1 | A bill to be entitled |
2 | An act relating to weapons and firearms; creating s. |
3 | 790.222, F.S.; defining the terms "assault weapon" and |
4 | "large-capacity detachable magazine"; prohibiting the |
5 | manufacture, importation, possession, purchase, sale, or |
6 | transfer of an assault weapon or large-capacity detachable |
7 | magazine; providing certain specified exceptions; |
8 | providing that a knowing violation of the act is a felony |
9 | of the second degree; providing penalties; requiring the |
10 | seizure and forfeiture of assault weapons and magazines |
11 | held in violation of the act or used in committing a |
12 | crime; requiring that seized weapons and magazines be |
13 | destroyed within a certain time period; authorizing |
14 | specified grace periods during which a person may lawfully |
15 | transfer an assault weapon or magazine or take certain |
16 | other actions; granting immunity from prosecution if a |
17 | person notifies a law enforcement agency that the person |
18 | will voluntarily surrender an assault weapon or magazine; |
19 | requiring licensed firearms dealers to post a notice of |
20 | the provisions of the act and the criminal penalties |
21 | imposed for a violation of the act; amending s. 775.087, |
22 | F.S.; increasing the minimum terms of imprisonment imposed |
23 | for possessing, discharging, or seriously harming another |
24 | with a semiautomatic firearm and its high-capacity |
25 | detachable box magazine or with a machine gun; authorizing |
26 | the court to impose an additional fine against a person |
27 | whose felony conviction is reclassified under certain |
28 | specified circumstances because of the person's possession |
29 | of a semiautomatic firearm and its high-capacity |
30 | detachable box magazine or a machine gun; amending s. |
31 | 790.07, F.S.; providing that it is a second-degree felony |
32 | to possess a firearm while committing or attempting to |
33 | commit a felony; providing a first-degree felony penalty |
34 | for second or subsequent violation; providing effective |
35 | dates. |
36 |
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37 | WHEREAS, the United States Congress passed, and the |
38 | President of the United States signed into law, the Federal |
39 | Assault Weapons Act on September 13, 1994, which prohibited the |
40 | use and possession of assault weapons, and |
41 | WHEREAS, this ban expired on September 13, 2004, as |
42 | Congress did not renew it, although President George W. Bush |
43 | agreed to sign the law if passed, and |
44 | WHEREAS, as a result of the expiration of the ban, UZI's, |
45 | AK-47's, and other semiautomatic weapons are now available for |
46 | purchase and possession in this state, and |
47 | WHEREAS, a Miami-Dade police officer was shot with a |
48 | semiautomatic assault weapon the day before the federal assault |
49 | weapon ban expired, and |
50 | WHEREAS, according to the United States Bureau of Justice |
51 | Statistics, in 2003, nine states regulated assault weapons, 38 |
52 | states regulated machine guns, and 40 states regulated short- |
53 | barreled shotguns, and |
54 | WHEREAS, according to the United States Bureau of Alcohol, |
55 | Tobacco, Firearms and Explosives, assault weapons are preferred |
56 | by criminals rather than by law-abiding citizens eight to one, |
57 | NOW, THEREFORE, |
58 |
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59 | Be It Enacted by the Legislature of the State of Florida: |
60 |
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61 | Section 1. Effective January 1, 2006, section 790.222, |
62 | Florida Statutes, is created to read: |
63 | 790.222 Assault weapons and magazines; restrictions on |
64 | transfer and possession.-- |
65 | (1) DEFINITIONS.--As used in this section, the term: |
66 | (a) "Assault weapon" has the same meaning as provided in |
67 | chapter 44 (commencing with s. 921) of Title 18 of the United |
68 | States Code Annotated. |
69 | (b) "Large-capacity detachable magazine" or "magazine" |
70 | means any ammunition-feeding device the function of which is to |
71 | deliver one or more ammunition cartridges into the firing |
72 | chamber, which can be removed from the firearm without the use |
73 | of any tool and which has the capacity to hold more than 10 |
74 | rounds of ammunition. |
75 | (2) PROHIBITION.--Notwithstanding any other law to the |
76 | contrary, effective January 1, 2006, a person may not |
77 | manufacture, import, possess, purchase, sell, or transfer any |
78 | assault weapon or large-capacity detachable magazine, except as |
79 | specifically authorized in subsection (3) or subsection (6). |
80 | (3) EXCEPTIONS TO THE PROHIBITION.--Subsection (2) does |
81 | not apply to: |
82 | (a) A person who is employed by a federal, state, county, |
83 | or municipal law enforcement agency or a correctional agency |
84 | where the assault weapon or magazine is for use in the |
85 | performance of the person's lawful duties; |
86 | (b) A person who is a member of the armed forces of the |
87 | United States, the organized reserves, or the Florida National |
88 | Guard while on official military duty, in authorized training |
89 | for official military duty, or subject to recall or mobilization |
90 | and under order to possess an assault weapon or magazine; |
91 | (c) A firearms manufacturer or dealer that is properly |
92 | licensed under federal and state law to supply assault weapons |
93 | or magazines to any branch of the armed services of the United |
94 | States or to a law enforcement agency in this state; or |
95 | (d) A licensed firearms dealer who sells a lawfully |
96 | possessed assault weapon or magazine to a licensed firearms |
97 | dealer in another state. |
98 | (4) PENALTIES.--A person who knowingly violates subsection |
99 | (2) commits a felony of the second degree, punishable as |
100 | provided 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 |
103 | subsection (2) or for any offense involving the use or attempted |
104 | use of an assault weapon or magazine shall take possession of |
105 | the assault weapon or magazine and retain it until after |
106 | disposition of the charge for which the person was arrested. |
107 | (b) If the person arrested is convicted or found guilty, |
108 | regardless of adjudication, of a violation of subsection (2) or |
109 | an offense involving the use or attempted use of an assault |
110 | weapon or magazine, the seized assault weapon or magazine is |
111 | forfeited to the state, with or without an order of forfeiture, |
112 | and must be handled as provided in paragraph (e). |
113 | (c) If the person arrested is acquitted of the charge of |
114 | violating subsection (2) or an offense involving the use or |
115 | attempted use of an assault weapon or magazine, the seized |
116 | assault weapon or magazine: |
117 | 1. Must be returned to the person upon order of the court |
118 | if the person demonstrates lawful ownership or possession of the |
119 | assault weapon or magazine in accordance with state and federal |
120 | law. |
121 | 2. Is forfeited to the state, with or without an order of |
122 | forfeiture, and must be handled as provided in paragraph (e), if |
123 | the person fails to demonstrate to the court lawful ownership or |
124 | possession of the assault weapon or magazine in accordance with |
125 | state and federal law within 10 days after acquittal or |
126 | dismissal of the charges. |
127 | (d) If an assault weapon or magazine is in or comes into |
128 | the possession of a law enforcement agency through capture, |
129 | confiscation, surrender, abandonment, or rejection, or is left |
130 | and not reclaimed, the assault weapon or magazine is forfeited |
131 | to the state on January 31, 2006, or within 30 days after it |
132 | comes into the law enforcement agency's possession, whichever |
133 | occurs later, with or without an order of forfeiture, and must |
134 | be handled as provided in paragraph (e). |
135 | (e) An assault weapon or magazine that is forfeited to the |
136 | state must be destroyed within 60 days after the date it is |
137 | forfeited to the state. |
138 | (6) GRACE PERIODS.--The prohibition on the transfer and |
139 | possession of an assault weapon or magazine as provided in this |
140 | section takes effect January 1, 2006, except that: |
141 | (a) Any person who had lawful possession of an assault |
142 | weapon or magazine in this state before January 1, 2006, has |
143 | until July 1, 2006, to: |
144 | 1. Lawfully transfer the assault weapon or magazine to a |
145 | person outside this state or to an agency that may lawfully |
146 | possess an assault weapon or magazine; |
147 | 2. Have the assault weapon or magazine modified to render |
148 | it permanently inoperable; or |
149 | 3. Take other action to ensure that continued possession |
150 | of the assault weapon or magazine is not in violation of state |
151 | or federal law. |
152 | (b) Any person who comes into lawful possession of a |
153 | lawfully held assault weapon or magazine on or after January 1, |
154 | 2006, has 60 days after the date of obtaining possession of the |
155 | assault weapon or magazine to: |
156 | 1. Lawfully transfer the assault weapon or magazine to a |
157 | person outside this state or to an agency that may lawfully |
158 | possess an assault weapon or magazine; |
159 | 2. Have the assault weapon or magazine modified to render |
160 | it permanently inoperable; or |
161 | 3. Take other action to ensure that continued possession |
162 | of the assault weapon or magazine is not in violation of state |
163 | or federal law. |
164 |
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165 | As used in this paragraph, the term "lawful possession of a |
166 | lawfully held assault weapon or magazine" includes an assault |
167 | weapon or magazine that is obtained through an estate, a gift, a |
168 | bequeathal, or an inheritance. |
169 | (7) IMMUNITY FROM PROSECUTION IF AN ASSAULT WEAPON IS |
170 | VOLUNTARILY SURRENDERED.-- |
171 | (a) A person who voluntarily surrenders an unlawfully |
172 | possessed assault weapon or magazine in accordance with this |
173 | subsection to a local or state law enforcement agency after |
174 | giving the agency written notice of the intention to surrender |
175 | the weapon or magazine and the date and time of the intended |
176 | surrender is immune from prosecution for unlawful possession of |
177 | the weapon or magazine. |
178 | (b) The notice must specify the type of assault weapon or |
179 | magazine to be surrendered and the time, place, and date of the |
180 | surrender. The date of surrender may not be more than 1 week |
181 | after the date the notice is given. |
182 | (c) The assault weapon or magazine must be transported and |
183 | surrendered unloaded and secured in a manner so that it is not |
184 | readily accessible for use. |
185 | (d) Upon the request of the person surrendering an assault |
186 | weapon or magazine, the law enforcement agency receiving the |
187 | weapon or magazine shall issue a receipt for the weapon. In |
188 | surrendering the weapon or magazine, the person releases any |
189 | claim of ownership in or title to the weapon or magazine, agrees |
190 | to the forfeiture of the weapon to the state, and agrees for the |
191 | weapon or magazine to be destroyed as provided in paragraph |
192 | (5)(e). |
193 | (e) This subsection does not grant immunity from |
194 | prosecution for any offense other than unlawful possession of an |
195 | assault weapon or magazine surrendered in the required manner. |
196 | If, after notice has been given but before the weapon or |
197 | magazine is surrendered, the person uses or attempts to use the |
198 | weapon or magazine in committing a crime, the immunity from |
199 | prosecution for unlawful possession does not apply. |
200 | (8) NOTICE TO BE POSTED.--A licensed firearms dealer must |
201 | conspicuously post at each purchase counter a warning in block |
202 | letters of not less than 1 inch in height which provides |
203 | adequate notice of the time periods and criminal penalties |
204 | contained in this section. |
205 | Section 2. Subsection (3) of section 775.087, Florida |
206 | Statutes, is amended to read: |
207 | 775.087 Possession or use of weapon; aggravated battery; |
208 | felony reclassification; minimum sentence.-- |
209 | (3)(a)1. Any person who is convicted of a felony or an |
210 | attempt to commit a felony, regardless of whether the use of a |
211 | firearm 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, |
222 | manufacture, or deliver any controlled substance; |
223 | k. Aircraft piracy; |
224 | l. Aggravated child abuse; |
225 | m. Aggravated abuse of an elderly person or disabled |
226 | adult; |
227 | n. Unlawful throwing, placing, or discharging of a |
228 | destructive device or bomb; |
229 | o. Carjacking; |
230 | p. Home-invasion robbery; |
231 | q. Aggravated stalking; or |
232 | r. Trafficking in cannabis, trafficking in cocaine, |
233 | capital importation of cocaine, trafficking in illegal drugs, |
234 | capital importation of illegal drugs, trafficking in |
235 | phencyclidine, capital importation of phencyclidine, trafficking |
236 | in methaqualone, capital importation of methaqualone, |
237 | trafficking in amphetamine, capital importation of amphetamine, |
238 | trafficking in flunitrazepam, trafficking in gamma- |
239 | hydroxybutyric acid (GHB), trafficking in 1,4-Butanediol, |
240 | trafficking in Phenethylamines, or other violation of s. |
241 | 893.135(1); |
242 |
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243 | and during the commission of the offense, the such person |
244 | possessed a semiautomatic firearm and its high-capacity |
245 | detachable box magazine or a machine gun as defined in s. |
246 | 790.001, shall be sentenced to a minimum term of imprisonment of |
247 | 20 15 years. |
248 | 2. Any person who is convicted of a felony or an attempt |
249 | to commit a felony listed in subparagraph (a)1., regardless of |
250 | whether the use of a weapon is an element of the felony, and |
251 | during the course of the commission of the felony the such |
252 | person discharged a semiautomatic firearm and its high-capacity |
253 | box magazine or a "machine gun" as defined in s. 790.001 shall |
254 | be sentenced to a minimum term of imprisonment of 25 20 years. |
255 | 3. Any person who is convicted of a felony or an attempt |
256 | to commit a felony listed in subparagraph (a)1., regardless of |
257 | whether the use of a weapon is an element of the felony, and |
258 | during the course of the commission of the felony the such |
259 | person discharged a semiautomatic firearm and its high-capacity |
260 | box magazine or a "machine gun" as defined in s. 790.001 and, as |
261 | the result of the discharge, death or great bodily harm was |
262 | inflicted upon any person, the convicted person shall be |
263 | sentenced to a minimum term of imprisonment of not less than 30 |
264 | 25 years and not more than a term of imprisonment of life in |
265 | prison. |
266 | (b) Subparagraph (a)1., subparagraph (a)2., or |
267 | subparagraph (a)3. does not prevent a court from imposing a |
268 | longer sentence of incarceration as authorized by law in |
269 | addition to the minimum mandatory sentence, or from imposing a |
270 | sentence of death under pursuant to other applicable law. |
271 | Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3. |
272 | does not authorize a court to impose a lesser sentence than |
273 | otherwise required by law. |
274 |
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275 | Notwithstanding s. 948.01, adjudication of guilt or imposition |
276 | of sentence may shall not be suspended, deferred, or withheld, |
277 | and the defendant is not eligible for statutory gain-time under |
278 | s. 944.275 or any form of discretionary early release, other |
279 | than pardon or executive clemency, or conditional medical |
280 | release under s. 947.149, prior to serving the minimum sentence. |
281 | (c) If the minimum mandatory terms of imprisonment imposed |
282 | under pursuant to this section exceed the maximum sentences |
283 | authorized by s. 775.082, s. 775.084, or the Criminal Punishment |
284 | Code under chapter 921, then the mandatory minimum sentence must |
285 | be imposed. If the mandatory minimum terms of imprisonment under |
286 | pursuant to this section are less than the sentences that could |
287 | be imposed as authorized by s. 775.082, s. 775.084, or the |
288 | Criminal Punishment Code under chapter 921, then the sentence |
289 | imposed by the court must include the mandatory minimum term of |
290 | imprisonment as required in this section. |
291 | (d) In addition to any other penalty provided by law, the |
292 | court may require any person whose felony conviction is |
293 | reclassified under subparagraph (a)1., subparagraph (a)2., or |
294 | subparagraph (a)3. to pay a fine of up to $25,000. |
295 | (e)(d) It is the intent of the Legislature that offenders |
296 | who possess, carry, display, use, threaten to use, or attempt to |
297 | use a semiautomatic firearm and its high-capacity detachable box |
298 | magazine or a machine gun as defined in s. 790.001 be punished |
299 | to the fullest extent of the law, and the minimum terms of |
300 | imprisonment imposed under pursuant to this subsection shall be |
301 | imposed for each qualifying felony count for which the person is |
302 | convicted. The court shall impose any term of imprisonment |
303 | provided for in this subsection consecutively to any other term |
304 | of 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 |
307 | detachable box magazine, for use in a semiautomatic firearm, |
308 | which is capable of being loaded with more than 20 centerfire |
309 | cartridges. |
310 | 2. "Semiautomatic firearm" means a firearm which is |
311 | capable of firing a series of rounds by separate successive |
312 | depressions of the trigger and which uses the energy of |
313 | discharge to perform a portion of the operating cycle. |
314 | Section 3. Section 790.07, Florida Statutes, is amended to |
315 | read: |
316 | 790.07 Persons engaged in criminal offense, having |
317 | weapons.-- |
318 | (1) Whoever, while committing or attempting to commit any |
319 | felony or while under indictment, displays, uses, threatens, or |
320 | attempts to use any weapon or electric weapon or device or |
321 | carries a concealed weapon commits is guilty of a felony of the |
322 | third degree, punishable as provided in s. 775.082, s. 775.083, |
323 | or s. 775.084. |
324 | (2) Whoever, while committing or attempting to commit any |
325 | felony, possesses, displays, uses, threatens, or attempts to use |
326 | any firearm or carries a concealed firearm commits is guilty of |
327 | a felony of the second degree, punishable as provided in s. |
328 | 775.082, s. 775.083, and s. 775.084. |
329 | (3) The following crimes are excluded from application of |
330 | this section: Antitrust violations, unfair trade practices, |
331 | restraints of trade, nonsupport of dependents, bigamy, or other |
332 | similar offenses. |
333 | (4) Whoever, having previously been convicted of a |
334 | violation of subsection (1) or subsection (2) and, subsequent to |
335 | such conviction, possesses, displays, uses, threatens, or |
336 | attempts to use any weapon, firearm, or electric weapon or |
337 | device, carries a concealed weapon, or carries a concealed |
338 | firearm while committing or attempting to commit any felony or |
339 | while under indictment commits is guilty of a felony of the |
340 | first degree, punishable as provided in s. 775.082, s. 775.083, |
341 | or s. 775.084. Sentence may shall not be suspended or deferred |
342 | under the provisions of this subsection. |
343 | Section 4. Except as otherwise provided herein, this act |
344 | shall take effect July 1, 2005. |