Florida Sentencing Enhancements: 10-20-Life

As a Florida resident, you may recall seeing a large billboard with the words "Use a Gun You're Done" prominently displayed in black lettering. That phrase is a reference to Florida's 10-20-Life statute, which is set forth in s. 775.087. The statute applies to three broad categories of accused persons: (1) those who carry, use, or threaten to use a weapon or firearm during the commission of a felony offense, where the use of a weapon or firearm is not an essential element of the crime; (2) those who commit certain felony offenses (or attempt to commit such offenses) and, in so doing, possess or use a firearm or destructive device, regardless of whether the possession or use of the firearm or destructive device is

an essential element of the crime; and (3) those who commit certain felony offenses (or attempt to commit such offenses) and, in so doing, possess or use a semi-automatic firearm or machine gun, regardless of whether the possession or use of the semi-automatic firearm or machine gun is an essential element of the crime. Each category affects the accused person in different ways with regard to sentencing implications.

The first "category" of offenses under 10-20-Life is codified in section 775.087(1). Under that provision, whenever a person is charged with a felony offense, except a felony in which the use of weapon or firearm is an essential element of the crime, and the person "carries, displays, uses, threatens to use, or attempts to use" a weapon or firearm, or the person commits an aggravated battery, the offense is reclassified. Reclassification increases the maximum sentence the court can lawfully impose (the top end of the guidelines). What would otherwise be a felony of the first degree is reclassified to a life felony.

This means that the maximum penalty is increased from thirty years to life. What would otherwise be a felony of the second degree is reclassified to a felony of the first degree, which increases the maximum penalty from fifteen years to thirty years. What would otherwise be a felony of the third degree is reclassified to a felony of the second degree, which increases the maximum penalty from five years to fifteen years. Also, the offense level, for purposes of Florida's sentencing guidelines, is re-ranked a single point higher. This increases the lowest sentence the court can lawfully impose (the bottom end of the guidelines). While a single point may not sound like much, it can mean years of additional prison time for more serious offenses.

Once again, 775.0871(1) does not apply to felony offenses in which the use of a weapon or firearm is an essential element. For example, the use of a weapon or firearm is an essential element of the crime of armed robbery and, therefore, 775.087(1) would not apply to that particular offense. You cannot commit an armed robbery without being armed. On the other hand, the use of a weapon or firearm is not an essential element of the crime of sexual battery (for example) and therefore, if in the course of committing sexual battery, the accused person used a weapon or firearm, he or she would be subject to reclassification under 775.087(1).

The second "category" of offense under 10-20-Life is codified in section 775.087(2). It applies to persons who are convicted of committing (or attempting to commit) any of the following crimes: (a) Murder; (b) Sexual battery; (c) Robbery; (d) Burglary; (e) Arson; (f) Aggravated assault (for offenses committed prior to July 1st, 2016); (g) Aggravated battery; (h) Kidnapping; (i) Escape; (j) Aircraft piracy; (k) Aggravated child abuse; (l) Aggravated abuse of an elderly person or disabled adult; (m) Unlawful throwing, placing, or discharging or a destructive device or bomb; (n) Carjacking; (o) Home-invasion robbery; (p) Aggravated stalking; (q) Trafficking in certain controlled substances; or (r) Possession of a firearm by a convicted felon. Such persons who, in the commission of the crime, actually possess a firearm or destructive device, must be sentenced to a minimum term of imprisonment of ten years upon conviction.

There is a caveat: a person who is convicted of felon in possession of a firearm or burglary to a conveyance, is subject to a three year minimum mandatory sentence, not ten. If, however, the person convicted of felon in possession of a firearm has a prior conviction for any of the aforementioned offenses, and used a firearm during the commission of that prior offense, he or she is subject to a ten year minimum mandatory sentence. Prior to July 1st, 2016, a person who actually possessed a firearm during the commission of an aggravated assault offense was subject to a three year minimum mandatory sentence and, if the firearm was discharged, a twenty year minimum mandatory sentence. Effective July 1st, 2016, aggravated assault is deleted from the list of offenses to which 10-20-Life applies and minimum mandatory sentences are no longer applicable in these types of cases.

If, during the commission of any of the aforementioned offenses, the accused person discharges a firearm or destructive device, he or she must be sentenced to a minimum term of imprisonment of twenty years upon conviction. If the person discharges a firearm or destructive device and, as a result of the discharge, death or great bodily harm occurs, the accused person must be sentenced to a term of imprisonment that is not less than twenty five years, and up to life.

For purposes of 775.087(2), and the applicability of minimum mandatory sentences (as opposed to reclassification under 775.087(1)) it does not matter where the use of a weapon is an essential element of the crime. Thus, the person convicted of armed robbery in our example above (who possessed a firearm during the commission of the crime), would be subject to a ten year minimum mandatory sentence.

The third "category" of offense under 10-20-Life is codified in section 775.087(3). It applies to persons who are convicted of committing (or attempting to commit) any of the following crimes: (a) Murder; (b) Sexual battery; (c) Robbery; (d) Burglary; (e) Arson; (f) Aggravated assault (prior to July 1st, 2016); (g) Aggravated battery; (h) Kidnapping; (i) Escape; (j) Sale, manufacture, delivery, or intent to sell manufacture or deliver any controlled substance; (k) Aircraft piracy; (l) Aggravated child abuse; (m) Aggravated abuse of an elderly person or disabled adult; (n) Unlawful throwing, placing, or discharging of a destructive device or bomb; (o) Carjacking; (p) Home-invasion robbery; (q) Aggravated stalking; or (r) Trafficking in certain controlled substances. Such persons who, in the commission of the crime, possess a semi-automatic firearm and its high capacity detachable box magazine, or a machine gun, must be sentenced to a minimum term of imprisonment of fifteen years.

If the person discharges such a weapon, he or she must be sentenced to a minimum term of imprisonment of twenty years upon conviction. If the person discharges such a weapon and, as a result of the discharge, death or great bodily harm occurs, the convicted person must be sentenced to a term of imprisonment that is not less than twenty five years, and up to life. It does not matter whether the use of a firearm is an essential element of the crime.

For purposes of 10-20-Life, with respect to a firearm, the term "possession" means carrying it on the person. Possession may also be proven by demonstrating that the defendant had the firearm within his or her immediate physical reach, with ready access, and with the intent to use the firearm during the commission of the offense, if it can be proven beyond a reasonable doubt.

As you can see, some of these minimum mandatory sentences are extremely severe. In many cases, the applicable minimum mandatory will exceed the statutory maximum. In such cases, the minimum mandatory trumps. For example, aggravated assault with a firearm carries a statutory maximum of five years. If the accused person discharged the firearm, the applicable minimum mandatory would be twenty years. Despite the five year statutory maximum, the court could (and would no choice but to) impose a twenty year sentence. To make matters worse, the 10-20-Life statute requires that a minimum mandatory term of imprisonment, imposed in accordance with its provisions, run consecutive to any other term of imprisonment that is imposed for any other felony offense at the time of sentencing.

If you use a firearm during the commission of a felony, 10-20-Life's draconian reclassification and/or minimum mandatory sentencing provisions will very likely apply, regardless of your prior record. In enacting the 10-20-Life statute, the Florida legislature served notice that the possession or use of firearms during the commission of criminal offenses will not be tolerated in this state.

Sentencing in Florida can be very complicated. This article provides a generalized overview of Florida's 10-20-Life statute. As always, specific questions should be directed to an experienced criminal defense attorney in your area.

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ABOUT THE AUTHOR: Donald J. Kilfin
Attorney Donald J. Kilfin is a former Pinellas county state prosecutor. He owns and operates The Kilfin Law Firm, P.C., a Tampa Bay area DUI and criminal defense firm representing clients in St. Petersburg, Clearwater, Tampa, New Port Richey, Dade City, and Bradenton.

Copyright The Kilfin Law Firm, P.C.



Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case. For specific technical or legal advice on the information provided and related topics, please contact the author.