Tough times in the sunshine state.

• Author: Scola, Robert N., Jr.
• Position: Florida mandatory sentencing laws

Florida Gets Tough on Crime with "10/20/Life" and "Three Strikes and You're Out," but Defendants Aren't the Only Ones in Trouble

It is the intent of the Legislature to establish zero tolerance of criminals who use, threaten to use, or avail themselves of firearms in order to commit crimes and thereby demonstrate their lack of value for human life.

--The Florida Legislature CS/CS/HB 113, March 31, 1999

The Florida Legislature has taken aim at repeat and violent offenders with the enactment of several new mandatory sentencing measures. Fueled by statistics showing Florida's high rate of recidivism and violent gun crimes but low rate of prison sentences for repeat and violent offenders, and encouraged by prosecutors seeking more control over the plea-bargaining process, "Three Strikes and You're Out" and "10/20/Life" came to life with a vengeance on July 1, 1999.(1) These and other recently enacted minimum mandatory and enhanced penalty laws--10 in total--will take sentencing discretion away from judges and, at the same time, apply political pressure to elected state attorneys to discourage them from bargaining these cases to lesser sentences.(2)

Interestingly, the legislature did not allot additional funds to prosecutors, public defenders, or the courts to deal with the additional trials that will inevitably ensue to dispose of these new cases. Instead, the legislature has given the Department of Corrections $500,000 to provide public service announcements which advertise the new minimum mandatory penalties.(3) The theory apparently is that if criminals know of the law, they will not violate it by committing crimes with firearms. Hence, the statutes are being advertised on radio, television, and billboards and in the newspapers.

For all state felonies committed from here on, Florida's recidivist offenders are now subject to six different "career criminal" classifications, and even first offenders face the onerous "10/20/Life" for possessing or using a firearm during certain felonies.

The legislature also has added three-year minimum mandatory sentences for the crimes of aggravated assault on a law enforcement officer,(4) aggravated assault or aggravated battery on an elderly person,(5) and possession of a firearm or destructive device by a convicted felon,(6) and a five-year minimum mandatory sentence for aggravated battery on a law enforcement officer.(7) In addition, the following minimum mandatory penalties for drug offenses are now in effect: three years for possession or sale of 25 to 2,000 pounds or 300 to 2,000 plants of cannabis, 28 to 200 grams of cocaine, and four to 14 grams of heroin, opium or morphine; seven years for possession or sale of over 2,000 to 10,000 pounds or over 2,000 plants of cannabis and 200 to 400 grams of cocaine; and 15 years for over 10,000 cannabis plants and 14 to 28 grams of heroin, opium, or morphine. Similar three-and seven-year minimum mandatories were created for the possession or sale of methaqualone, phencyclidine, amphetamines, and flunitrazepam (roofies).(8) The import of these laws is, essentially, that prosecutors will get exactly what they lobbied so feverishly for: tougher sentences and control over plea bargaining.

This article seeks to serve Florida practitioners as a primer for the "new" distinctly aggressive sentencing categories, and a refresher for the "old."

Legislative Intent

One need look no further than the legislative history of Florida's newest enhanced penalty statutes to glean the rationale for what has come to pass. The history includes:

* Florida ranks among the most violent states in the nation, and in 1996 had the highest violent crime rate of any state, exceeding the national average by 66 percent.

* But Florida ranks lower in incarceration rates than many other states with lower violent crime rates. In 1997, only 15.6 percent of all persons convicted of a felony were sentenced to state prison, the second lowest rate of incarcerated felons since 1984, and the rate of incarcerated felons has declined seven out of the last eight years.

* A substantial and disproportionate number of serious crimes are committed in this state by a relatively small number of repeat and violent felony offenders, so priority should be given to the incarceration of career criminals for extended prison terms. In the case of violent career criminals, such extended terms must include substantial minimum terms of imprisonment that will effectively incapacitate the offender, prevent future crimes, and reduce violent crime rates.

* Criminals who use guns during the commission of violent crimes pose an increased danger to the lives, health, and safety of Florida's citizens and to Florida's law enforcement officers, who daily put their lives on the line to protect citizens from violent criminals.

* For all of these reasons, it is the intent of the legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law. Criminals who use guns to commit violent crimes must be vigorously prosecuted and the state must therefore demand that minimum mandatory terms of imprisonment be imposed.(9)

"10/20/Life"

In light of these statistics and the legislature's announced intent, the enactment of "10/20/Life" should have come as no surprise. Patterned after 1997's California Assembly Bill 4, CS/CS/HB 113 amends [sections] 775.087(2) to require the imposition of minimum mandatory terms of imprisonment for crimes involving firearms, regardless of whether use of the gun is an element of the crime itself, or the offender has ever been arrested, let alone convicted before.

For all enumerated offenses committed on or after July 1, 1999, first-timers now beware:

Instead of the well-known three-year firearm minimum mandatory sentence, [sections] 775.087(2)(a)1 now requires a judge to impose a minimum mandatory 10-year term of imprisonment for any person who "actually" possesses a firearm or destructive device any time during the course of the commission or attempt to commit an enumerated felony offense.(10) For the crimes of burglary of a conveyance, aggravated assault, and possession of a firearm or destructive device by a felon, a three-year minimum mandatory--not the 10-year minimum--still applies.(11) While the bill provides that "[p]ossession may also be proven by demonstrating that the defendant had the firearm within the immediate physical reach with ready access with the intent to use [it] during the commission of the offense,"(12) it also reinforces the notion that an accomplice, i.e., an offender who never possessed the firearm during the commission of the crime, may not receive a minimum mandatory sentence for possession by a codefendant.(13)

Under [sections] 775.087(2)(a)2, the court must impose a minimum mandatory 20-year sentence if the firearm or destructive device is discharged during the course of the commission of an enumerated felony offense.(14) Unlike the 10-year provision, the legislature did not exempt burglary of a conveyance, aggravated assault, or possession of a firearm or destructive device by a felon from the 20-year penalty.(15)

Under [sections] 775.087(2)(a)3, the court must impose a minimum mandatory 25-year sentence, and may impose up to a life sentence, if the firearm or destructive device is discharged during the course of the commission or attempt to commit an enumerated felony offense (16) and causes death or great bodily harm. Again, the crimes of burglary of a conveyance, aggravated assault, and possession of a firearm or destructive device by a felon are not exempted from the mandatory penalty.

Although the 10-, 20-, and 25-year terms are mandatory, they are not all an offender faces; for the statute does not prohibit a judge from imposing a longer sentence of incarceration as authorized by law, including the death penalty.(17)

Further, except for felonies in which the weapon or firearm is an essential element, their possession or use results in the reclassification of a first degree felony to a life felony, a second degree felony to a first degree felony, and a third degree felony to a second degree felony.(18)

Additionally, adjudication of guilt or imposition of sentence shall not be "suspended, deferred, or withheld, and the defendant is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency, or conditional medical release under s. 947.149, prior to serving the minimum sentence.(19)

It is also the express intent of the legislature that all three of the new minimum mandatory sentences shall be imposed for each qualifying count. However, the statute does not require that the minimum mandatories be imposed consecutively.(20) In its committee report, the legislature does encourage courts to impose these terms consecutive to imprisonment handed down for any other felony offense,(21) but specifies that this provision is not mandatory and the statute thus does not explicitly prohibit a court from imposing concurrent sentences for multiple qualifying counts.(22)

Machine Guns

When it comes to machine guns or semiautomatic firearms with high-capacity detachable box magazines, the rules have changed a bit, too. When an offender possesses such a weapon at any time during the course of the commission or attempt to commit an enumerated felony offense under [sections] 775.087(3)(a)1,(23) the court is required to impose a minimum term of 15 years' imprisonment, not 10, or eight, as the statute formerly proscribed.

The remainder follows suit: The penalty for discharge of such a weapon during the commission or attempt to commit an enumerated felony offense merits the mandatory minimum 20-year sentence.(24) And if, during the commission or attempt to commit an enumerated offense, a victim suffers great bodily harm or is killed, the minimum mandatory 25-year term must...