The Aggravated Assault Exceptions to Florida's 10-20-Life Statute

Use a gun and you're done? Well . . . maybe not. In general terms, Florida's 10-20-Life statute requires the imposition of a ten year minimum mandatory sentence for the possession of a firearm during commission of certain offenses, a twenty year minimum mandatory for the discharge of a firearm during the commission of certain offenses and, twenty five years to life in prison if the discharge results in death or great bodily harm to another (see Fla. Stat. s. 775.087(2)). If the person possesses a semi-automatic firearm or machine gun, the applicable min. man. is 15 years (as opposed to 10) but the penalties for discharge and discharge resulting in death or great bodily harm are the same (see Fla. Stat. s. 775.087(3)).

The legislative intent in enacting such harsh minimum mandatories is set forth in Florida statutes s. 27.366, and provides as follows: "it is the intent of the legislature that convicted criminal offenders who meet the criteria in s. 775.087(2) and (3) be sentenced to the minimum mandatory prison terms provided herein. 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. It is also the intent of the legislature that prosecutors should appropriately exercise their discretion in those cases in which the offender's possession of the firearm is incidental to the commission of a crime and not used in furtherance of the crime, used in order to commit the crime, or used in preparation to commit the crime. For every case in which the offender meets the criteria in this act and does not receive the minimum mandatory prison sentence, the state attorney must explain the sentencing deviation in writing, and place such explanation in the case file maintained by the state attorney."

Under Florida statute section 775.087, a person who commits (or attempts to commit) any of the following offenses, while in actual possession of a firearm, is subject to a minimum mandatory sentence: (1) Murder; (2) Sexual battery; (3) Robbery; (4) Burglary; (5) Arson; (6) Aggravated assault; (7) Aggravated battery; (8) Kidnapping; (9) Escape; (10) Aircraft piracy; (11) Aggravated child abuse; (12) Aggravated abuse of an elderly person or disabled adult; (13) Unlawful throwing, placing, or discharging of a destructive device or bomb; (14) Carjacking; (15) Home-invasion robbery; (16) Aggravated stalking; (17) certain drug trafficking offenses; or (18) felon in possession of a firearm. In almost every instance, the applicable minimum mandatory sentence (for possession of a firearm during the commission of the crime) is 10 years.

The statute carves out an exception, however, for aggravated assault, burglary to a conveyance, and felon in possession of a firearm: the applicable minimum mandatory sentence is three years, not ten. With regard to felon in possession of a firearm, there is an exception to the exception: if the accused person has a prior conviction for any of the above listed offenses, and during the commission of the prior offense he or she possessed a firearm, the minimum mandatory reverts back to 10 years. Thus, aggravated assault occupies a unique position under 10-20-Life as it pertains to the possession of a firearm during the commission of the crime: the minimum mandatory is substantially less than most of the other enumerated crimes, and there is no provision for a "reversion" back to 10 years based on the person's prior record or some other circumstance.

The exceptions 10-20-Life makes for aggravated assault offenses involving a firearm don't end there. As stated above, discharge of a firearm during the commission of an enumerated offense (including aggravated assault) will result in a 20 year minimum mandatory sentence. Discharge resulting in death or great bodily harm during the commission of an enumerated offense will result in a minimum mandatory sentence that is not less than 25 years, nor more than life. In Florida, the court does not have the authority to impose a sentence that is less than the applicable minimum mandatory, except in the rarest of circumstances (i.e. where the accused is a youthful offender or, in drug cases, where the accused has provided substantial assistance to law enforcement).

In 2014, the 10-20-Life statute was amended to allow the court to avoid the otherwise applicable minimum mandatory sentence if it made certain findings on the record. This represents another very rare circumstance under which the otherwise applicable min man can be avoided, and it applies only to aggravated assault offenses. There is no similar exception for any other offense enumerated in 10-20-Life. Section 775.087(6)(the new provision), states as follows: "Notwithstanding s. 27.366, the sentencing court shall not [emphasis added] impose the mandatory minimum sentence required by subsection (2) or (3) for a conviction for aggravated assault if the court makes written findings that: (a) The defendant had a good faith belief that the aggravated assault was justifiable pursuant to chapter 776; (b) The aggravated assault was not committed in the course of committing another criminal offense; (c) The defendant does not pose a threat to public safety; (d) the totality of the circumstances involved in the offense do not justify the imposition of such sentence".

Subparagraph (b) through (d) are self explanatory. Subparagraph (a) makes reference to chapter 776 and requires a finding by the court that defendants' conduct met the criteria set forth therein. Chapter 776 deals with the justifiable use of force. A person is justified in using force to protect themselves, their property, or another under certain circumstances. The circumstances under which a person is justified in using deadly force differ from those under which a person is justified in using non-deadly force. Use of force is beyond the scope of this post, but you can get more information by viewing the "Use of Force" section of our website.

10-20-Life is severe. Possessing or discharging a firearm during the commission of a crime in Florida can have devastating implications for an accused person. 775.087 makes some important exceptions for aggravated assault, as you can see. Legislative authorization to a court, to avoid a min. man., is rare. The recently enacted provision of 10-20-Life can be of tremendous potential benefit to a person who is accused of committing aggravated assault with a firearm, where there is evidence of legal justification.

Categories: Criminal Defense