The Aggravated Assault Exceptions to 10-20-Life: 2016 Updates

In our November, 2015 post, we examined the unique position aggravated assault held under Florida's 10-20-Life statute. To briefly recap: In accordance with section 775.087 (also known as "10-20-Life"), 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 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 possessing a firearm during the commission of the crime, was ten years. The statute carved out an exception for aggravated assault, burglary to a conveyance, and felon in possession of a firearm: there, the minimum mandatory sentence for possessing a firearm during the commission of the crime was three years, not ten. Where the person discharged the firearm during the commission of the offense, the applicable minimum mandatory was twenty years. If the discharge resulted in death or great bodily harm to another, the applicable minimum mandatory sentence was twenty-five years to life. Our prior blog post can be read here: The Aggravated Assault Exceptions to 10-20-Life (for additional information, see the Aggravated Assault and 10-20-Life sections of our website).

In 2014, the Florida legislature amended the 10-20-Life statute to allow the court to avoid the otherwise applicable minimum mandatory sentence, with regard to aggravated assault charges, if the court made the following findings: (1) the defendant had a good faith belief that the aggravated assault was justifiable (under Florida statutes chapter 776); (2) the aggravated assault was not committed in the course of committing another criminal offense; (3) the defendant did not pose a threat to the public safety; and (4) the totality of the circumstances involved in the offense did not justify the imposition of such sentence. Under most circumstances, the court does not have the authority to deviate from a minimum mandatory sentence; only the State Attorney can do that. By adding subsection (6) to 775.087, the legislature gave the court authority to avoid imposition of the otherwise applicable minimum mandatory sentence where the statutorily enumerated criteria were met. The legislative delegation of authority to the courts, involving discretion in minimum mandatory sentencing, is very rare. There were just too many instances, it seems, where judges were being forced to sentence people to three years in prison where it appeared that the accused was defending himself or herself from a bona fide threat of harm, or where the totality of the circumstances did not otherwise warrant it. The issue was only made worse where the accused person fired a warning shot, as the minimum mandatory sentence was, in that instance, twenty years - not three.

You may recall reading about the 2010 case of Marissa Alexander from Jacksonville, Florida, which garnered national attention. Ms. Alexander (who had no prior criminal record) fired a warning shot at her allegedly abusive husband, whose two children were in the immediate vicinity, and was thereafter charged with three counts of aggravated assault. Because the offense involved actual discharge of a firearm, Ms. Alexander was facing a substantial minimum mandatory sentence under 10-20-Life (actual discharge requires the imposition of a twenty year min. man.). Her defense was that she was justified in the use of force under Florida's "Stand Your Ground Law". Following an unsuccessful motion to dismiss (under Stand Your Ground, based on immunity from prosecution), she rejected a plea deal involving a three year prison sentence and elected to take the case to trial. Ms. Alexander was found guilty by a jury and the court, having no choice, imposed a twenty year sentence.

The conviction was reversed, based on issues related to the jury instructions, and the matter was remanded for a new trial. The appellate court also held that each of the three minimum mandatories were to be imposed consecutively, upon conviction, based on the plain language of 10-20-Life as it relates to sentencing on multiple counts. Hence, Ms. Alexander was facing the prospect of a sixty year sentence. This time, she accepted the three year plea deal which, by then, she had already served. A sixty year sentence was tantamount to a life sentence for this 34 year old woman and to many, utterly incorrigible, given her lack of criminal history, the lack of injuries, and her seemingly viable assertions of justification. It was these types of scenarios that led to the 2014 amendments to the 10-20-Life statute and more sweeping changes just this year.

Senate Bill 228, which was signed by Governor Rick Scott in January eliminates the minimum mandatory sentences for aggravated assault in the 10-20-Life statute by completely deleting aggravated assault from the list of crimes to which 10-20-Life applies. As a result, persons who are convicted of only an aggravated assault offense (and not some other offense to which 10-20-Life applies as well) will no longer qualify for the 10-20-Life penalties (the bill repeals the exception for sentencing in aggravated assault cases enacted in 2014 that are referenced above, as a person convicted only of aggravated assault, to reiterate, will no longer qualify for 10-20-Life sentencing).

You should know that the new law does not apply retroactively - it does not affect those who are already serving serving minimum mandatory sentences for aggravated assault crimes under the pre-2016 version of 10-20-Life. It should also be noted that the change does not affect guideline sentencing. Minimum mandatory sentences and guideline sentences are two different things. A single count of aggravated assault will not, in and of itself, score mandatory prison on Florida's sentencing guidelines. Multiple counts of aggravated assault, or other and more serious charges before the court for sentencing, will. A person may also be facing a mandatory guideline sentence for a single count of aggravated assault where he or she has a significant prior history of felony offenses. While the court is no longer constricted by the applicable minimum mandatory sentences associated with aggravated assault charges, the court may still be bound by the applicable guideline range. In most instances, however, the guidelines are not nearly as draconian as the applicable min. mans., particularly where multiple counts are alleged, or where actual discharge is alleged.

This change to 10-20-Life is long overdue. There were just too many instances where an otherwise law abiding person "used a gun" and was, by all accounts, "done". The court had no discretion to take into account the surrounding circumstances or the person's prior criminal history and the sentences were at times grossly disproportionate to the crime. The restoration of judicial discretion in these types of cases is a welcome change for many.

Categories: Criminal Defense