Florida Senate - 2013                                     SB 988
       
       
       
       By Senator Joyner
       
       
       
       
       19-00005A-13                                           2013988__
    1                        A bill to be entitled                      
    2         An act relating to possession or discharge of a
    3         firearm or destructive device during the commission of
    4         specified offenses; amending s. 775.087, F.S.;
    5         providing that a sentencing court may elect not to
    6         impose the minimum term of imprisonment for persons
    7         convicted of certain offenses during which the person
    8         actually possessed or discharged a firearm or
    9         destructive device if the court finds that certain
   10         specified criteria are met; requiring a sentencing
   11         court that elects not to impose the mandatory minimum
   12         sentence for the relevant offense to make specific
   13         findings to support its decision to impose a lesser
   14         term; making grammatical and technical changes;
   15         providing an effective date.
   16  
   17  Be It Enacted by the Legislature of the State of Florida:
   18  
   19         Section 1. Section 775.087, Florida Statutes, is amended to
   20  read:
   21         775.087 Possession or use of weapon; aggravated battery;
   22  felony reclassification; minimum sentence.—
   23         (1) Unless otherwise provided by law, whenever a person is
   24  charged with a felony, except a felony in which the use of a
   25  weapon or firearm is an essential element, and during the
   26  commission of such felony the defendant carries, displays, uses,
   27  threatens to use, or attempts to use a any weapon or firearm, or
   28  during the commission of such felony the defendant commits an
   29  aggravated battery, the felony for which the person is charged
   30  shall be reclassified as follows:
   31         (a) In the case of a felony of the first degree, to a life
   32  felony.
   33         (b) In the case of a felony of the second degree, to a
   34  felony of the first degree.
   35         (c) In the case of a felony of the third degree, to a
   36  felony of the second degree.
   37  
   38  For purposes of sentencing under chapter 921 and determining
   39  incentive gain-time eligibility under chapter 944, a felony
   40  offense that which is reclassified under this section is ranked
   41  one level above the ranking under s. 921.0022 or s. 921.0023 of
   42  the felony offense committed.
   43         (2)(a)1. Except as otherwise provided in subsection (4), a
   44  any person who is convicted of a felony or an attempt to commit
   45  a felony, regardless of whether the use of a weapon is an
   46  element of the felony, and the conviction was for:
   47         a. Murder;
   48         b. Sexual battery;
   49         c. Robbery;
   50         d. Burglary;
   51         e. Arson;
   52         f. Aggravated assault;
   53         g. Aggravated battery;
   54         h. Kidnapping;
   55         i. Escape;
   56         j. Aircraft piracy;
   57         k. Aggravated child abuse;
   58         l. Aggravated abuse of an elderly person or disabled adult;
   59         m. Unlawful throwing, placing, or discharging of a
   60  destructive device or bomb;
   61         n. Carjacking;
   62         o. Home-invasion robbery;
   63         p. Aggravated stalking;
   64         q. Trafficking in cannabis, trafficking in cocaine, capital
   65  importation of cocaine, trafficking in illegal drugs, capital
   66  importation of illegal drugs, trafficking in phencyclidine,
   67  capital importation of phencyclidine, trafficking in
   68  methaqualone, capital importation of methaqualone, trafficking
   69  in amphetamine, capital importation of amphetamine, trafficking
   70  in flunitrazepam, trafficking in gamma-hydroxybutyric acid
   71  (GHB), trafficking in 1,4-Butanediol, trafficking in
   72  Phenethylamines, or other violation of s. 893.135(1); or
   73         r. Possession of a firearm by a felon
   74  
   75  and during the commission of the offense, such person actually
   76  possessed a “firearm” or “destructive device” as those terms are
   77  defined in s. 790.001, shall be sentenced to a minimum term of
   78  imprisonment of 10 years, except that a person who is convicted
   79  for aggravated assault, possession of a firearm by a felon, or
   80  burglary of a conveyance shall be sentenced to a minimum term of
   81  imprisonment of 3 years if such person possessed a “firearm” or
   82  “destructive device” during the commission of the offense.
   83  However, if an offender who is convicted of the offense of
   84  possession of a firearm by a felon has a previous conviction of
   85  committing or attempting to commit a felony listed in s.
   86  775.084(1)(b)1. and actually possessed a firearm or destructive
   87  device during the commission of the prior felony, the offender
   88  shall be sentenced to a minimum term of imprisonment of 10
   89  years.
   90         2. A Any person who is convicted of a felony or an attempt
   91  to commit a felony listed in sub-subparagraphs (a)1.a.-q.,
   92  regardless of whether the use of a weapon is an element of the
   93  felony, and during the course of the commission of the felony
   94  such person discharged a “firearm” or “destructive device” as
   95  defined in s. 790.001 shall be sentenced to a minimum term of
   96  imprisonment of 20 years.
   97         3. A Any person who is convicted of a felony or an attempt
   98  to commit a felony listed in sub-subparagraphs (a)1.a.-q.,
   99  regardless of whether the use of a weapon is an element of the
  100  felony, and during the course of the commission of the felony
  101  such person discharged a “firearm” or “destructive device” as
  102  defined in s. 790.001 and, as the result of the discharge, death
  103  or great bodily harm was inflicted upon a any person, the
  104  convicted person shall be sentenced to a minimum term of
  105  imprisonment of not less than 25 years and not more than a term
  106  of imprisonment of life in prison.
  107         (b) Subparagraph (a)1., subparagraph (a)2., or subparagraph
  108  (a)3. does not prevent a court from imposing a longer sentence
  109  of incarceration as authorized by law in addition to the minimum
  110  mandatory sentence, or from imposing a sentence of death
  111  pursuant to other applicable law. Subparagraph (a)1.,
  112  subparagraph (a)2., or subparagraph (a)3. does not authorize a
  113  court to impose a lesser sentence than otherwise required by
  114  law.
  115  
  116  Notwithstanding s. 948.01, adjudication of guilt or imposition
  117  of sentence may shall not be suspended, deferred, or withheld,
  118  and the defendant is not eligible for statutory gain-time under
  119  s. 944.275 or any form of discretionary early release, other
  120  than pardon or executive clemency, or conditional medical
  121  release under s. 947.149, before prior to serving the minimum
  122  sentence.
  123         (c) If the minimum mandatory terms of imprisonment imposed
  124  pursuant to this section exceed the maximum sentences authorized
  125  by s. 775.082, s. 775.084, or the Criminal Punishment Code under
  126  chapter 921, then the mandatory minimum sentence must be
  127  imposed. If the mandatory minimum terms of imprisonment pursuant
  128  to this section are less than the sentences that could be
  129  imposed as authorized by s. 775.082, s. 775.084, or the Criminal
  130  Punishment Code under chapter 921, then the sentence imposed by
  131  the court must include the mandatory minimum term of
  132  imprisonment as required in this section.
  133         (d) It is the intent of the Legislature that offenders who
  134  actually possess, carry, display, use, threaten to use, or
  135  attempt to use firearms or destructive devices be punished to
  136  the fullest extent of the law, and the minimum terms of
  137  imprisonment imposed pursuant to this subsection shall be
  138  imposed for each qualifying felony count for which the person is
  139  convicted. The court shall impose a any term of imprisonment
  140  provided for in this subsection consecutively to any other term
  141  of imprisonment imposed for another any other felony offense.
  142         (3)(a)1. Except as otherwise provided in subsection (4), a
  143  any person who is convicted of a felony or an attempt to commit
  144  a felony, regardless of whether the use of a firearm is an
  145  element of the felony, and the conviction was for:
  146         a. Murder;
  147         b. Sexual battery;
  148         c. Robbery;
  149         d. Burglary;
  150         e. Arson;
  151         f. Aggravated assault;
  152         g. Aggravated battery;
  153         h. Kidnapping;
  154         i. Escape;
  155         j. Sale, manufacture, delivery, or intent to sell,
  156  manufacture, or deliver a any controlled substance;
  157         k. Aircraft piracy;
  158         l. Aggravated child abuse;
  159         m. Aggravated abuse of an elderly person or disabled adult;
  160         n. Unlawful throwing, placing, or discharging of a
  161  destructive device or bomb;
  162         o. Carjacking;
  163         p. Home-invasion robbery;
  164         q. Aggravated stalking; or
  165         r. Trafficking in cannabis, trafficking in cocaine, capital
  166  importation of cocaine, trafficking in illegal drugs, capital
  167  importation of illegal drugs, trafficking in phencyclidine,
  168  capital importation of phencyclidine, trafficking in
  169  methaqualone, capital importation of methaqualone, trafficking
  170  in amphetamine, capital importation of amphetamine, trafficking
  171  in flunitrazepam, trafficking in gamma-hydroxybutyric acid
  172  (GHB), trafficking in 1,4-Butanediol, trafficking in
  173  Phenethylamines, or other violation of s. 893.135(1);
  174  
  175  and during the commission of the offense, such person possessed
  176  a semiautomatic firearm and its high-capacity detachable box
  177  magazine or a machine gun as defined in s. 790.001, shall be
  178  sentenced to a minimum term of imprisonment of 15 years.
  179         2. A Any person who is convicted of a felony or an attempt
  180  to commit a felony listed in subparagraph (a)1., regardless of
  181  whether the use of a weapon is an element of the felony, and
  182  during the course of the commission of the felony such person
  183  discharged a semiautomatic firearm and its high-capacity box
  184  magazine or a “machine gun” as defined in s. 790.001 shall be
  185  sentenced to a minimum term of imprisonment of 20 years.
  186         3. A Any person who is convicted of a felony or an attempt
  187  to commit a felony listed in subparagraph (a)1., regardless of
  188  whether the use of a weapon is an element of the felony, and
  189  during the course of the commission of the felony such person
  190  discharged a semiautomatic firearm and its high-capacity box
  191  magazine or a “machine gun” as defined in s. 790.001 and, as the
  192  result of the discharge, death or great bodily harm was
  193  inflicted upon a any person, the convicted person shall be
  194  sentenced to a minimum term of imprisonment of not less than 25
  195  years and not more than a term of imprisonment of life in
  196  prison.
  197         (b) Subparagraph (a)1., subparagraph (a)2., or subparagraph
  198  (a)3. does not prevent a court from imposing a longer sentence
  199  of incarceration as authorized by law in addition to the minimum
  200  mandatory sentence, or from imposing a sentence of death
  201  pursuant to other applicable law. Subparagraph (a)1.,
  202  subparagraph (a)2., or subparagraph (a)3. does not authorize a
  203  court to impose a lesser sentence than otherwise required by
  204  law.
  205  
  206  Notwithstanding s. 948.01, adjudication of guilt or imposition
  207  of sentence may shall not be suspended, deferred, or withheld,
  208  and the defendant is not eligible for statutory gain-time under
  209  s. 944.275 or any form of discretionary early release, other
  210  than pardon or executive clemency, or conditional medical
  211  release under s. 947.149, before prior to serving the minimum
  212  sentence.
  213         (c) If the minimum mandatory terms of imprisonment imposed
  214  pursuant to this section exceed the maximum sentences authorized
  215  by s. 775.082, s. 775.084, or the Criminal Punishment Code under
  216  chapter 921, then the mandatory minimum sentence must be
  217  imposed. If the mandatory minimum terms of imprisonment pursuant
  218  to this section are less than the sentences that could be
  219  imposed as authorized by s. 775.082, s. 775.084, or the Criminal
  220  Punishment Code under chapter 921, then the sentence imposed by
  221  the court must include the mandatory minimum term of
  222  imprisonment as required in this section.
  223         (d) It is the intent of the Legislature that offenders who
  224  possess, carry, display, use, threaten to use, or attempt to use
  225  a semiautomatic firearm and its high-capacity detachable box
  226  magazine or a machine gun as defined in s. 790.001 be punished
  227  to the fullest extent of the law, and the minimum terms of
  228  imprisonment imposed pursuant to this subsection shall be
  229  imposed for each qualifying felony count for which the person is
  230  convicted. The court shall impose a any term of imprisonment
  231  provided for in this subsection consecutively to any other term
  232  of imprisonment imposed for another any other felony offense.
  233         (e) As used in this subsection, the term:
  234         1. “High-capacity detachable box magazine” means a any
  235  detachable box magazine, for use in a semiautomatic firearm,
  236  which is capable of being loaded with more than 20 centerfire
  237  cartridges.
  238         2. “Semiautomatic firearm” means a firearm that which is
  239  capable of firing a series of rounds by separate successive
  240  depressions of the trigger and which uses the energy of
  241  discharge to perform a portion of the operating cycle.
  242         (4) The sentencing court may elect not to impose the
  243  mandatory term specified in subsection (2) or subsection (3), if
  244  applicable, if the court finds that the totality of the
  245  circumstances involved in the offense do not reasonably justify
  246  the imposition of a mandatory minimum term. Circumstances that
  247  may reasonably justify not imposing the mandatory minimum term
  248  include, but are not limited to, the following:
  249         (a) The defendant’s actions did not result in injury to
  250  another person.
  251         (b) The defendant’s actions were a response to exigent
  252  circumstances.
  253         (c) The defendant does not have a prior felony conviction
  254  involving violence.
  255         (d) The victim was an initiator, willing participant,
  256  aggressor, or provoker of the incident.
  257         (5)(4) For purposes of imposition of minimum mandatory
  258  sentencing provisions of this section, with respect to a
  259  firearm, the term “possession” is defined as carrying it on the
  260  person. Possession may also be proven by demonstrating that the
  261  defendant had the firearm within immediate physical reach with
  262  ready access with the intent to use the firearm during the
  263  commission of the offense, if proven beyond a reasonable doubt.
  264         (6)(5) This section does not apply to law enforcement
  265  officers or to United States military personnel who are
  266  performing their lawful duties or who are traveling to or from
  267  their places of employment or assignment to perform their lawful
  268  duties.
  269         Section 2. This act shall take effect July 1, 2013.