The Constitutional Carry Trap: How Florida's 2023 Amendment Created New Criminal Exposure for Adjudication-Withheld Defendants
By Jonathan Blecher, Esq.
Florida’s 2023 “constitutional carry” amendment, widely understood to have expanded firearms rights, quietly created new felony exposure for adjudication-withheld defendants by converting administrative licensing criteria into substantive elements of a criminal offense. The Florida Supreme Court unanimously held in Clarke v. United States, 184 So.3d 1107 (Fla. 2016), that these defendants are not convicted felons and that the felon-in-possession statute does not reach them. But the 2023 amendment opened a second, independent criminal pathway through a statute that no one told them about. Under New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), the state bears the burden of demonstrating a historical tradition justifying any firearms regulation. There is no founding-era or Reconstruction-era analogue for disarming people whom the judiciary has affirmatively determined are not dangerous and are not likely to reoffend. The 2023 amendment created a novel firearms disability that attaches not to conviction, but to the shadow of a conviction that a court chose not to enter. That framework may not survive constitutional scrutiny.
In the case that prompted this article, a court ordered the defendant’s firearms returned, and months later the state charged him with a felony for carrying one. He thought he was legal. No one told him that lawful possession and lawful concealed carry had become two different things, or that the licensing criteria in § 790.06(2)(k) now functioned as elements of a criminal offense he had never heard of. This article maps the statutory trap, identifies the available defenses including an untested vehicle exception and a constitutional challenge under Bruen, and argues that the framework may lack the historical pedigree the Second Amendment requires.
This article was motivated by a particular case brought to my attention involving a Florida defendant with a prior felony for which adjudication was withheld, who was picked up on a firearms charge. The legal questions it raised led me through a statutory scheme of remarkable complexity, where four interlocking provisions of Chapter 790 produce outcomes that no single section, read in isolation, would suggest. I am philosophically interested in preserving firearms rights, including for this class of defendants (individuals whom a Florida judge has already determined are not dangerous and are not likely to reoffend), and this article is written in that spirit.
Nothing here constitutes legal advice. What follows is statutory analysis and commentary on published authorities.
I. Adjudication Withheld: What It Means and Why It Matters
Florida law permits a trial court, upon finding a defendant guilty by plea or verdict, to withhold the formal adjudication of guilt. The governing provision is Section 948.01(2), Florida Statutes, which provides:
If it appears to the court upon a hearing of the matter that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law, the court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt. In either case, the court shall stay and withhold the imposition of sentence upon the defendant and shall place a felony defendant upon probation.1
This is effectively an affirmative judicial finding on two predicates: that the defendant is unlikely to reoffend, and that the interests of justice do not require the full penalty of law. The Florida Supreme Court has recognized that the purpose of withholding adjudication “is rehabilitation of one who has committed the crime charged without formally and judicially branding the individual as a convicted criminal and without the loss of civil rights and other damning consequences.”2
The distinction between adjudication of guilt and adjudication withheld ramifies across Florida’s statutory landscape. Some statutes expressly include withheld adjudications within the definition of “conviction” for their purposes; others do not.3 Where the statute is silent, Florida courts have recognized that “conviction” is a “chameleon-like term that has drawn its meaning from the particular statutory context in which the term is used.”4
II. Clarke v. United States: The Florida Supreme Court Settles § 790.23
Section 790.23(1)(a), Florida’s felon-in-possession statute, makes it “unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device . . . if that person has been . . . [c]onvicted of a felony in the courts of this state.”5
The operative word is “convicted.” For years, the Eleventh Circuit treated a guilty plea with adjudication withheld as a “conviction” under this statute, relying on its decisions in United States v. Orellanes6 and United States v. Grinkiewicz.7 But the Eleventh Circuit itself expressed increasing doubt about this position, noting in United States v. Chubbuck that “[i]t has become increasingly clear that perhaps our interpretation of Florida law was either in error or has since changed.”8
The question was finally certified to the Florida Supreme Court in United States v. Clarke9:
Florida law prohibits a person from “own[ing] or . . . hav[ing] in his or her care, custody, possession, or control any firearm . . . if that person has been . . . [c]onvicted of a felony in the courts of [Florida].” Fla. Stat. § 790.23(1). For purposes of that statute, does a guilty plea for a felony for which adjudication was withheld qualify as a “convict[ion]”?10
The Florida Supreme Court answered unanimously, 7-0, in the negative.11
The Court’s analysis was purposive. It examined the intent behind Section 790.23 and concluded that the statute is “intended to keep firearms out of the hands of persons who are dangerous or who might reoffend” and that “that purpose is not served where the trial court has explicitly determined that the defendant is not a danger and is not likely to reoffend—thus withholding adjudication under section 948.01 as was done in this case.”12
The Court further observed that “[t]he text of section 790.23(1)(a) does not state that the statute applies notwithstanding the fact that adjudication was withheld,” contrasting it with other Florida statutes that expressly include withheld adjudications within their definitions of conviction.13
On remand, the Eleventh Circuit applied the Florida Supreme Court’s answer and vacated the federal felon-in-possession conviction under 18 U.S.C. § 922(g)(1), since that statute determines what constitutes a “conviction” under the law of the jurisdiction where the proceedings were held.14 The court recognized that “Florida’s highest court has plainly told us that our interpretation of Florida law in Orellanes and Grinkiewicz was wrong” and that “our prior precedent rule must give way to the direction we’ve received from Florida’s highest court.” The court vacated Jenkins’s § 922(g)(1) conviction for being a felon in possession of a firearm and remanded for resentencing. The vacatur followed from 18 U.S.C. § 921(a)(20), which provides that what constitutes a “conviction” for purposes of the federal felon-in-possession statute “shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.”15
An adjudication-withheld defendant is not a “convicted felon” under § 790.23, and the felon-in-possession ban does not reach them. Clarke is strong, settled authority on that point.
III. The 2023 Constitutional Carry Amendment
On July 1, 2023, Florida’s “constitutional carry” law took effect.16 The popular understanding was straightforward: Floridians no longer need a concealed-carry license to carry a concealed firearm. The reality is more complicated, and for adjudication-withheld defendants, the amendment may have made things worse.
Before 2023, Section 790.01 was a simple licensing statute. Carrying a concealed firearm without a license was a crime. The eligibility criteria in Section 790.06(2) governed who could obtain the license; they were administrative gatekeeping provisions, not elements of a criminal offense.
The 2023 amendment added subsection (1)(b) to Section 790.01, creating a second path to lawful concealed carry:
A person is authorized to carry a concealed weapon or concealed firearm . . . if he or she . . . [i]s not licensed under s. 790.06, but otherwise satisfies the criteria for receiving and maintaining such a license under s. 790.06(2)(a)-(f) and (i)-(n), (3), and (10).17
Read subsections (1) through (4) together, and the structural change becomes clear.
Subsection (1) defines who is “authorized” to carry concealed: either (a) hold the license, or (b) satisfy the eligibility criteria without one. Subsection (3) defines the crime: carrying a concealed firearm while failing to meet the criteria in subsection (1) is a felony of the third degree.18 Subsection (4) places the burden on the state, which must prove “as an element of the offense, both that a person is not licensed under s. 790.06 and that he or she is ineligible to receive and maintain such a license under the criteria listed in s. 790.06(2)(a)-(f) and (i)-(n), (3), and (10).”19
The eligibility criteria cross-referenced by § 790.01(1)(b) include § 790.06(2)(i) through (n). Subsection (k) sits squarely within that range:
[The applicant h]as not had adjudication of guilt withheld or imposition of sentence suspended on any felony unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled, or expunction has occurred.20
This is the bridge. Before 2023, the (k) disqualification only stopped an applicant from obtaining the physical license card. It was an administrative barrier. After 2023, failing to satisfy (k) means a person is not “authorized” under § 790.01(1), which means carrying a concealed firearm triggers the third-degree felony under § 790.01(3).
The legislature effectively converted a licensing criterion into a substantive element of a criminal offense.
IV. The Irony
The irony deserves emphasis. Clarke established that an adjudication-withheld defendant is not a convicted felon, that § 790.23 does not prohibit their possession of firearms, and that the judiciary has already determined they are not dangerous. Yet the 2023 “constitutional carry” amendment created an independent criminal pathway, through § 790.01 via § 790.06(2)(k), that reaches this same population during the three-year post-probation window.
Under the pre-2023 regime, an adjudication-withheld defendant who possessed a firearm was in a relatively clear position: § 790.23 did not reach them under Clarke, and § 790.01 only asked whether they held a license, not whether they could get one. Now § 790.01 asks whether they could qualify for a license, and for anyone inside the three-year window, the answer is no.
“Constitutional carry” expanded rights for most Floridians. For this class of defendants, it expanded criminal exposure.
V. The Vehicle Exception: § 790.25(4)(a) and the “Notwithstanding” Override
There is a potential defense for cases arising from traffic stops, but it turns on facts and on a statutory argument that, to my knowledge, no Florida court has adopted in this precise posture.
Section 790.25(4)(a) provides:
Notwithstanding s. 790.01, a person 18 years of age or older who is in lawful possession of a handgun or other weapon may possess such a handgun or weapon within the interior of a private conveyance if the handgun or weapon is securely encased or otherwise not readily accessible for immediate use.21
“Securely encased” is a defined term. Section 790.001(15) provides that it means “in a glove compartment, whether or not locked; snapped in a holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access.”22
Two phrases in § 790.25(4)(a) are critical: “notwithstanding s. 790.01” and “in lawful possession.”
The “Notwithstanding” Argument
The phrase “notwithstanding s. 790.01” is an explicit statutory override. It means that § 790.25(4)(a) authorizes possession in a vehicle even when § 790.01 would otherwise prohibit the conduct. If § 790.01 unlawfulness could defeat § 790.25(4)(a), the “notwithstanding” clause would have nothing to override and would be rendered surplusage, a result disfavored under Florida canons of statutory construction.
The “Lawful Possession” Question
A prosecutor would likely argue that because § 790.01 makes the defendant’s concealed carry unlawful, they are not “in lawful possession” for purposes of § 790.25(4)(a), and the securely-encased exception does not apply. This argument has structural appeal: it collapses the distinction between the two provisions and treats § 790.01 unlawfulness as infecting the § 790.25(4)(a) analysis.
But this reading has a problem. It renders the “notwithstanding s. 790.01” language meaningless. The better reading is that “in lawful possession” asks whether the defendant is prohibited from possessing the firearm at all, under a possession-ban statute like § 790.23 or federal 18 U.S.C. § 922(g), rather than whether the defendant satisfies the § 790.01 carry-authorization framework.
Possession and carry are different legal concepts. Section 790.23 prohibits possession. Section 790.01 prohibits carrying concealed. Section 790.25(4)(a) explicitly overrides § 790.01 for the securely-encased-in-vehicle scenario and asks only whether the underlying possession is lawful.
Since Clarke holds that § 790.23 does not reach adjudication-withheld defendants, and the Eleventh Circuit applied that holding to vacate the federal § 922(g) conviction as well,14 no possession ban applies. The possession is lawful. The “notwithstanding” language handles the § 790.01 problem independently.
The Caveat
This is an argument for defense counsel to develop. I am not aware of a Florida court that has tested the § 790.25(4)(a) “notwithstanding” override in the specific context of an adjudication-withheld defendant carrying a securely encased firearm in a vehicle during the three-year § 790.06(2)(k) disqualification window. The textual argument is structurally sound, but it is untested, and a court could reach the opposite conclusion by reading “in lawful possession” more broadly than the possession/carry distinction I have drawn above.
VI. A Case Study: The Firearms Return Order Paradox
The statutory trap described in the preceding sections is not hypothetical. A case recently brought to my attention illustrates each of its features.
A Florida defendant had a prior felony for which adjudication was withheld. He was placed on probation. A court subsequently granted his motion to return all of his firearms, an affirmative judicial determination that he could lawfully possess them. This is consistent with Clarke: he was not a convicted felon under § 790.23, and no possession ban applied.
Months later, still inside the three-year post-probation window under § 790.06(2)(k), he was stopped during a traffic stop. He was carrying a concealed firearm on his person. He was charged under § 790.01.3, not § 790.23, exactly the constitutional carry pathway described above.
His own assessment of his situation was telling: he thought he was legal. A court had just told him he could have his firearms. No one told him that lawful possession and lawful concealed carry had become two different things under the 2023 amendment, or that the licensing criteria in § 790.06(2)(k) now functioned as elements of a criminal offense he had never heard of.
This case exposes several dimensions of the problem.
The notice problem. The interplay between § 790.23 (which does not apply under Clarke), § 790.01 (which does, via § 790.06(2)(k)), and § 790.25(4)(a) (which might override § 790.01 in certain fact patterns) is so labyrinthine that even widely circulated AI-generated legal analysis of the issue, which correctly identified the Clarke holding and the § 790.23 defense, entirely missed the § 790.01 pathway. If a sophisticated language model cannot identify the trap, the question of what notice a layperson has is a serious one. The statutory scheme may approach the due process concern animating the void-for-vagueness doctrine: that criminal statutes must provide fair warning of what conduct is prohibited.
The estoppel problem. The state, through one judicial officer, ordered this defendant’s firearms returned. The state, through another arm, then charged him with a felony for carrying one of those same firearms. A reasonable person who receives a court order returning his firearms would conclude he is legally entitled to have them, not that possessing them is lawful but carrying them concealed for the next three years is a felony. There is a potential due process or estoppel argument in the gap between what the state told this defendant and what the state is now charging him with.
The factual limitation on § 790.25(4)(a). The vehicle exception analyzed in Section V does not help this defendant: his firearm was on his person, not securely encased in the vehicle. The “notwithstanding s. 790.01” argument remains available for future defendants whose firearms are found in a glove compartment, holster, gun case, or closed container during a traffic stop. But where the firearm is carried concealed on the person inside a vehicle, § 790.25(4)(a) does not apply, and the defendant is squarely within the § 790.01(3) framework.
VII. The Bruen Challenge
There is a constitutional dimension to this problem that may ultimately prove more significant than any statutory argument.
In New York State Rifle & Pistol Association, Inc. v. Bruen, the United States Supreme Court held:
[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”23
The Bruen test is straightforward in application here. Carrying a handgun for self-defense is conduct covered by the Second Amendment’s plain text; the Bruen Court itself so held.24 The Constitution therefore presumptively protects that conduct. The burden shifts to the state to demonstrate that restricting concealed carry for adjudication-withheld defendants during the three-year § 790.06(2)(k) window is consistent with the nation’s historical tradition of firearm regulation.
That burden may be difficult to meet. Historically, firearms disabilities attached to convicted felons. The Florida Supreme Court has unanimously held that adjudication-withheld defendants are not convicted felons.11 The trial court that withheld adjudication affirmatively found that the defendant is “not likely again to engage in a criminal course of conduct.”1 There is no founding-era or Reconstruction-era analogue for restricting the right to bear arms based on a judicial proceeding that declined to convict. The 2023 amendment created a novel category of firearms disability, one that attaches not to conviction but to the shadow of a conviction that a court chose not to enter, and applies it through licensing-eligibility criteria that were never historically designed to function as elements of a criminal offense.
Consider the posture of the defendant in the case study: a judge found him not dangerous, the Florida Supreme Court unanimously held (via Clarke) that he, among other adjudication-withheld defendants are not convicted felons, a court ordered his guns returned, and now the state is charging him with a felony for carrying what he was told he could have, under a framework with no historical analogue. Under Bruen, the state bears the burden of identifying one.
The Bruen Court acknowledged that its test does not require a modern regulation to be a “dead ringer” for a historical precursor; it need only be “analogous enough to pass constitutional muster.”25 But even under this more forgiving standard, the state would need to identify a historical tradition of disarming people whom the judiciary has affirmatively determined are not dangerous. That tradition does not appear to exist.
This is an argument for defense counsel to develop, and it may ultimately require a court willing to apply Bruen to the specific intersection of Florida’s withholding-of-adjudication framework and the 2023 constitutional carry amendment. But the textual and historical foundations are there.
VIII. The Framework: Questions for Defense Counsel
For any attorney representing an adjudication-withheld defendant on a Florida firearms charge, the analysis turns on the following questions:
First, which statute is the defendant charged under? If § 790.23, Clarke is dispositive: adjudication withheld is not a conviction, the statute does not apply, and the charge fails on its predicate element. If § 790.01, the analysis is different and the remaining questions become critical.
Second, have three years elapsed since the defendant completed probation and all court-imposed conditions? If yes, the § 790.06(2)(k) disqualification has expired, the defendant satisfies the eligibility criteria, and § 790.01 cannot reach them. If the defendant is inside the window, the state has a clean path to proving ineligibility.
Third, was the carry concealed or open? Section 790.01 only criminalizes concealed carry by ineligible persons. If the firearm was openly carried (itself potentially problematic under § 790.053, but a different analysis), or possessed in the home or place of business under § 790.25(2)(n), the § 790.01 pathway does not apply.
Fourth, if the encounter occurred in a vehicle, where was the firearm and was it securely encased? If the firearm was in a glove compartment, snapped in a holster, or in a closed container, § 790.25(4)(a) may independently authorize the possession under the “notwithstanding s. 790.01” override, provided the defendant is in “lawful possession” of the firearm, which Clarke supports. If the firearm was loose under a seat, in a waistband, or otherwise not securely encased, this defense is unavailable.
Fifth, was there a prior court order returning the defendant’s firearms? If so, it creates both an estoppel argument and reinforces the Bruen challenge: the state has already judicially determined, consistent with Clarke, that the defendant may lawfully possess firearms. Charging the defendant for carrying one of those same firearms under the 2023 amendment’s novel eligibility framework sharpens the question of whether the regulatory burden is historically justified.
Sixth, is there an appetite for a constitutional challenge under Bruen? The argument that the § 790.06(2)(k) disqualification, as applied through § 790.01 to adjudication-withheld defendants, lacks a historical analogue is structurally sound but untested. It requires a defendant and counsel with the mettle to raise it, and a court willing to apply the Bruen framework to this intersection of Florida’s withholding-of-adjudication scheme and the 2023 constitutional carry amendment. But the textual and historical foundations are there.
IX. The Policy Dimension
The Clarke court did not reach its holding by accident. It examined the purpose of § 790.23, the legislative intent behind § 948.01, and the judicial determination that inheres in every withholding of adjudication. It concluded that a statute designed to keep firearms away from dangerous people should not apply to people whom the judiciary has already determined are not dangerous.
That reasoning has not changed. The 2023 amendment did not repeal Clarke, did not amend § 790.23, and did not disturb the judiciary’s role under § 948.01. What it did was create a second, independent statutory pathway that reaches the same population through the back door of licensing-eligibility criteria, criteria that were never designed to function as elements of a criminal offense.
The result is a statutory scheme that tells adjudication-withheld defendants, through Clarke, that they are not convicted felons and may lawfully possess firearms, while simultaneously telling them, through the 2023 amendment to § 790.01, that carrying those firearms concealed is a third-degree felony. A court may order their firearms returned one month and the state may charge them for carrying those firearms the next. The scheme provides no clear notice of this contradiction. Even sophisticated legal analysis tools have failed to identify it.
Whether this was an intended consequence of the 2023 amendment or an unintended one, the result is the same: a class of Floridians whom a judge has determined are not dangerous, and whom the Florida Supreme Court has unanimously held are not convicted felons, now face felony exposure for exercising a right that the same legislature purported to expand, under a framework that may lack the historical pedigree the Second Amendment requires.
That tension deserves attention, from the defense bar, from the legislature, and from the courts.
Endnotes
1 Fla. Stat. § 948.01(2) (2025).
2 Peters v. State, 984 So.2d 1227, 1231 (Fla. 2008) (quoting Bernhardt v. State, 288 So.2d 490, 495 (Fla. 1974)); see also Clarke v. United States, 184 So.3d 1107, 1117-18 (Fla. 2016) (citing same).
3 See, e.g., Fla. Stat. § 775.13(1) (defining “convicted” as a determination of guilt “regardless of whether adjudication is withheld” for felon registration purposes); Fla. Stat. § 775.084 (treating probation without adjudication as a prior conviction for habitual offender sentencing); Fla. Stat. § 943.0435(1)(b) (same for sex offender registration). Notably, § 790.23 contains no such language. Clarke, 184 So.3d at 1113-14.
4 State v. Keirn, 720 So.2d 1085, 1086 (Fla. 4th DCA 1998), approved sub nom. Raulerson v. State, 763 So.2d 285 (Fla. 2000); cited in Clarke, 184 So.3d at 1114.
5 Fla. Stat. § 790.23(1)(a) (2025).
6 United States v. Orellanes, 809 F.2d 1526, 1527 (11th Cir. 1987).
7 United States v. Grinkiewicz, 873 F.2d 253, 255 (11th Cir. 1989).
8 United States v. Chubbuck, 252 F.3d 1300, 1305 (11th Cir. 2001).
9 United States v. Clarke, 780 F.3d 1131, 1133 (11th Cir. 2015) (certifying question to the Florida Supreme Court).
10 Clarke v. United States, 184 So.3d 1107, 1108 (Fla. 2016) (quoting the certified question).
11 Id. (Labarga, C.J., with Pariente, Lewis, Quince, Canady, Polston, and Perry, JJ., concurring).
12 Id. at 1118.
13 Id.
14 United States v. Clarke, 822 F.3d 1213, 1214-15 (11th Cir. 2016) (vacating § 922(g)(1) conviction on the basis of the Florida Supreme Court’s answer to the certified question).
15 18 U.S.C. § 921(a)(20) (2025).
16 Ch. 2023-18, Laws of Florida (effective July 1, 2023).
17 Fla. Stat. § 790.01(1)(b) (2025).
18 Fla. Stat. § 790.01(3) (2025).
19 Fla. Stat. § 790.01(4) (2025).
20 Fla. Stat. § 790.06(2)(k) (2025).
21 Fla. Stat. § 790.25(4)(a) (2025).
22 Fla. Stat. § 790.001(15) (2025).
23 N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 17 (2022).
24 Id. at 23-24 (”The Court has little difficulty concluding also that the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense.”).
25 Id. at 30.