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Changes Proposed to Florida’s Infamous “10-20-Life” Sentencing Law

Changes Proposed to Florida’s Infamous “10-20-Life” Sentencing Law

Cases of aggravated assault would no longer be subject to mandatory minimum

NOTE: This post has one correction and one clarification, as noted below.

One of Florida’s more interesting laws is the so-called “10-20-Life” statute, properly cited as §775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.  In a nutshell, §775.087 provides, among other things, for mandatory minimum sentences for the possession or use of a firearm while committing one of several enumerated violent crimes.  It appears likely now that some substantial changes will be made to §775.087, particularly in the context of self-defense, on the basis of a bill moving through the Florida Senate.  (The PDF of the proposed revised bill, currently named SB 228, is embedded at the bottom of this post.)

§775.087 has, of course, long been a target for groups who oppose mandatory minimum sentencing as a matter of policy.  More interestingly, it has also become a target for the self-defense advocacy community, who believe the statute has been used inappropriately against people who were merely acting in self-defense.

In effect, the statute lists 18 various crimes, and then establishes mandatory minimum sentences if a person convicted of one of those crimes was either in possession of or discharged a firearm while committing the underlying crime:

§775.087(2)(a)(1): Possession of firearm = 10 year mandatory minimum.

§775.087(2)(a)(2): Discharge of firearm = 20 year mandatory minimum.

§775.087(2)(a)(3): Discharge causing death or great bodily harm = 25 to life mandatory minimum.

Note that each of those mandatory minimum sentences is to run consecutively with (on top of) sentencing for the underlying crime.  Thus it’s actually possible to receive a longer sentence for the “10-20-Life” portion of the offense than for the underlying offense itself. CORRECTION: I am advised by Florida public defender (appellate division) Steven Gosney that the §778.087 mandatory minimum “bumps up” the sentence for the underlying criminal charge, it is not in addition to that underlying sentence. So an aggravated assault sentence of 5 years, in which a firearm was discharged, would under §778.087 be increased to a total of 20 years; it would not end up as a combination of 5 years for the underlying charge and an additional 20 years for §778.087.

In addition, it’s an open legal question whether multiple §775.087 violations must run consecutively to each other, or whether those at least can be run concurrently. CLARIFICATION: Attorney Gosney also advises that at least one Florida appellate court has required that multiple §778.087 sentences be run consecutively. In Williams v. State, 125 So. 3d 879 (Fla. 4th DCA 2013), the appellate court held that convictions for four counts of aggravated assault involving a firearm discharge required four consecutive 20 year sentences, even though the offenses arose out of one criminal episode.

In the case of Marissa Alexander, who fired a bullet past the heads of her husband and his two small children, she faced three counts of aggravated assault and thus three 20-year violations of §775.087, resulting in an effective life sentence (in excess of 60 years) if the §775.087 sentences were to run consecutively.

Application of “10-20-Life” to Cases of Claimed Self-Defense

One of the interesting issues that has arisen in the context of §775.087 is its application to instances of claimed self-defense with a firearm, particularly cases in which a “warning shot” has been fired.  In legal terms self-defense is a legal defense raised as justification for an act that would otherwise be a crime.  If one is attacked, and uses force to defend oneself, your use of force may be claimed by the state to be a criminal act unless you can justify it on the basis of self-defense.

In several high-profile cases in Florida an armed individual discharged a firearm in what they claimed was self-defense, sometimes in a manner described as a “warning shot.” They were then charged with aggravated assault (the putting of someone in fear of imminent death or grave bodily injury), and were left to argue self-defense against that charge.

They were also, however, charged with a 20-year violation of §775.087, and thus faced a 20 year minimum sentence.

Some of these people were convicted of the underlying criminal charge and thus also incurred the 20-year minimum.  Arguably, the fact that they were convicted of the underlying charge means their claim of self-defense was rejected by the jury, and thus their conviction and mandatory minimum sentencing was appropriate.

In other cases, however, people faced with the 20-year minimum felt compelled to accept a plea bargain rather than risk arguing their case of self-defense at trial.  Absent §775.087 they might have taken their chances at trial–even if convicted of aggravated battery, as a first-time offender (as most were) they might well rely on the judge’s discretion to avoid a lengthy prison sentence.

The judges possess no such discretion with respect to §775.087, however. Judges who have refused to apply the mandatory sentencing scheme have had their decisions appealed and reversed.  Thus defendants charged with aggravated battery and the §775.087 violation know that if they lose at trial they face an absolute minimum 20 year sentence.  In many cases, they simply fold and accept the offered plea, rather than fight and take their chances at trial.

Initial Modification of “10-20-Life” Fails to Address Core Problem

Many, including many in the self-defense community, have long felt that this created unjust pressure on people who acted in lawful self-defense to plea bargain cases in which they would likely have been acquitted at trial.  The current effort to modify §775.087 is an effort to address that perceived injustice.

An earlier revision to §775.087 had attempted to provide an “escape hatch” for cases of self-defense.  Under that change a person convicted of aggravated assault could escape the sanctions of §775.087 if a court made a written finding of the following:

  • They had a good faith (but, given their conviction, mistaken) belief that the aggravated assault was justifiable as self-defense;
  • The aggravated assault was a stand-alone offense (e.g., it wasn’t committed in the course of a robbery);
  • The defendant did not otherwise pose a threat to public safety;
  • Under the totality of the circumstances the offense does not justify the imposition of such a sentence.

This was, obviously, an effort to return sentencing discretion to the trial courts in cases of aggravated assault committed in the context of self-defense.  Note, however, that this “escape” hatch does not apply to cases in which death or grave bodily in jury is caused.

While this change was favorably received, it didn’t really address the perceived underlying difficulty, that defendants would feel undue pressure to accept a plea when they might likely win at trial.  After all, there was nothing to require that a judge make such a written finding, and thus a defendant pre-trial could not count upon the “escape hatch” being made available in their case.

Proposed Change Removes Aggravated Assault from Scope of “10-20-Life”

As a result, an additional modification to §778.087 is now under consideration, and it takes a rather more direct approach:  it simply removes aggravated battery from among the enumerated crimes to which §778.087 can be applied.  (It also, incidentally, strips out the “written finding” language of the prior modification.)

Under this newest modification the defendant charged with aggravated battery can be certain that they are not facing the dreaded 20 year mandatory minimum, and thus cannot be placed under due pressure to accept a plea in cases where they have a strong prospect for winning acquittal on self-defense.  As with the prior modification, however, this does not apply to cases in which a person suffers death or grave bodily harm as a result of the defender’s discharge of a firearm.

So far this month this newest modification has been heard by two Florida senate committees.  The Appropriations Subcommittee on Criminal and Civil Justice approved the change by a 7-to-0 vote, and two weeks later the Fiscal Policy committee approved the change by a 9-to-0 vote.  Certainly efforts to change either Florida’s “stand-your-ground” or self-defense immunity have never fared nearly as well, all such efforts having been soundly crushed.

We’ll keep an eye on the bill as it moves forward, so watch here for future updates.

And, as promised, here’s the PDF of the most current proposed modification to §775.087:

–-Andrew, @LawSelfDefense


Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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Comments

NC Mountain Girl | November 20, 2015 at 11:43 am

I seem to recall this law was used to convict a 65 year old disabled veteran whose “crime” had been to fire two shots into the ground to assist his neighbor. Her grandson had been told not to bring his thuggish friends along when he came to visit. When she would not allow the group back into her house, they became abusive and threatening. This “criminal” had 100 of hours of service helping those who were in worst medical condition than he was.

    That was Ronald Thompson, who not only served honorably for 14 years but afterwards was the Deputy Representative for AMVETS and accumulated over 5,000 hours volunteering at a VA hospital. Oh yes, we Floridians breathed a deep sigh of relief when this monster was taken off the streets and sentenced to 20 years for the heinous crime of trying to look after his elderly neighbor and harming absolutely no-one in the process.
    /sarc

    Here’s another debacle, the situation of then-active duty air force serviceman Michael Giles. Read it and weep.

      Ronald Thompson failed to prove that he had any reasonable fear that an attack, which would allow for the lawful use of deadly force, was imminent. Michael Giles entered an on going fight, in a public parking lot with a handgun, for which he did not possess a CWFL, and actually shot a man, after he was knocked to the ground. He failed to prove that he was in imminent danger of suffering great bodily harm or death, or that he was the victim of a forcible felony. In Thompson’s case, he would be eligible for a reduced sentence, under the current laws. Giles, as he committed aggravated Battery, would not be entitled to a reduced sentence under either the existing laws or the proposed changes to the law.

      The point is, if you are going to pull a gun and, especially, if your are going to fire it, you had better know the laws concerning the use of force, in the state in which you happen to be.

As a Florida resident, I never liked the way 10-20-Life was written. It seems like an okay idea when the gun is used as a component of a forcible crime unrelated to the gun, such as carjacking, b&e, etc. I never understood why it applied to cases where the gun was the necessary part of the crime, such as aggravated assault by firing the weapon. The ag assault was written for those cases and should stand on its own.

I’m against all mandatory sentences. They are an idiotic attempt at correction. The problem was and is lenient liberal judges letting violent, dangerous criminals off lightly. The solution is not reducing the discretion for good judges, it is to appoint or elect better judges.

Mandatory sentencing is like zero tolerance in that in merely substitutes one form of injustice for another. The self-satisfied legislators then retire to toast each other for creating a new and different class of victims.

    ecreegan in reply to Estragon. | November 20, 2015 at 1:21 pm

    I’d like to see a limited discretion system, where a judge is allowed to waiver the mandatory minimums for a certain percentage of the defendants s/he sentences, but can’t ignore them entirely.

I’m glad to see this. As I’ve mentioned here in the past, I’ve been a supporter of FAMM (Families Against Mandatory Minimums) for a while now. It’s not a hippy-dippy-Leftist-SJW type thing, there are plenty of Republicans like me involved as well. You just have to look as some of the prisoner profiles to get an idea of how messed-up the “good intentions” behind mandatory minimums have gotten.

What all the supporters of SB228 either ignore, or brush aside is the fact that the Legislature changed the mandatory sentencing law to allow judges to impose a lesser sentence for a conviction of agg assault w/ a firearm, IF the defendant committed the violation believing that such action was justified, even if it was not justified under state law. This would seem to address the minor problem that the activists are wringing their hands over. So, this bill is unnecessary.

Thanks to the efforts of our wonderful pro-firearms activists the laws on justifiable use of force were changed in 2014. They lobbied to have the words “or threatening to use force” inserted into the use of force statutes. This essentially equated the threatened use of force with the actual use of force, in determining statutory justification. This was, allegedly, for the purpose of justifying warning shots. However, Florida case law has long held that intentionally firing a gun, in the direction of another, is a use of deadly force, not merely a threatened use of such force. What it did, however, was make it impossible to effectively argue that threatening to shoot someone, without discharging the weapon and in self defense, was not justified, under statute. At the same time, they got the language of FSS 775.087, the 10-20-Life mandatory sentence statute, changed to allow for an exception to the mandatory minimum sentences for aggravated assault. So, these changes not only caused the problem, by enlarging the pool of people who would have no defense for threatening to use force in a self defense situation, in which the actual use of force was not justified, but they also mitigated that by eliminating minimum mandatory sentencing. Now, we are told that this is not working.

One thing that has to be understood about most cases of aggravated assault, where a firearm is discharged, is that they are not “warning shots” but simply misses. They are not fired in self defense, lawful or otherwise. What these proposed changes do is ignore the original reason for the enhanced minimum mandatory sentencing laws. They were passed because jurists were handing down wholly inadequate sentences that were putting violent criminals back out on the streets in record time, allowing them to return to harming the innocent citizens of the state. At the same time, early release restrictions were instituted to force incarcerated criminals to remain out of society for 75-80 percent of their prison term. Eliminating a criminal act, which is far more often simply the inability for a criminal to hit his intended target, from this statute, when it has already been modified to allow for the mandatory sentence to be waived for good faith acts of unlawful use of force in situations where self defense was wrongly assumed by the defendant is not necessary.

Mixed feelings on this.

Judges really ought to have more latitude.

But, the reason mandatory minimums exist is because far too many (liberal) judges have a proven track record of extreme leniency when it clearly wasn’t warranted.

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