HB 1273

1
A bill to be entitled
2An act relating to weapons and firearms; creating s.
3790.222, F.S.; defining the terms "assault weapon" and
4"large-capacity detachable magazine"; prohibiting the
5manufacture, importation, possession, purchase, sale, or
6transfer of an assault weapon or large-capacity detachable
7magazine; providing certain specified exceptions;
8providing that a knowing violation of the act is a felony
9of the second degree; providing penalties; requiring the
10seizure and forfeiture of assault weapons and magazines
11held in violation of the act or used in committing a
12crime; requiring that seized weapons and magazines be
13destroyed within a certain time period; authorizing
14specified grace periods during which a person may lawfully
15transfer an assault weapon or magazine or take certain
16other actions; granting immunity from prosecution if a
17person notifies a law enforcement agency that the person
18will voluntarily surrender an assault weapon or magazine;
19requiring licensed firearms dealers to post a notice of
20the provisions of the act and the criminal penalties
21imposed for a violation of the act; amending s. 775.087,
22F.S.; increasing the minimum terms of imprisonment imposed
23for possessing, discharging, or seriously harming another
24with a semiautomatic firearm and its high-capacity
25detachable box magazine or with a machine gun; authorizing
26the court to impose an additional fine against a person
27whose felony conviction is reclassified under certain
28specified circumstances because of the person's possession
29of a semiautomatic firearm and its high-capacity
30detachable box magazine or a machine gun; amending s.
31790.07, F.S.; providing that it is a second-degree felony
32to possess a firearm while committing or attempting to
33commit a felony; providing a first-degree felony penalty
34for second or subsequent violation; providing effective
35dates.
36
37     WHEREAS, the United States Congress passed, and the
38President of the United States signed into law, the Federal
39Assault Weapons Act on September 13, 1994, which prohibited the
40use and possession of assault weapons, and
41     WHEREAS, this ban expired on September 13, 2004, as
42Congress did not renew it, although President George W. Bush
43agreed to sign the law if passed, and
44     WHEREAS, as a result of the expiration of the ban, UZI's,
45AK-47's, and other semiautomatic weapons are now available for
46purchase and possession in this state, and
47     WHEREAS, a Miami-Dade police officer was shot with a
48semiautomatic assault weapon the day before the federal assault
49weapon ban expired, and
50     WHEREAS, according to the United States Bureau of Justice
51Statistics, in 2003, nine states regulated assault weapons, 38
52states regulated machine guns, and 40 states regulated short-
53barreled shotguns, and
54     WHEREAS, according to the United States Bureau of Alcohol,
55Tobacco, Firearms and Explosives, assault weapons are preferred
56by criminals rather than by law-abiding citizens eight to one,
57NOW, THEREFORE,
58
59Be It Enacted by the Legislature of the State of Florida:
60
61     Section 1.  Effective January 1, 2006, section 790.222,
62Florida Statutes, is created to read:
63     790.222  Assault weapons and magazines; restrictions on
64transfer and possession.--
65     (1)  DEFINITIONS.--As used in this section, the term:
66     (a)  "Assault weapon" has the same meaning as provided in
67chapter 44 (commencing with s. 921) of Title 18 of the United
68States Code Annotated.
69     (b)  "Large-capacity detachable magazine" or "magazine"
70means any ammunition-feeding device the function of which is to
71deliver one or more ammunition cartridges into the firing
72chamber, which can be removed from the firearm without the use
73of any tool and which has the capacity to hold more than 10
74rounds of ammunition.
75     (2)  PROHIBITION.--Notwithstanding any other law to the
76contrary, effective January 1, 2006, a person may not
77manufacture, import, possess, purchase, sell, or transfer any
78assault weapon or large-capacity detachable magazine, except as
79specifically authorized in subsection (3) or subsection (6).
80     (3)  EXCEPTIONS TO THE PROHIBITION.--Subsection (2) does
81not apply to:
82     (a)  A person who is employed by a federal, state, county,
83or municipal law enforcement agency or a correctional agency
84where the assault weapon or magazine is for use in the
85performance of the person's lawful duties;
86     (b)  A person who is a member of the armed forces of the
87United States, the organized reserves, or the Florida National
88Guard while on official military duty, in authorized training
89for official military duty, or subject to recall or mobilization
90and under order to possess an assault weapon or magazine;
91     (c)  A firearms manufacturer or dealer that is properly
92licensed under federal and state law to supply assault weapons
93or magazines to any branch of the armed services of the United
94States or to a law enforcement agency in this state; or
95     (d)  A licensed firearms dealer who sells a lawfully
96possessed assault weapon or magazine to a licensed firearms
97dealer in another state.
98     (4)  PENALTIES.--A person who knowingly violates subsection
99(2) commits a felony of the second degree, punishable as
100provided in s. 775.082, s. 775.083, or s. 775.084.
101     (5)  SEIZURE AND FORFEITURE OF ASSAULT WEAPONS.--
102     (a)  An officer who makes an arrest for a violation of
103subsection (2) or for any offense involving the use or attempted
104use of an assault weapon or magazine shall take possession of
105the assault weapon or magazine and retain it until after
106disposition of the charge for which the person was arrested.
107     (b)  If the person arrested is convicted or found guilty,
108regardless of adjudication, of a violation of subsection (2) or
109an offense involving the use or attempted use of an assault
110weapon or magazine, the seized assault weapon or magazine is
111forfeited to the state, with or without an order of forfeiture,
112and must be handled as provided in paragraph (e).
113     (c)  If the person arrested is acquitted of the charge of
114violating subsection (2) or an offense involving the use or
115attempted use of an assault weapon or magazine, the seized
116assault weapon or magazine:
117     1.  Must be returned to the person upon order of the court
118if the person demonstrates lawful ownership or possession of the
119assault weapon or magazine in accordance with state and federal
120law.
121     2.  Is forfeited to the state, with or without an order of
122forfeiture, and must be handled as provided in paragraph (e), if
123the person fails to demonstrate to the court lawful ownership or
124possession of the assault weapon or magazine in accordance with
125state and federal law within 10 days after acquittal or
126dismissal of the charges.
127     (d)  If an assault weapon or magazine is in or comes into
128the possession of a law enforcement agency through capture,
129confiscation, surrender, abandonment, or rejection, or is left
130and not reclaimed, the assault weapon or magazine is forfeited
131to the state on January 31, 2006, or within 30 days after it
132comes into the law enforcement agency's possession, whichever
133occurs later, with or without an order of forfeiture, and must
134be handled as provided in paragraph (e).
135     (e)  An assault weapon or magazine that is forfeited to the
136state must be destroyed within 60 days after the date it is
137forfeited to the state.
138     (6)  GRACE PERIODS.--The prohibition on the transfer and
139possession of an assault weapon or magazine as provided in this
140section takes effect January 1, 2006, except that:
141     (a)  Any person who had lawful possession of an assault
142weapon or magazine in this state before January 1, 2006, has
143until July 1, 2006, to:
144     1.  Lawfully transfer the assault weapon or magazine to a
145person outside this state or to an agency that may lawfully
146possess an assault weapon or magazine;
147     2.  Have the assault weapon or magazine modified to render
148it permanently inoperable; or
149     3.  Take other action to ensure that continued possession
150of the assault weapon or magazine is not in violation of state
151or federal law.
152     (b)  Any person who comes into lawful possession of a
153lawfully held assault weapon or magazine on or after January 1,
1542006, has 60 days after the date of obtaining possession of the
155assault weapon or magazine to:
156     1.  Lawfully transfer the assault weapon or magazine to a
157person outside this state or to an agency that may lawfully
158possess an assault weapon or magazine;
159     2.  Have the assault weapon or magazine modified to render
160it permanently inoperable; or
161     3.  Take other action to ensure that continued possession
162of the assault weapon or magazine is not in violation of state
163or federal law.
164
165As used in this paragraph, the term "lawful possession of a
166lawfully held assault weapon or magazine" includes an assault
167weapon or magazine that is obtained through an estate, a gift, a
168bequeathal, or an inheritance.
169     (7)  IMMUNITY FROM PROSECUTION IF AN ASSAULT WEAPON IS
170VOLUNTARILY SURRENDERED.--
171     (a)  A person who voluntarily surrenders an unlawfully
172possessed assault weapon or magazine in accordance with this
173subsection to a local or state law enforcement agency after
174giving the agency written notice of the intention to surrender
175the weapon or magazine and the date and time of the intended
176surrender is immune from prosecution for unlawful possession of
177the weapon or magazine.
178     (b)  The notice must specify the type of assault weapon or
179magazine to be surrendered and the time, place, and date of the
180surrender. The date of surrender may not be more than 1 week
181after the date the notice is given.
182     (c)  The assault weapon or magazine must be transported and
183surrendered unloaded and secured in a manner so that it is not
184readily accessible for use.
185     (d)  Upon the request of the person surrendering an assault
186weapon or magazine, the law enforcement agency receiving the
187weapon or magazine shall issue a receipt for the weapon. In
188surrendering the weapon or magazine, the person releases any
189claim of ownership in or title to the weapon or magazine, agrees
190to the forfeiture of the weapon to the state, and agrees for the
191weapon or magazine to be destroyed as provided in paragraph
192(5)(e).
193     (e)  This subsection does not grant immunity from
194prosecution for any offense other than unlawful possession of an
195assault weapon or magazine surrendered in the required manner.
196If, after notice has been given but before the weapon or
197magazine is surrendered, the person uses or attempts to use the
198weapon or magazine in committing a crime, the immunity from
199prosecution for unlawful possession does not apply.
200     (8)  NOTICE TO BE POSTED.--A licensed firearms dealer must
201conspicuously post at each purchase counter a warning in block
202letters of not less than 1 inch in height which provides
203adequate notice of the time periods and criminal penalties
204contained in this section.
205     Section 2.  Subsection (3) of section 775.087, Florida
206Statutes, is amended to read:
207     775.087  Possession or use of weapon; aggravated battery;
208felony reclassification; minimum sentence.--
209     (3)(a)1.  Any person who is convicted of a felony or an
210attempt to commit a felony, regardless of whether the use of a
211firearm is an element of the felony, and the conviction was for:
212     a.  Murder;
213     b.  Sexual battery;
214     c.  Robbery;
215     d.  Burglary;
216     e.  Arson;
217     f.  Aggravated assault;
218     g.  Aggravated battery;
219     h.  Kidnapping;
220     i.  Escape;
221     j.  Sale, manufacture, delivery, or intent to sell,
222manufacture, or deliver any controlled substance;
223     k.  Aircraft piracy;
224     l.  Aggravated child abuse;
225     m.  Aggravated abuse of an elderly person or disabled
226adult;
227     n.  Unlawful throwing, placing, or discharging of a
228destructive device or bomb;
229     o.  Carjacking;
230     p.  Home-invasion robbery;
231     q.  Aggravated stalking; or
232     r.  Trafficking in cannabis, trafficking in cocaine,
233capital importation of cocaine, trafficking in illegal drugs,
234capital importation of illegal drugs, trafficking in
235phencyclidine, capital importation of phencyclidine, trafficking
236in methaqualone, capital importation of methaqualone,
237trafficking in amphetamine, capital importation of amphetamine,
238trafficking in flunitrazepam, trafficking in gamma-
239hydroxybutyric acid (GHB), trafficking in 1,4-Butanediol,
240trafficking in Phenethylamines, or other violation of s.
241893.135(1);
242
243and during the commission of the offense, the such person
244possessed a semiautomatic firearm and its high-capacity
245detachable box magazine or a machine gun as defined in s.
246790.001, shall be sentenced to a minimum term of imprisonment of
24720 15 years.
248     2.  Any person who is convicted of a felony or an attempt
249to commit a felony listed in subparagraph (a)1., regardless of
250whether the use of a weapon is an element of the felony, and
251during the course of the commission of the felony the such
252person discharged a semiautomatic firearm and its high-capacity
253box magazine or a "machine gun" as defined in s. 790.001 shall
254be sentenced to a minimum term of imprisonment of 25 20 years.
255     3.  Any person who is convicted of a felony or an attempt
256to commit a felony listed in subparagraph (a)1., regardless of
257whether the use of a weapon is an element of the felony, and
258during the course of the commission of the felony the such
259person discharged a semiautomatic firearm and its high-capacity
260box magazine or a "machine gun" as defined in s. 790.001 and, as
261the result of the discharge, death or great bodily harm was
262inflicted upon any person, the convicted person shall be
263sentenced to a minimum term of imprisonment of not less than 30
26425 years and not more than a term of imprisonment of life in
265prison.
266     (b)  Subparagraph (a)1., subparagraph (a)2., or
267subparagraph (a)3. does not prevent a court from imposing a
268longer sentence of incarceration as authorized by law in
269addition to the minimum mandatory sentence, or from imposing a
270sentence of death under pursuant to other applicable law.
271Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3.
272does not authorize a court to impose a lesser sentence than
273otherwise required by law.
274
275Notwithstanding s. 948.01, adjudication of guilt or imposition
276of sentence may shall not be suspended, deferred, or withheld,
277and the defendant is not eligible for statutory gain-time under
278s. 944.275 or any form of discretionary early release, other
279than pardon or executive clemency, or conditional medical
280release under s. 947.149, prior to serving the minimum sentence.
281     (c)  If the minimum mandatory terms of imprisonment imposed
282under pursuant to this section exceed the maximum sentences
283authorized by s. 775.082, s. 775.084, or the Criminal Punishment
284Code under chapter 921, then the mandatory minimum sentence must
285be imposed. If the mandatory minimum terms of imprisonment under
286pursuant to this section are less than the sentences that could
287be imposed as authorized by s. 775.082, s. 775.084, or the
288Criminal Punishment Code under chapter 921, then the sentence
289imposed by the court must include the mandatory minimum term of
290imprisonment as required in this section.
291     (d)  In addition to any other penalty provided by law, the
292court may require any person whose felony conviction is
293reclassified under subparagraph (a)1., subparagraph (a)2., or
294subparagraph (a)3. to pay a fine of up to $25,000.
295     (e)(d)  It is the intent of the Legislature that offenders
296who possess, carry, display, use, threaten to use, or attempt to
297use a semiautomatic firearm and its high-capacity detachable box
298magazine or a machine gun as defined in s. 790.001 be punished
299to the fullest extent of the law, and the minimum terms of
300imprisonment imposed under pursuant to this subsection shall be
301imposed for each qualifying felony count for which the person is
302convicted. The court shall impose any term of imprisonment
303provided for in this subsection consecutively to any other term
304of imprisonment imposed for any other felony offense.
305     (f)(e)  As used in this subsection, the term:
306     1.  "High-capacity detachable box magazine" means any
307detachable box magazine, for use in a semiautomatic firearm,
308which is capable of being loaded with more than 20 centerfire
309cartridges.
310     2.  "Semiautomatic firearm" means a firearm which is
311capable of firing a series of rounds by separate successive
312depressions of the trigger and which uses the energy of
313discharge to perform a portion of the operating cycle.
314     Section 3.  Section 790.07, Florida Statutes, is amended to
315read:
316     790.07  Persons engaged in criminal offense, having
317weapons.--
318     (1)  Whoever, while committing or attempting to commit any
319felony or while under indictment, displays, uses, threatens, or
320attempts to use any weapon or electric weapon or device or
321carries a concealed weapon commits is guilty of a felony of the
322third degree, punishable as provided in s. 775.082, s. 775.083,
323or s. 775.084.
324     (2)  Whoever, while committing or attempting to commit any
325felony, possesses, displays, uses, threatens, or attempts to use
326any firearm or carries a concealed firearm commits is guilty of
327a felony of the second degree, punishable as provided in s.
328775.082, s. 775.083, and s. 775.084.
329     (3)  The following crimes are excluded from application of
330this section:  Antitrust violations, unfair trade practices,
331restraints of trade, nonsupport of dependents, bigamy, or other
332similar offenses.
333     (4)  Whoever, having previously been convicted of a
334violation of subsection (1) or subsection (2) and, subsequent to
335such conviction, possesses, displays, uses, threatens, or
336attempts to use any weapon, firearm, or electric weapon or
337device, carries a concealed weapon, or carries a concealed
338firearm while committing or attempting to commit any felony or
339while under indictment commits is guilty of a felony of the
340first degree, punishable as provided in s. 775.082, s. 775.083,
341or s. 775.084. Sentence may shall not be suspended or deferred
342under the provisions of this subsection.
343     Section 4.  Except as otherwise provided herein, this act
344shall take effect July 1, 2005.


CODING: Words stricken are deletions; words underlined are additions.