Cases involving allegations of possession or use of a weapon are complex and, often, very serious. For citizens who intend to use their weapons for lawful purposes, it is critical to understand the laws regulating the carrying, concealing, and use of these weapons. For those facing weapon-related charges, it is important to understand the special laws and enhanced penalties that can result from a conviction.
When Weapons Are Illegal
The possession of a firearm or other weapon, in and of itself, may constitute a crime.
-Carrying a concealed firearm/weapon 790.01
-Openly carrying a firearm 790.053
-Improper exhibition of a firearm 790.10
-Possession of a firearm/ammunition by a convicted felon/delinquent 790.23
When Use of a Weapon Enhances The Punishment
In other instances, a weapon, when used during the commission of a separate offense, can be used to enhance the underlying charge. This means that the maximum amount of time a person can receive for the crime is greater than it otherwise would be.
You can see the language of the statute here:
“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 example, if a defendant is charged with Trafficking in Cannabis (a first-degree felony, punishable by up to thirty years of prison), and it is alleged that during the commission of that crime, he carried a weapon, the charge can be enhanced to a life-felony (punishable by life prison). In this example, the defendant could be sentenced to life in prison, but does not have to be.
In contrast, the use or possession of a firearm specifically during the commission of certain crimes can carry a minimum mandatory prison sentence. The statute known as Florida’s “10-20-Life” law (Florida State Statute s. 775.087(2)) mandates that an individual who actually possesses (contrast with constructive possession) a firearm during the commission of certain offenses faces the following minimum mandatory sentences:
-10-year minimum mandatory for actual possession alone;
-20-year minimum mandatory if the firearm is discharged;
-or, where the firearm is discharged and results in great bodily harm or death, there is a 25-year minimum mandatory sentence, and a maximum sentence of life in prison
A minimum mandatory sentence cannot be waived by the trial court during sentencing (except where sentenced as a Youthful Offender on a non-life felony) , irrespective of the circumstances of the crime, the defendant’s background, scoresheet, or any other grounds for downward departure that may normally be argued. Prosecutors, typically during plea negotiations, may elect to waive minimum mandatory sentences.
Using the same example from above, if a defendant is convicted of Trafficking in Cannabis, and he actually possesses a firearm during the commission of that crime, he faces a 10-year minimum mandatory sentence. This means that he must serve at least ten years in prison.
Defenses to Weapons Offenses
In developing a legal defense to a weapon-related charge, the following factors may be relevant:
-The legality of a traffic stop; detention/seizure of an individual; search of a home/vehicle; probable cause to arrest the individual.
-If a firearm/weapon charge results from the execution of a search warrant, it is important to review the affidavit for warrant to determine whether it was lawful and, if so, whether law enforcement exceeded to the scope of the warrant.
-Does the individual have a concealed carry license, and was the weapon actually “concealed” under Florida law
Board Certified Criminal Trial Attorney Benjamin Wurtzel has handled several firearm- and weapon-related cases. Mr. Wurtzel has handled cases where the State sought minimum-mandatory sentences of 10, 20, and 25 - Life minimum mandatory sentences. Mr. Wurtzel has substantial experience defending those accused of firearm- and weapon-related offenses, as well as a detailed knowledge of the laws and procedures that are useful for formulating an effective defense. If you or someone you know is accused of a criminal offense involving a firearm or weapon, call Wurtzel Law today for a free consultation to learn about our detailed, personalized approach to the defense of firearm and weapons cases.