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:
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.
“Law of Self Defense, 2nd Ed.” /Seminars / Instructors Course / Seminar Slides / Twitter / Facebook / Youtube
Donations tax deductible
to the full extent allowed by law.