Florida Senate - 2018 SENATOR AMENDMENT Bill No. CS for SB 7026 Ì296090(Î296090 LEGISLATIVE ACTION Senate . House . . . Floor: NC/2R . 03/03/2018 06:08 PM . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— Senator Farmer moved the following: 1 Senate Amendment (with title amendment) 2 3 Delete line 2114 4 and insert: 5 Section 46. Effective January 1, 2019, section 790.30, 6 Florida Statutes, is created to read: 7 790.30 Large-capacity magazines.— 8 (1) DEFINITIONS.—As used in this section, the term: 9 (a) “Large-capacity magazine” means any ammunition feeding 10 device with the capacity to accept more than 10 rounds, or any 11 conversion kit, part, or combination of parts from which such a 12 device can be assembled if those parts are in the possession or 13 under the control of the same person, but does not include any 14 of the following: 15 1. A feeding device that has been permanently altered so 16 that it cannot accommodate more than 7 rounds; 17 2. A .22 caliber tube ammunition feeding device; or 18 3. A tubular magazine that is contained in a lever-action 19 firearm. 20 (b) “Licensed gun dealer” means a person who has a federal 21 firearms license. 22 (2) SALE OR TRANSFER.— 23 (a) A person may not import into the state or, within this 24 state, distribute, transport, sell, keep for sale, offer or 25 expose for sale, or give a large-capacity magazine. Except as 26 provided in paragraph (b), any person who violates this 27 paragraph commits a felony of the third degree, punishable as 28 provided in s. 775.082, s. 775.083, or s. 775.084, with a 29 mandatory minimum term of imprisonment of 2 years. 30 (b) A person may not transfer, sell, or give a large 31 capacity magazine to a person under 18 years of age. Any person 32 who violates this paragraph commits a felony of the second 33 degree, punishable as provided in s. 775.082, s. 775.083, or s. 34 775.084, with a mandatory minimum term of imprisonment of 6 35 years. 36 (c) Paragraph (a) does not apply to: 37 1. The sale of large-capacity magazines to the Department 38 of Law Enforcement, to a law enforcement agency as defined in s. 39 934.02, to the Department of Corrections, or to the military, 40 air, or naval forces of this state or the United States for use 41 in the discharge of their official duties. 42 2. A person who is the executor or administrator of an 43 estate that includes a large-capacity magazine for which a 44 certificate of possession has been issued under subsection (4) 45 which is disposed of as authorized by the probate court, if the 46 disposition is otherwise authorized under this section. 47 3. The transfer by bequest or intestate succession of a 48 large-capacity magazine for which a certificate of possession 49 has been issued under subsection (4). 50 (3) POSSESSION.— 51 (a) Except as provided in subsection (5) or otherwise 52 provided in this section or authorized by any other law, a 53 person may not, within this state, possess a large-capacity 54 magazine. Any person who violates this paragraph commits a 55 felony of the third degree, punishable as provided in s. 56 775.082, s. 775.083, or s. 775.084, with a mandatory minimum 57 term of imprisonment of 1 year. 58 (b) Paragraph (a) does not apply to the possession of a 59 large-capacity magazine by a member or employee of the 60 Department of Law Enforcement, a law enforcement agency as 61 defined in s. 934.02, the Department of Corrections, or the 62 military, air, or naval forces of this state or of the United 63 States for use in the discharge of his or her official duties; 64 nor does this section prohibit the possession or use of a large 65 capacity magazine by a sworn member of one of these agencies 66 when on duty and the use is within the scope of his or her 67 duties. 68 (c) Paragraph (a) does not apply to the possession of a 69 large-capacity magazine by any person before July 1, 2019, if 70 all of the following are applicable: 71 1. The person is eligible to apply for a certificate of 72 possession for the large-capacity magazine by July 1, 2019; 73 2. The person lawfully possessed the large-capacity 74 magazine before October 1, 2018; and 75 3. The person is otherwise in compliance with this section 76 and the applicable requirements of this chapter for possession 77 of a firearm. 78 (d) Paragraph (a) does not apply to a person who is the 79 executor or administrator of an estate that includes a large 80 capacity magazine for which a certificate of possession has been 81 issued under subsection (4), if the large-capacity magazine is 82 possessed at a place set forth in subparagraph (4)(c)1. or as 83 authorized by the probate court. 84 (4) CERTIFICATE OF POSSESSION.— 85 (a) Any person who lawfully possesses a large-capacity 86 magazine before October 1, 2018, shall apply by October 1, 2019, 87 or, if such person is a member of the military or naval forces 88 of this state or of the United States and cannot apply by 89 October 1, 2019, because he or she is or was on official duty 90 outside this state, shall apply within 90 days after returning 91 to the state, to the Department of Law Enforcement for a 92 certificate of possession with respect to such large-capacity 93 magazine. The certificate must contain a description of the 94 large-capacity magazine which identifies the large-capacity 95 magazine uniquely, including all identification marks; the full 96 name, address, date of birth, and thumbprint of the owner; and 97 any other information as the department may deem appropriate. 98 The department shall adopt rules no later than January 1, 2019, 99 to establish procedures with respect to the application for, and 100 issuance of, certificates of possession under this section. 101 (b)1. A large-capacity magazine lawfully possessed in 102 accordance with this section may not be sold or transferred on 103 or after January 1, 2019, to any person within this state other 104 than to a licensed gun dealer, as provided in subsection (5), or 105 by a bequest or intestate succession. 106 2. A person who obtains title to a large-capacity magazine 107 for which a certificate of possession has been issued under this 108 subsection shall, within 90 days after obtaining title, apply to 109 the Department of Law Enforcement for a certificate of 110 possession, render the large-capacity magazine permanently 111 inoperable, sell the large-capacity magazine to a licensed gun 112 dealer, or remove the large-capacity magazine from the state. 113 3. A person who moves into the state and who is in lawful 114 possession of a large-capacity magazine, shall, within 90 days, 115 either render the large-capacity magazine permanently 116 inoperable, sell the large-capacity magazine to a licensed gun 117 dealer, or remove the large-capacity magazine from this state, 118 unless the person is a member of the military, air, or naval 119 forces of this state or of the United States, is in lawful 120 possession of a large-capacity magazine, and has been 121 transferred into the state after October 1, 2019. 122 (c) A person who has been issued a certificate of 123 possession for a large-capacity magazine under this subsection 124 may possess it only if the person is: 125 1. At the residence, the place of business, or any other 126 property owned by that person, or on a property owned by another 127 person with the owner’s express permission; 128 2. On the premises of a target range of a public or private 129 club or organization organized for the purpose of practicing 130 shooting at targets; 131 3. On a target range that holds a regulatory or business 132 license for the purpose of practicing shooting at that target 133 range; 134 4. On the premises of a licensed shooting club; 135 5. Attending an exhibition, display, or educational project 136 on firearms which is sponsored by, conducted under the auspices 137 of, or approved by a law enforcement agency or a nationally or 138 state-recognized entity that fosters proficiency in, or promotes 139 education about, firearms; or 140 6. Transporting the large-capacity magazine between any of 141 the places mentioned in this paragraph, or from or to any 142 licensed gun dealer for servicing or repair pursuant to 143 paragraph (7)(b), provided the large-capacity magazine is 144 transported as required by subsection (7). 145 (5) CERTIFICATE OF TRANSFER.—If an owner of a large 146 capacity magazine sells or transfers the magazine to a licensed 147 gun dealer, he or she shall, at the time of delivery of the 148 magazine, execute a certificate of transfer and cause the 149 certificate to be mailed or delivered to the Department of Law 150 Enforcement. The certificate must contain: 151 (a) The date of sale or transfer. 152 (b) The name and address of the seller or transferor and 153 the licensed gun dealer and their social security numbers or 154 driver license numbers. 155 (c) The licensed gun dealer’s federal firearms license 156 number. 157 (d) Any other information the Department of Law Enforcement 158 prescribes. 159 160 The licensed gun dealer shall present his or her driver license 161 or social security card and federal firearms license to the 162 seller or transferor for inspection at the time of purchase or 163 transfer. The Department of Law Enforcement shall maintain a 164 file of all certificates of transfer at its headquarters. 165 (6) RELINQUISHMENT.—An individual may arrange in advance to 166 relinquish a large-capacity magazine to a law enforcement agency 167 as defined in s. 934.02 or the Department of Law Enforcement. 168 The large-capacity magazine shall be transported in accordance 169 with subsection (7). 170 (7) TRANSPORTATION.— 171 (a) A licensed gun dealer who lawfully purchases for resale 172 a large-capacity magazine under this section may transport the 173 large-capacity magazine between licensed gun dealers or out of 174 this state, but a person may not carry a large-capacity magazine 175 concealed from public view, unless such large-capacity magazine 176 is kept in the trunk of such vehicle or in a case or other 177 container that is inaccessible to the operator of or any 178 passenger in such vehicle. Any person who violates this 179 paragraph commits a misdemeanor of the second degree, punishable 180 as provided in s. 775.082 or s. 775.083. Any licensed gun dealer 181 may display the large-capacity magazine at any gun show or sell 182 it to a resident outside this state. 183 (b) Any licensed gun dealer may transfer possession of any 184 large-capacity magazine received pursuant to paragraph (a) to a 185 gunsmith for purposes of accomplishing service or repair of the 186 same. Transfers are permissible only to a gunsmith who is: 187 1. In the licensed gun dealer’s employ; or 188 2. Contracted by the licensed gun dealer for gunsmithing 189 services, provided the gunsmith holds a dealer’s license issued 190 pursuant to chapter 44 of Title 18 the United States Code, 18 191 U.S.C. ss. 921 et seq., and the regulations issued pursuant 192 thereto. 193 (8) CIRCUMSTANCES IN WHICH MANUFACTURE OR TRANSPORTATION 194 NOT PROHIBITED.—This section does not prohibit any person, firm, 195 or corporation engaged in the business of manufacturing large 196 capacity magazines in this state from manufacturing or 197 transporting large-capacity magazines in this state for sale 198 within this state in accordance with subparagraph (2)(c)1. or 199 for sale outside this state. 200 (9) EXCEPTION.—This section does not apply to any magazine 201 modified to render it permanently inoperable. 202 Section 47. Effective January 1, 2019, paragraph (a) of 203 subsection (3) of section 775.087, Florida Statutes, is amended 204 to read: 205 775.087 Possession or use of weapon; aggravated battery; 206 felony reclassification; minimum sentence.— 207 (3)(a)1. Any person who is convicted of a felony or an 208 attempt to commit a felony, regardless of whether the use of a 209 firearm is an element of the felony, and the conviction was for: 210 a. Murder; 211 b. Sexual battery; 212 c. Robbery; 213 d. Burglary; 214 e. Arson; 215 f. Aggravated battery; 216 g. Kidnapping; 217 h. Escape; 218 i. Sale, manufacture, delivery, or intent to sell, 219 manufacture, or deliver any controlled substance; 220 j. Aircraft piracy; 221 k. Aggravated child abuse; 222 l. Aggravated abuse of an elderly person or disabled adult; 223 m. Unlawful throwing, placing, or discharging of a 224 destructive device or bomb; 225 n. Carjacking; 226 o. Home-invasion robbery; 227 p. Aggravated stalking; or 228 q. Trafficking in cannabis, trafficking in cocaine, capital 229 importation of cocaine, trafficking in illegal drugs, capital 230 importation of illegal drugs, trafficking in phencyclidine, 231 capital importation of phencyclidine, trafficking in 232 methaqualone, capital importation of methaqualone, trafficking 233 in amphetamine, capital importation of amphetamine, trafficking 234 in flunitrazepam, trafficking in gamma-hydroxybutyric acid 235 (GHB), trafficking in 1,4-Butanediol, trafficking in 236 Phenethylamines, or other violation of s. 893.135(1); 237 238 and during the commission of the offense, such person possessed 239 a semiautomatic firearm and its high-capacity detachable box 240 magazine, or a large-capacity magazine as defined in s. 790.30, 241 or a machine gun as defined in s. 790.001, shall be sentenced to 242 a minimum term of imprisonment of 15 years. 243 2. Any person who is convicted of a felony or an attempt to 244 commit a felony listed in subparagraph (a)1., regardless of 245 whether the use of a weapon is an element of the felony, and 246 during the course of the commission of the felony such person 247 discharged a semiautomatic firearm and its high-capacity box 248 magazine, or a large-capacity magazine as defined in s. 790.30, 249 or a “machine gun” as defined in s. 790.001 shall be sentenced 250 to a minimum term of imprisonment of 20 years. 251 3. Any person who is convicted of a felony or an attempt to 252 commit a felony listed in subparagraph (a)1., regardless of 253 whether the use of a weapon is an element of the felony, and 254 during the course of the commission of the felony such person 255 discharged a semiautomatic firearm and its high-capacity box 256 magazine, or a large-capacity magazine as defined in s. 790.30, 257 or a “machine gun” as defined in s. 790.001 and, as the result 258 of the discharge, death or great bodily harm was inflicted upon 259 any person, the convicted person shall be sentenced to a minimum 260 term of imprisonment of not less than 25 years and not more than 261 a term of imprisonment of life in prison. 262 Section 48. For the purpose of incorporating the amendment 263 made by this act to section 775.087, Florida Statutes, in a 264 reference thereto, section 27.366, Florida Statutes, is 265 reenacted to read: 266 27.366 Legislative intent and policy in cases meeting 267 criteria of s. 775.087(2) and (3).—It is the intent of the 268 Legislature that convicted criminal offenders who meet the 269 criteria in s. 775.087(2) and (3) be sentenced to the minimum 270 mandatory prison terms provided therein. It is the intent of the 271 Legislature to establish zero tolerance of criminals who use, 272 threaten to use, or avail themselves of firearms in order to 273 commit crimes and thereby demonstrate their lack of value for 274 human life. It is also the intent of the Legislature that 275 prosecutors should appropriately exercise their discretion in 276 those cases in which the offenders’ possession of the firearm is 277 incidental to the commission of a crime and not used in 278 furtherance of the crime, used in order to commit the crime, or 279 used in preparation to commit the crime. For every case in which 280 the offender meets the criteria in this act and does not receive 281 the mandatory minimum prison sentence, the state attorney must 282 explain the sentencing deviation in writing and place such 283 explanation in the case file maintained by the state attorney. 284 Section 49. For the purpose of incorporating the amendment 285 made by this act to section 775.087, Florida Statutes, in a 286 reference thereto, paragraph (b) of subsection (1) of section 287 921.0024, Florida Statutes, is reenacted to read: 288 921.0024 Criminal Punishment Code; worksheet computations; 289 scoresheets.— 290 (1) 291 (b) WORKSHEET KEY: 292 293 Legal status points are assessed when any form of legal status 294 existed at the time the offender committed an offense before the 295 court for sentencing. Four (4) sentence points are assessed for 296 an offender’s legal status. 297 298 Community sanction violation points are assessed when a 299 community sanction violation is before the court for sentencing. 300 Six (6) sentence points are assessed for each community sanction 301 violation and each successive community sanction violation, 302 unless any of the following apply: 303 1. If the community sanction violation includes a new 304 felony conviction before the sentencing court, twelve (12) 305 community sanction violation points are assessed for the 306 violation, and for each successive community sanction violation 307 involving a new felony conviction. 308 2. If the community sanction violation is committed by a 309 violent felony offender of special concern as defined in s. 310 948.06: 311 a. Twelve (12) community sanction violation points are 312 assessed for the violation and for each successive violation of 313 felony probation or community control where: 314 I. The violation does not include a new felony conviction; 315 and 316 II. The community sanction violation is not based solely on 317 the probationer or offender’s failure to pay costs or fines or 318 make restitution payments. 319 b. Twenty-four (24) community sanction violation points are 320 assessed for the violation and for each successive violation of 321 felony probation or community control where the violation 322 includes a new felony conviction. 323 324 Multiple counts of community sanction violations before the 325 sentencing court shall not be a basis for multiplying the 326 assessment of community sanction violation points. 327 328 Prior serious felony points: If the offender has a primary 329 offense or any additional offense ranked in level 8, level 9, or 330 level 10, and one or more prior serious felonies, a single 331 assessment of thirty (30) points shall be added. For purposes of 332 this section, a prior serious felony is an offense in the 333 offender’s prior record that is ranked in level 8, level 9, or 334 level 10 under s. 921.0022 or s. 921.0023 and for which the 335 offender is serving a sentence of confinement, supervision, or 336 other sanction or for which the offender’s date of release from 337 confinement, supervision, or other sanction, whichever is later, 338 is within 3 years before the date the primary offense or any 339 additional offense was committed. 340 341 Prior capital felony points: If the offender has one or more 342 prior capital felonies in the offender’s criminal record, points 343 shall be added to the subtotal sentence points of the offender 344 equal to twice the number of points the offender receives for 345 the primary offense and any additional offense. A prior capital 346 felony in the offender’s criminal record is a previous capital 347 felony offense for which the offender has entered a plea of nolo 348 contendere or guilty or has been found guilty; or a felony in 349 another jurisdiction which is a capital felony in that 350 jurisdiction, or would be a capital felony if the offense were 351 committed in this state. 352 353 Possession of a firearm, semiautomatic firearm, or machine gun: 354 If the offender is convicted of committing or attempting to 355 commit any felony other than those enumerated in s. 775.087(2) 356 while having in his or her possession: a firearm as defined in 357 s. 790.001(6), an additional eighteen (18) sentence points are 358 assessed; or if the offender is convicted of committing or 359 attempting to commit any felony other than those enumerated in 360 s. 775.087(3) while having in his or her possession a 361 semiautomatic firearm as defined in s. 775.087(3) or a machine 362 gun as defined in s. 790.001(9), an additional twenty-five (25) 363 sentence points are assessed. 364 365 Sentencing multipliers: 366 367 Drug trafficking: If the primary offense is drug trafficking 368 under s. 893.135, the subtotal sentence points are multiplied, 369 at the discretion of the court, for a level 7 or level 8 370 offense, by 1.5. The state attorney may move the sentencing 371 court to reduce or suspend the sentence of a person convicted of 372 a level 7 or level 8 offense, if the offender provides 373 substantial assistance as described in s. 893.135(4). 374 375 Law enforcement protection: If the primary offense is a 376 violation of the Law Enforcement Protection Act under s. 377 775.0823(2), (3), or (4), the subtotal sentence points are 378 multiplied by 2.5. If the primary offense is a violation of s. 379 775.0823(5), (6), (7), (8), or (9), the subtotal sentence points 380 are multiplied by 2.0. If the primary offense is a violation of 381 s. 784.07(3) or s. 775.0875(1), or of the Law Enforcement 382 Protection Act under s. 775.0823(10) or (11), the subtotal 383 sentence points are multiplied by 1.5. 384 385 Grand theft of a motor vehicle: If the primary offense is grand 386 theft of the third degree involving a motor vehicle and in the 387 offender’s prior record, there are three or more grand thefts of 388 the third degree involving a motor vehicle, the subtotal 389 sentence points are multiplied by 1.5. 390 391 Offense related to a criminal gang: If the offender is convicted 392 of the primary offense and committed that offense for the 393 purpose of benefiting, promoting, or furthering the interests of 394 a criminal gang as defined in s. 874.03, the subtotal sentence 395 points are multiplied by 1.5. If applying the multiplier results 396 in the lowest permissible sentence exceeding the statutory 397 maximum sentence for the primary offense under chapter 775, the 398 court may not apply the multiplier and must sentence the 399 defendant to the statutory maximum sentence. 400 401 Domestic violence in the presence of a child: If the offender is 402 convicted of the primary offense and the primary offense is a 403 crime of domestic violence, as defined in s. 741.28, which was 404 committed in the presence of a child under 16 years of age who 405 is a family or household member as defined in s. 741.28(3) with 406 the victim or perpetrator, the subtotal sentence points are 407 multiplied by 1.5. 408 409 Adult-on-minor sex offense: If the offender was 18 years of age 410 or older and the victim was younger than 18 years of age at the 411 time the offender committed the primary offense, and if the 412 primary offense was an offense committed on or after October 1, 413 2014, and is a violation of s. 787.01(2) or s. 787.02(2), if the 414 violation involved a victim who was a minor and, in the course 415 of committing that violation, the defendant committed a sexual 416 battery under chapter 794 or a lewd act under s. 800.04 or s. 417 847.0135(5) against the minor; s. 787.01(3)(a)2. or 3.; s. 418 787.02(3)(a)2. or 3.; s. 794.011, excluding s. 794.011(10); s. 419 800.04; or s. 847.0135(5), the subtotal sentence points are 420 multiplied by 2.0. If applying the multiplier results in the 421 lowest permissible sentence exceeding the statutory maximum 422 sentence for the primary offense under chapter 775, the court 423 may not apply the multiplier and must sentence the defendant to 424 the statutory maximum sentence. 425 Section 50. For the purpose of incorporating the amendment 426 made by this act to section 775.087, Florida Statutes, in a 427 reference thereto, paragraph (b) of subsection (3) of section 428 947.146, Florida Statutes, is reenacted to read: 429 947.146 Control Release Authority.— 430 (3) Within 120 days prior to the date the state 431 correctional system is projected pursuant to s. 216.136 to 432 exceed 99 percent of total capacity, the authority shall 433 determine eligibility for and establish a control release date 434 for an appropriate number of parole ineligible inmates committed 435 to the department and incarcerated within the state who have 436 been determined by the authority to be eligible for 437 discretionary early release pursuant to this section. In 438 establishing control release dates, it is the intent of the 439 Legislature that the authority prioritize consideration of 440 eligible inmates closest to their tentative release date. The 441 authority shall rely upon commitment data on the offender 442 information system maintained by the department to initially 443 identify inmates who are to be reviewed for control release 444 consideration. The authority may use a method of objective risk 445 assessment in determining if an eligible inmate should be 446 released. Such assessment shall be a part of the department’s 447 management information system. However, the authority shall have 448 sole responsibility for determining control release eligibility, 449 establishing a control release date, and effectuating the 450 release of a sufficient number of inmates to maintain the inmate 451 population between 99 percent and 100 percent of total capacity. 452 Inmates who are ineligible for control release are inmates who 453 are parole eligible or inmates who: 454 (b) Are serving the mandatory minimum portion of a sentence 455 enhanced under s. 775.087(2) or (3), or s. 784.07(3); 456 457 In making control release eligibility determinations under this 458 subsection, the authority may rely on any document leading to or 459 generated during the course of the criminal proceedings, 460 including, but not limited to, any presentence or postsentence 461 investigation or any information contained in arrest reports 462 relating to circumstances of the offense. 463 Section 51. Except as otherwise expressly provided in this 464 act, this act shall take effect upon becoming a law. 465 466 ================= T I T L E A M E N D M E N T ================ 467 And the title is amended as follows: 468 Delete line 244 469 and insert: 470 providing appropriations; creating s. 790.30, F.S.; 471 defining terms; prohibiting the sale or transfer of a 472 large-capacity magazine; providing criminal penalties; 473 providing exceptions to the prohibition; prohibiting 474 possession of a large-capacity magazine; providing 475 criminal penalties; providing exceptions to the 476 prohibition; requiring a person who lawfully possessed 477 such a magazine before a specified date to obtain a 478 certificate of possession; providing requirements for 479 the certificate; requiring the Department of Law 480 Enforcement to adopt rules by a certain date; limiting 481 transfers of large-capacity magazines represented by 482 such certificates as of a specified date; providing 483 conditions for continued possession of such magazines; 484 requiring certificates of transfer for the sale or 485 transfer of such magazines; requiring that the 486 department maintain records of such sales or 487 transfers; providing for relinquishment of large 488 capacity magazines to law enforcement agencies or the 489 department; providing requirements for transportation 490 of large-capacity magazines; providing criminal 491 penalties for violations; specifying circumstances in 492 which the manufacture or transportation of large 493 capacity magazines is not prohibited; exempting 494 permanently inoperable magazines from all such 495 provisions; amending s. 775.087, F.S.; providing 496 enhanced criminal penalties for certain offenses 497 committed by persons with a large-capacity magazine; 498 reenacting ss. 27.366, 921.0024(1)(b), and 499 947.146(3)(b), F.S., relating to legislative intent 500 and policy in certain cases, the Criminal Punishment 501 Code worksheet key, and the Control Release Authority, 502 respectively, to incorporate the amendment made to s. 503 775.087, F.S., in references thereto; providing 504 effective dates.