House Bill 0349e1
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HB 349, First Engrossed
1 A bill to be entitled
2 An act relating to weapons and firearms;
3 amending s. 790.22, F.S.; relating to certain
4 offenses involving use or possession of a
5 firearm by a minor or offenses during the
6 commission of which the minor possessed a
7 firearm; providing that possession of a firearm
8 by a minor in violation of specified provisions
9 constitutes a felony of the third degree
10 instead of a misdemeanor of the first degree;
11 authorizing secure detention for a specified
12 period; providing or revising penalties for
13 specified offenses; requiring secure detention
14 for specified periods, or increasing detention
15 periods imposed, for commission of specified
16 initial, second, or subsequent offenses;
17 providing for performance of community service
18 in a manner involving a hospital emergency room
19 or other medical environment dealing on a
20 regular basis with trauma patients and gunshot
21 wounds; providing that the minor offender may
22 not receive credit for time served before
23 adjudication of certain offenses; reenacting
24 ss. 943.051(3)(b) and 985.212(1)(b), F.S.,
25 relating to criminal justice information and
26 fingerprinting, to incorporate said amendment
27 in references; amending s. 790.115, F.S.;
28 requiring a minor charged with certain
29 activities to be detained in secure detention;
30 requiring a hearing within a time certain;
31 authorizing a court to order continued secure
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HB 349, First Engrossed
1 detention for a certain period; providing
2 requirements for such detention; amending s.
3 985.215, F.S.; requiring secure detention care
4 placement for a child charged with certain
5 activities; authorizing a court to continue
6 detaining a child charged with certain
7 activities; amending s. 985.227, F.S.;
8 providing for discretionary direct file for the
9 offense of possessing or discharging firearms
10 on school property; providing an effective
11 date.
12
13 Be It Enacted by the Legislature of the State of Florida:
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15 Section 1. Section 790.22, Florida Statutes, 1998
16 Supplement, is amended to read:
17 790.22 Use of BB guns, air or gas-operated guns, or
18 electric weapons or devices by minor under 16; limitation;
19 possession of firearms by minor under 18 prohibited;
20 penalties.--
21 (1) The use for any purpose whatsoever of BB guns, air
22 or gas-operated guns, or electric weapons or devices, by any
23 minor under the age of 16 years is prohibited unless such use
24 is under the supervision and in the presence of an adult who
25 is acting with the consent of the minor's parent.
26 (2) Any adult responsible for the welfare of any child
27 under the age of 16 years who knowingly permits such child to
28 use or have in his or her possession any BB gun, air or
29 gas-operated gun, electric weapon or device, or firearm in
30 violation of the provisions of subsection (1) of this section
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HB 349, First Engrossed
1 commits a misdemeanor of the second degree, punishable as
2 provided in s. 775.082 or s. 775.083.
3 (3) A minor under 18 years of age may not possess a
4 firearm, other than an unloaded firearm at his or her home,
5 unless:
6 (a) The minor is engaged in a lawful hunting activity
7 and is:
8 1. At least 16 years of age; or
9 2. Under 16 years of age and supervised by an adult.
10 (b) The minor is engaged in a lawful marksmanship
11 competition or practice or other lawful recreational shooting
12 activity and is:
13 1. At least 16 years of age; or
14 2. Under 16 years of age and supervised by an adult
15 who is acting with the consent of the minor's parent or
16 guardian.
17 (c) The firearm is unloaded and is being transported
18 by the minor directly to or from an event authorized in
19 paragraph (a) or paragraph (b).
20 (4)(a) Any parent or guardian of a minor, or other
21 adult responsible for the welfare of a minor, who knowingly
22 and willfully permits the minor to possess a firearm in
23 violation of subsection (3) commits a felony of the third
24 degree, punishable as provided in s. 775.082, s. 775.083, or
25 s. 775.084.
26 (b) Any natural parent or adoptive parent, whether
27 custodial or noncustodial, or any legal guardian or legal
28 custodian of a minor, if that minor possesses a firearm in
29 violation of subsection (3) may, if the court finds it
30 appropriate, be required to participate in classes on
31 parenting education which are approved by the Department of
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HB 349, First Engrossed
1 Juvenile Justice, upon the first conviction of the minor. Upon
2 any subsequent conviction of the minor, the court may, if the
3 court finds it appropriate, require the parent to attend
4 further parent education classes or render community service
5 hours together with the child.
6 (c) No later than July 1, 1994, the district juvenile
7 justice boards or county juvenile justice councils or the
8 Department of Juvenile Justice shall establish appropriate
9 community service programs to be available to the alternative
10 sanctions coordinators of the circuit courts in implementing
11 this subsection. The boards or councils or department shall
12 propose the implementation of a community service program in
13 each circuit, and may submit a circuit plan, to be implemented
14 upon approval of the circuit alternative sanctions
15 coordinator.
16 (d) For the purposes of this section, community
17 service may be provided on public property as well as on
18 private property with the expressed permission of the property
19 owner. Any community service provided on private property is
20 limited to such things as removal of graffiti and restoration
21 of vandalized property.
22 (5)(a) A minor who violates subsection (3) commits a
23 felony misdemeanor of the third first degree; for a first
24 offense, may serve a period of detention of up to 3 days in a
25 secure detention facility;, and, in addition to any other
26 penalty provided by law, shall be required to perform 100
27 hours of community service;, and:
28 1. If the minor is eligible by reason of age for a
29 driver license or driving privilege, the court shall direct
30 the Department of Highway Safety and Motor Vehicles to revoke
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HB 349, First Engrossed
1 or to withhold issuance of the minor's driver license or
2 driving privilege for up to 1 year.
3 2. If the minor's driver license or driving privilege
4 is under suspension or revocation for any reason, the court
5 shall direct the Department of Highway Safety and Motor
6 Vehicles to extend the period of suspension or revocation by
7 an additional period of up to 1 year.
8 3. If the minor is ineligible by reason of age for a
9 driver license or driving privilege, the court shall direct
10 the Department of Highway Safety and Motor Vehicles to
11 withhold issuance of the minor's driver license or driving
12 privilege for up to 1 year after the date on which the minor
13 would otherwise have become eligible.
14 (b) For a second or subsequent offense, the minor may
15 serve a period of detention of up to 15 days in a secure
16 detention facility and shall be required to perform not less
17 than 100 nor more than 250 hours of community service, and:
18 1. If the minor is eligible by reason of age for a
19 driver license or driving privilege, the court shall direct
20 the Department of Highway Safety and Motor Vehicles to revoke
21 or to withhold issuance of the minor's driver license or
22 driving privilege for up to 2 years.
23 2. If the minor's driver license or driving privilege
24 is under suspension or revocation for any reason, the court
25 shall direct the Department of Highway Safety and Motor
26 Vehicles to extend the period of suspension or revocation by
27 an additional period of up to 2 years.
28 3. If the minor is ineligible by reason of age for a
29 driver license or driving privilege, the court shall direct
30 the Department of Highway Safety and Motor Vehicles to
31 withhold issuance of the minor's driver license or driving
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HB 349, First Engrossed
1 privilege for up to 2 years after the date on which the minor
2 would otherwise have become eligible.
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4 For the purposes of this subsection, community service shall
5 be performed, if possible, in a manner involving a hospital
6 emergency room or other medical environment that deals on a
7 regular basis with trauma patients and gunshot wounds.
8 (6) Any firearm that is possessed or used by a minor
9 in violation of this section shall be promptly seized by a law
10 enforcement officer and disposed of in accordance with s.
11 790.08(1)-(6).
12 (7) The provisions of this section are supplemental to
13 all other provisions of law relating to the possession, use,
14 or exhibition of a firearm.
15 (8) Notwithstanding s. 985.213 or s. 985.215(1), if a
16 minor under 18 years of age is charged with an offense that
17 involves the use or possession of a firearm, as defined in s.
18 790.001, including other than a violation of subsection (3),
19 or is charged for any offense during the commission of which
20 the minor possessed a firearm, the minor shall be detained in
21 secure detention, unless the state attorney authorizes the
22 release of the minor, and shall be given a hearing within 24
23 hours after being taken into custody. At the hearing, the
24 court may order that the minor continue to be held in secure
25 detention in accordance with the applicable time periods
26 specified in s. 985.215(5), if the court finds that the minor
27 meets the criteria specified in s. 985.215(2), or if the court
28 finds by clear and convincing evidence that the minor is a
29 clear and present danger to himself or herself or the
30 community. The Department of Juvenile Justice shall prepare a
31 form for all minors charged under this subsection that states
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HB 349, First Engrossed
1 the period of detention and the relevant demographic
2 information, including, but not limited to, the sex, age, and
3 race of the minor; whether or not the minor was represented by
4 private counsel or a public defender; the current offense; and
5 the minor's complete prior record, including any pending
6 cases. The form shall be provided to the judge to be
7 considered when determining whether the minor should be
8 continued in secure detention under this subsection. An order
9 placing a minor in secure detention because the minor is a
10 clear and present danger to himself or herself or the
11 community must be in writing, must specify the need for
12 detention and the benefits derived by the minor or the
13 community by placing the minor in secure detention, and must
14 include a copy of the form provided by the department. The
15 Department of Juvenile Justice must send the form, including a
16 copy of any order, without client-identifying information, to
17 the Office of Economic and Demographic Research.
18 (9) Notwithstanding s. 985.214, if the minor is found
19 to have committed an offense that involves the use or
20 possession of a firearm, as defined in s. 790.001, other than
21 a violation of subsection (3), or an offense during the
22 commission of which the minor possessed a firearm, and the
23 minor is not committed to a residential commitment program of
24 the Department of Juvenile Justice, in addition to any other
25 punishment provided by law, the court shall order:
26 (a) For a first offense, that the minor shall serve a
27 minimum mandatory period of detention of 10 5 days in a secure
28 detention facility; and
29 1. Perform 100 hours of community service; and.
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HB 349, First Engrossed
1 2. Be committed to the department for placement on
2 community control or in a nonresidential or residential
3 commitment program.
4 (b) For a second or subsequent offense, that the minor
5 shall serve a mandatory period of detention of at least 15 10
6 days in a secure detention facility; and
7 1. Perform not less than 100 nor more than 250 hours
8 of community service; and.
9 2. Be committed to the department for placement on
10 community control or in a nonresidential or residential
11 commitment program.
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13 The minor shall not receive credit for time served before
14 adjudication. For the purposes of this subsection, community
15 service shall be performed, if possible, in a manner involving
16 a hospital emergency room or other medical environment that
17 deals on a regular basis with trauma patients and gunshot
18 wounds.
19 (10) If a minor is found to have committed an offense
20 under subsection (9), the court shall impose the following
21 penalties in addition to any penalty imposed under paragraph
22 (9)(a) or paragraph (9)(b):
23 (a) For a first offense:
24 1. If the minor is eligible by reason of age for a
25 driver license or driving privilege, the court shall direct
26 the Department of Highway Safety and Motor Vehicles to revoke
27 or to withhold issuance of the minor's driver license or
28 driving privilege for up to 1 year.
29 2. If the minor's driver license or driving privilege
30 is under suspension or revocation for any reason, the court
31 shall direct the Department of Highway Safety and Motor
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HB 349, First Engrossed
1 Vehicles to extend the period of suspension or revocation by
2 an additional period for up to 1 year.
3 3. If the minor is ineligible by reason of age for a
4 driver license or driving privilege, the court shall direct
5 the Department of Highway Safety and Motor Vehicles to
6 withhold issuance of the minor's driver license or driving
7 privilege for up to 1 year after the date on which the minor
8 would otherwise have become eligible.
9 (b) For a second or subsequent offense:
10 1. If the minor is eligible by reason of age for a
11 driver license or driving privilege, the court shall direct
12 the Department of Highway Safety and Motor Vehicles to revoke
13 or to withhold issuance of the minor's driver license or
14 driving privilege for up to 2 years.
15 2. If the minor's driver license or driving privilege
16 is under suspension or revocation for any reason, the court
17 shall direct the Department of Highway Safety and Motor
18 Vehicles to extend the period of suspension or revocation by
19 an additional period for up to 2 years.
20 3. If the minor is ineligible by reason of age for a
21 driver license or driving privilege, the court shall direct
22 the Department of Highway Safety and Motor Vehicles to
23 withhold issuance of the minor's driver license or driving
24 privilege for up to 2 years after the date on which the minor
25 would otherwise have become eligible.
26 Section 2. For the purpose of incorporating the
27 amendment to section 790.22, Florida Statutes, 1998
28 Supplement, in references thereto, the following sections or
29 subdivisions of Florida Statutes or Florida Statutes, 1998
30 Supplement, are reenacted to read:
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HB 349, First Engrossed
1 943.051 Criminal justice information; collection and
2 storage; fingerprinting.--
3 (3)
4 (b) A minor who is charged with or found to have
5 committed the following misdemeanors shall be fingerprinted
6 and the fingerprints shall be submitted to the department:
7 1. Assault, as defined in s. 784.011.
8 2. Battery, as defined in s. 784.03.
9 3. Carrying a concealed weapon, as defined in s.
10 790.01(1).
11 4. Unlawful use of destructive devices or bombs, as
12 defined in s. 790.1615(1).
13 5. Negligent treatment of children, as defined in s.
14 827.05.
15 6. Assault or battery on a law enforcement officer, a
16 firefighter, or other specified officers, as defined in s.
17 784.07(2)(a) and (b).
18 7. Open carrying of a weapon, as defined in s.
19 790.053.
20 8. Exposure of sexual organs, as defined in s. 800.03.
21 9. Unlawful possession of a firearm, as defined in s.
22 790.22(5).
23 10. Petit theft, as defined in s. 812.014(3).
24 11. Cruelty to animals, as defined in s. 828.12(1).
25 12. Arson, as defined in s. 806.031(1).
26 985.212 Fingerprinting and photographing.--
27 (1)
28 (b) A child who is charged with or found to have
29 committed one of the following misdemeanors shall be
30 fingerprinted and the fingerprints shall be submitted to the
31 Department of Law Enforcement as provided in s. 943.051(3)(b):
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HB 349, First Engrossed
1 1. Assault, as defined in s. 784.011.
2 2. Battery, as defined in s. 784.03.
3 3. Carrying a concealed weapon, as defined in s.
4 790.01(1).
5 4. Unlawful use of destructive devices or bombs, as
6 defined in s. 790.1615(1).
7 5. Negligent treatment of children, as defined in
8 former s. 827.05.
9 6. Assault on a law enforcement officer, a
10 firefighter, or other specified officers, as defined in s.
11 784.07(2)(a).
12 7. Open carrying of a weapon, as defined in s.
13 790.053.
14 8. Exposure of sexual organs, as defined in s. 800.03.
15 9. Unlawful possession of a firearm, as defined in s.
16 790.22(5).
17 10. Petit theft, as defined in s. 812.014.
18 11. Cruelty to animals, as defined in s. 828.12(1).
19 12. Arson, resulting in bodily harm to a firefighter,
20 as defined in s. 806.031(1).
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22 A law enforcement agency may fingerprint and photograph a
23 child taken into custody upon probable cause that such child
24 has committed any other violation of law, as the agency deems
25 appropriate. Such fingerprint records and photographs shall be
26 retained by the law enforcement agency in a separate file, and
27 these records and all copies thereof must be marked "Juvenile
28 Confidential." These records shall not be available for public
29 disclosure and inspection under s. 119.07(1) except as
30 provided in ss. 943.053 and 985.04(5), but shall be available
31 to other law enforcement agencies, criminal justice agencies,
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HB 349, First Engrossed
1 state attorneys, the courts, the child, the parents or legal
2 custodians of the child, their attorneys, and any other person
3 authorized by the court to have access to such records. These
4 records may, in the discretion of the court, be open to
5 inspection by anyone upon a showing of cause. The fingerprint
6 and photograph records shall be produced in the court whenever
7 directed by the court. Any photograph taken pursuant to this
8 section may be shown by a law enforcement officer to any
9 victim or witness of a crime for the purpose of identifying
10 the person who committed such crime.
11 Section 3. Subsection (4) is added to section 790.115,
12 Florida Statutes, to read:
13 790.115 Possessing or discharging weapons or firearms
14 on school property prohibited; penalties; exceptions.--
15 (4) Notwithstanding s. 985.213, s. 985.214, or s.
16 985.215(1), any minor under 18 years of age who is charged
17 under this section with possessing or discharging a firearm on
18 school property shall be detained in secure detention, unless
19 the state attorney authorizes the release of the minor, and
20 shall be given a probable cause hearing within 24 hours after
21 being taken into custody. At the hearing, the court may order
22 that the minor continue to be held in secure detention for a
23 period of 21 days, during which time the minor shall receive
24 medical, psychiatric, psychological, or substance abuse
25 examinations pursuant to s. 985.224 and a written report shall
26 be completed.
27 Section 4. Paragraph (b) of subsection (1) and
28 subsection (2) of section 985.215, Florida Statutes, 1998
29 Supplement, are amended to read:
30 985.215 Detention.--
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HB 349, First Engrossed
1 (1) The juvenile probation officer shall receive
2 custody of a child who has been taken into custody from the
3 law enforcement agency and shall review the facts in the law
4 enforcement report or probable cause affidavit and make such
5 further inquiry as may be necessary to determine whether
6 detention care is required.
7 (b) The juvenile probation officer shall base the
8 decision whether or not to place the child into secure
9 detention care, home detention care, or nonsecure detention
10 care on an assessment of risk in accordance with the risk
11 assessment instrument and procedures developed by the
12 Department of Juvenile Justice under s. 985.213. However, a
13 child charged with possessing or discharging a firearm on
14 school property in violation of s. 790.115 shall be placed in
15 secure detention care.
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17 Under no circumstances shall the juvenile probation officer or
18 the state attorney or law enforcement officer authorize the
19 detention of any child in a jail or other facility intended or
20 used for the detention of adults, without an order of the
21 court.
22 (2) Subject to the provisions of subsection (1), a
23 child taken into custody and placed into nonsecure or home
24 detention care or detained in secure detention care prior to a
25 detention hearing may continue to be detained by the court if:
26 (a) The child is alleged to be an escapee or an
27 absconder from a commitment program, a community control
28 program, furlough, or aftercare supervision, or is alleged to
29 have escaped while being lawfully transported to or from such
30 program or supervision.
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HB 349, First Engrossed
1 (b) The child is wanted in another jurisdiction for an
2 offense which, if committed by an adult, would be a felony.
3 (c) The child is charged with a delinquent act or
4 violation of law and requests in writing through legal counsel
5 to be detained for protection from an imminent physical threat
6 to his or her personal safety.
7 (d) The child is charged with committing an offense of
8 domestic violence as defined in s. 741.28(1) and is detained
9 as provided in s. 985.213(2)(b)3.
10 (e) The child is charged with possession or
11 discharging a firearm on school property in violation of
12 790.115.
13 (f)(e) The child is charged with a capital felony, a
14 life felony, a felony of the first degree, a felony of the
15 second degree that does not involve a violation of chapter
16 893, or a felony of the third degree that is also a crime of
17 violence, including any such offense involving the use or
18 possession of a firearm.
19 (g)(f) The child is charged with any second degree or
20 third degree felony involving a violation of chapter 893 or
21 any third degree felony that is not also a crime of violence,
22 and the child:
23 1. Has a record of failure to appear at court hearings
24 after being properly notified in accordance with the Rules of
25 Juvenile Procedure;
26 2. Has a record of law violations prior to court
27 hearings;
28 3. Has already been detained or has been released and
29 is awaiting final disposition of the case;
30 4. Has a record of violent conduct resulting in
31 physical injury to others; or
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HB 349, First Engrossed
1 5. Is found to have been in possession of a firearm.
2 (h)(g) The child is alleged to have violated the
3 conditions of the child's community control or aftercare
4 supervision. However, a child detained under this paragraph
5 may be held only in a consequence unit as provided in s.
6 985.231(1)(a)1.c. If a consequence unit is not available, the
7 child shall be placed on home detention with electronic
8 monitoring.
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10 A child who meets any of these criteria and who is ordered to
11 be detained pursuant to this subsection shall be given a
12 hearing within 24 hours after being taken into custody. The
13 purpose of the detention hearing is to determine the existence
14 of probable cause that the child has committed the delinquent
15 act or violation of law with which he or she is charged and
16 the need for continued detention. Unless a child is detained
17 under paragraph (d) or paragraph (e), the court shall utilize
18 the results of the risk assessment performed by the juvenile
19 probation officer and, based on the criteria in this
20 subsection, shall determine the need for continued detention.
21 A child placed into secure, nonsecure, or home detention care
22 may continue to be so detained by the court pursuant to this
23 subsection. If the court orders a placement more restrictive
24 than indicated by the results of the risk assessment
25 instrument, the court shall state, in writing, clear and
26 convincing reasons for such placement. Except as provided in
27 s. 790.22(8) or in subparagraph (10)(a)2., paragraph (10)(b),
28 paragraph (10)(c), or paragraph (10)(d), when a child is
29 placed into secure or nonsecure detention care, or into a
30 respite home or other placement pursuant to a court order
31 following a hearing, the court order must include specific
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1 instructions that direct the release of the child from such
2 placement no later than 5 p.m. on the last day of the
3 detention period specified in paragraph (5)(b) or paragraph
4 (5)(c), or subparagraph (10)(a)1., whichever is applicable,
5 unless the requirements of such applicable provision have been
6 met or an order of continuance has been granted pursuant to
7 paragraph (5)(d).
8 Section 5. Paragraph (a) of subsection (1) of section
9 985.227, Florida Statutes, is amended to read:
10 985.227 Prosecution of juveniles as adults by the
11 direct filing of an information in the criminal division of
12 the circuit court; discretionary criteria; mandatory
13 criteria.--
14 (1) DISCRETIONARY DIRECT FILE; CRITERIA.--
15 (a) With respect to any child who was 14 or 15 years
16 of age at the time the alleged offense was committed, the
17 state attorney may file an information when in the state
18 attorney's judgment and discretion the public interest
19 requires that adult sanctions be considered or imposed and
20 when the offense charged is:
21 1. Arson;
22 2. Sexual battery;
23 3. Robbery;
24 4. Kidnapping;
25 5. Aggravated child abuse;
26 6. Aggravated assault;
27 7. Aggravated stalking;
28 8. Murder;
29 9. Manslaughter;
30 10. Unlawful throwing, placing, or discharging of a
31 destructive device or bomb;
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1 11. Armed burglary in violation of s. 810.02(2)(b) or
2 specified burglary of a dwelling or structure in violation of
3 s. 810.02(2)(c);
4 12. Aggravated battery;
5 13. Lewd or lascivious assault or act in the presence
6 of a child;
7 14. Carrying, displaying, using, threatening, or
8 attempting to use a weapon or firearm during the commission of
9 a felony; or
10 15. Grand theft in violation of s. 812.014(2)(a); or.
11 16. Possessing or discharging any weapon or firearm on
12 school property in violation of s. 790.115.
13 Section 6. This act shall take effect October 1, 1999.
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