the police find that you are in possession of a weapon, and they confirm that you have previously been convicted of a felony, you can be charged with the crime of "Possession of a Weapon by a Convicted Felon" which is a felony all by itself. It does not require that you are committing a crime while having the weapon. The mere possession of the firearm if you are a convicted felon is enough to permit them to charge you. Even if the felony is from many years ago or in another state, if you have not had your gun rights restored, then they can charge you. The prosecution is required to obtain a certified copy of your prior conviction in order to prove your status as a felon.
What if I'm not the owner of the gun? Or it wasn't actually on me when the police stopped me?
The law does not require that you be the owner in order to be charged with possession of a weapon by a convicted felon. It only requires "possession", and that possession can be "actual possession" or "constructive possession." Actual possession means that it's on your person, or very close to you. Constructive possession means it can be farther away, but the facts may show that you were aware of the gun and could have some control over it. You may have a strong defense to your case depending on where the gun was found and in what circumstances. It's also important to examine whether you have a defense based on how and why the police interacted with you in first place. This is why it's extremely important to talk to a lawyer about your case as soon as possible.
Does it matter if I'm not a convicted felon but I'm on First Offender probation?
Yes. This same law also makes it unlawful for people on First Offender probation to possess a weapon. If you are charged with possessing a weapon while on First Offender probation, you are facing a new felony, plus the possibility of losing your first offender status and having your probation revoked. There can be serious consequences so it is essential you talk to an attorney immediately.
What is the punishment for Possession of a Weapon by a Convicted Felon?
If it is your first time being convicted of this crime, the punishment range is 1 to 10 years. The law allows it to be served in custody, on probation, or some combination of both. If it's a subsequent conviction for possessing a weapon by a convicted felon, the sentencing range is 5 to 10 years. If the original conviction is a forcible felony, the minimum sentence is 5 years.