Florida Sentencing Enhancements (Pt 6 of 6)

This is Part 6 of the Florida Sentencing Enhancement Blog posts.  In Part 1 of the Florida Sentencing Enhancements blog, I discussed Prison Releasee Reoffender (PRR) enhancement.  I also reviewed the standard minimum and maximum sentences in Florida without these enhancements.  Part 2 discussed the Habitual Felony Offender (HFO) enhancement, and Part 3 discussed the Habitual Violent Felony Offender (HVFO) enhancement.  Part 4 reviewed the Violent Career Criminal (VCC) enhancement.  Part 5 discussed the Three-Time Violent Offender (“3 strikes, you’re out”) enhancement.  Today, on Part 6 (and the final part of the series), I will discuss the 10/20/Life enhancement.  Following is the description, qualifications, sentencing enhancement, gain time issues, and the pertinent part of the statute for your reference.  10/20/LifeDescriptionThis law was enacted by the legislature to require the courts to impose minimum mandatory sentences for crimes involving firearms, regardless of whether the use of a gun is an element to the crime itself, and regardless of whether the offender has ever been arrested previously or whether he has any prior convictions.QualificationsIf a firearm or destructive device is actually possessed any time during the course of the commission or attempt to commit an enumerated felony. The enumerated felonies are as follows:

• Murder;
• Sexual battery;
• Robbery;
• Burglary;
• Arson;
• Aggravated assault;
• Aggravated battery;
• Kidnapping;
• Escape;
• Aircraft piracy;
• Aggravated child abuse;
• Aggravated abuse of an elderly person or disabled adult;
• Unlawful throwing, placing, or discharging of a destructive device or bomb;
• Carjacking;
• Home-invasion robbery;
• Aggravated stalking;
• Trafficking in cannabis, trafficking in cocaine, capital importation of cocaine, trafficking in illegal drugs, capital importation of illegal drugs, trafficking in phencyclidine, capital importation of phencyclidine, trafficking in methaqualone, capital importation of methaqualone, trafficking in amphetamine, capital importation of amphetamine, trafficking in flunitrazepam, trafficking in gamma-hydroxybutyric acid (GHB), trafficking in 1,4-Butanediol, trafficking in Phenethylamines, or other violation of s. 893.135(1); or
• Possession of a firearm by a felon

Sentencing: The sentencing enhancement for this law is based on whether the firearm was possessed, discharged, or whether someone was injured or death resulted from the discharged weapon.  The minimum mandatory sentences are as follows:

• Firearm actually possessed during crime – 10 year minimum mandatory
  • (the crimes of burglary of a conveyance, aggravated assault, and possession of a firearm or destructive device by a felon are exempted from this enhancement (actual possession) only, and the 3-year minimum mandatory, not 10, still applies).
• Firearm or destructive device is discharged during crime – 20 year minimum mandatory
• Firearm or destructive device is discharged during the crime and causes death or great bodily harm – 25 year minimum mandatory

Although this enhancement creates no discretion for the Court on sentencing to the minimum mandatory sentence as outlined above, it does not prevent the Court from sentencing the offender to longer terms of incarceration, as authorized by law, including the death penalty.Gain Time An offender sentenced under this enhancement is NOT eligible for gain time with the Department of Corrections, as to the minimum mandatory sentence.  The offender also is not eligible for any other form of discretionary early release, other than a pardon, executive clemency, or conditional medical release, prior to serving the minimum mandatory sentence. Additional Issues Additional considerations for this enhancement:

1. Except where the firearm or destructive device is an essential element of the crime, their possession or use reclassifies the crime as follows:

• first degree felony to a life felony;
• second degree felony to a first degree felony;
• third degree felony to a second degree felony

1. An offender sentenced under this enhancement may not have adjudication withheld.  Therefore adjudication of guilt MUST be imposed.
2. Finally, the enhancement is to be imposed on all qualifying counts for the offender.  However, there is no requirement that the counts be sentenced consecutively to each other; therefore, the court does have discretion to sentence counts concurrently.  However, the Legislature does “encourage” the Court to sentence these counts consecutively to any other felony sentence, but this is not mandatory on the Court.
3. This enhancement does not alter the Court’s ability to impose a Youthful Offender status, if applicable.

Machine Guns FL. Stat 775.087(3) requires an enhancement when it comes to machine guns or semiautomatic forearms with high capacity detachable box magazines.When an offender possesses this type of weapon during the course of an enumerated felony (as listed above), the Court is required to impose a minimum mandatory sentence of 15 years imprisonment.If the weapon is discharged during commission of the crime, a minimum mandatory of 20 years is required. If, during the commission of the crime, the victim suffers great bodily harm or death, a minimum mandatory of 25-years must be imposed. Statute The relevant portion of the statutes applicable to this enhancement are below.Fl. Stat. 775.087(2) 775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.— (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:(a) In the case of a felony of the first degree, to a life felony.(b) In the case of a felony of the second degree, to a felony of the first degree.(c) In the case of a felony of the third degree, to a felony of the second degree. For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, a felony offense which is reclassified under this section is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the felony offense committed.(2)(a)    1. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for:a. Murder;b. Sexual battery;c. Robbery;d. Burglary;e. Arson;f. Aggravated assault;g. Aggravated battery;h. Kidnapping;i. Escape;j. Aircraft piracy;k. Aggravated child abuse;l. Aggravated abuse of an elderly person or disabled adult;m. Unlawful throwing, placing, or discharging of a destructive device or bomb;n. Carjacking;o. Home-invasion robbery;p. Aggravated stalking;q. Trafficking in cannabis, trafficking in cocaine, capital importation of cocaine, trafficking in illegal drugs, capital importation of illegal drugs, trafficking in phencyclidine, capital importation of phencyclidine, trafficking in methaqualone, capital importation of methaqualone, trafficking in amphetamine, capital importation of amphetamine, trafficking in flunitrazepam, trafficking in gamma-hydroxybutyric acid (GHB), trafficking in 1,4-Butanediol, trafficking in Phenethylamines, or other violation of s. 893.135(1); orr. Possession of a firearm by a felonand during the commission of the offense, such person actually possessed a “firearm” or “destructive device” as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 10 years, except that a person who is convicted for aggravated assault, possession of a firearm by a felon, or burglary of a conveyance shall be sentenced to a minimum term of imprisonment of 3 years if such person possessed a “firearm” or “destructive device” during the commission of the offense. However, if an offender who is convicted of the offense of possession of a firearm by a felon has a previous conviction of committing or attempting to commit a felony listed in s. 775.084(1)(b)1. and actually possessed a firearm or destructive device during the commission of the prior felony, the offender shall be sentenced to a minimum term of imprisonment of 10 years.2. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 shall be sentenced to a minimum term of imprisonment of 20 years. 3. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison. (b)      Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3. does not prevent a court from imposing a longer sentence of incarceration as authorized by law in addition to the minimum mandatory sentence, or from imposing a sentence of death pursuant to other applicable law. Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3. does not authorize a court to impose a lesser sentence than otherwise required by law.Notwithstanding s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, and the defendant is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency, or conditional medical release under s. 947.149, prior to serving the minimum sentence.(c)      If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed. If the mandatory minimum terms of imprisonment pursuant to this section are less than the sentences that could be imposed as authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section. (d)      It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense. (3)(a)    1. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a firearm is an element of the felony, and the conviction was for:a. Murder;b. Sexual battery;c. Robbery;d. Burglary;e. Arson;f. Aggravated assault;g. Aggravated battery;h. Kidnapping;i. Escape;j. Sale, manufacture, delivery, or intent to sell, manufacture, or deliver any controlled substance;k. Aircraft piracy;l. Aggravated child abuse;m. Aggravated abuse of an elderly person or disabled adult;n. Unlawful throwing, placing, or discharging of a destructive device or bomb;o. Carjacking;p. Home-invasion robbery;q. Aggravated stalking; orr. Trafficking in cannabis, trafficking in cocaine, capital importation of cocaine, trafficking in illegal drugs, capital importation of illegal drugs, trafficking in phencyclidine, capital importation of phencyclidine, trafficking in methaqualone, capital importation of methaqualone, trafficking in amphetamine, capital importation of amphetamine, trafficking in flunitrazepam, trafficking in gamma-hydroxybutyric acid (GHB), trafficking in 1,4-Butanediol, trafficking in Phenethylamines, or other violation of s. 893.135(1);and during the commission of the offense, such person possessed a semiautomatic firearm and its high-capacity detachable box magazine or a machine gun as defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 15 years.2. Any person who is convicted of a felony or an attempt to commit a felony listed in subparagraph (a)1., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a semiautomatic firearm and its high-capacity box magazine or a “machine gun” as defined in s. 790.001 shall be sentenced to a minimum term of imprisonment of 20 years. 3. Any person who is convicted of a felony or an attempt to commit a felony listed in subparagraph (a)1., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a semiautomatic firearm and its high-capacity box magazine or a “machine gun” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison. (b)      Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3. does not prevent a court from imposing a longer sentence of incarceration as authorized by law in addition to the minimum mandatory sentence, or from imposing a sentence of death pursuant to other applicable law. Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3. does not authorize a court to impose a lesser sentence than otherwise required by law.Notwithstanding s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, and the defendant is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency, or conditional medical release under s. 947.149, prior to serving the minimum sentence.(c)      If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed. If the mandatory minimum terms of imprisonment pursuant to this section are less than the sentences that could be imposed as authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section. (d)      It is the intent of the Legislature that offenders who possess, carry, display, use, threaten to use, or attempt to use a semiautomatic firearm and its high-capacity detachable box magazine or a machine gun as defined in s. 790.001 be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense. (e)      As used in this subsection, the term:1. “High-capacity detachable box magazine” means any detachable box magazine, for use in a semiautomatic firearm, which is capable of being loaded with more than 20 center fire cartridges.2. “Semiautomatic firearm” means a firearm which is capable of firing a series of rounds by separate successive depressions of the trigger and which uses the energy of discharge to perform a portion of the operating cycle. (4) For purposes of imposition of minimum mandatory sentencing provisions of this section, with respect to a firearm, the term “possession” is defined as carrying it on the person. Possession may also be proven by demonstrating that the defendant had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense, if proven beyond a reasonable doubt. (5) This section does not apply to law enforcement officers or to United States military personnel who are performing their lawful duties or who are traveling to or from their places of employment or assignment to perform their lawful duties. (6) Notwithstanding s. 27.366, the sentencing court shall not impose the mandatory minimum sentence required by subsection (2) or subsection (3) for a conviction for aggravated assault if the court makes written findings that:(a) The defendant had a good faith belief that the aggravated assault was justifiable pursuant to chapter 776.(b) The aggravated assault was not committed in the course of committing another criminal offense.(c) The defendant does not pose a threat to public safety.(d) The totality of the circumstances involved in the offense do not justify the imposition of such sentence.