| 1 | A bill to be entitled |
| 2 | An act relating to weapons and firearms; creating s. |
| 3 | 790.222, F.S.; defining the terms "assault weapon" and |
| 4 | "large-capacity detachable magazine"; prohibiting the |
| 5 | manufacture, importation, possession, purchase, sale, or |
| 6 | transfer of an assault weapon or large-capacity detachable |
| 7 | magazine; providing certain specified exceptions; |
| 8 | providing that a knowing violation of the act is a felony |
| 9 | of the second degree; providing penalties; requiring the |
| 10 | seizure and forfeiture of assault weapons and magazines |
| 11 | held in violation of the act or used in committing a |
| 12 | crime; requiring that seized weapons and magazines be |
| 13 | destroyed within a certain time period; authorizing |
| 14 | specified grace periods during which a person may lawfully |
| 15 | transfer an assault weapon or magazine or take certain |
| 16 | other actions; granting immunity from prosecution if a |
| 17 | person notifies a law enforcement agency that the person |
| 18 | will voluntarily surrender an assault weapon or magazine; |
| 19 | requiring licensed firearms dealers to post a notice of |
| 20 | the provisions of the act and the criminal penalties |
| 21 | imposed for a violation of the act; amending s. 775.087, |
| 22 | F.S.; increasing the minimum terms of imprisonment imposed |
| 23 | for possessing, discharging, or seriously harming another |
| 24 | with a semiautomatic firearm and its high-capacity |
| 25 | detachable box magazine or with a machine gun; authorizing |
| 26 | the court to impose an additional fine against a person |
| 27 | whose felony conviction is reclassified under certain |
| 28 | specified circumstances because of the person's possession |
| 29 | of a semiautomatic firearm and its high-capacity |
| 30 | detachable box magazine or a machine gun; amending s. |
| 31 | 790.07, F.S.; providing that it is a second-degree felony |
| 32 | to possess a firearm while committing or attempting to |
| 33 | commit a felony; providing a first-degree felony penalty |
| 34 | for second or subsequent violation; providing effective |
| 35 | dates. |
| 36 |
|
| 37 | WHEREAS, the United States Congress passed, and the |
| 38 | President of the United States signed into law, the Federal |
| 39 | Assault Weapons Act on September 13, 1994, which prohibited the |
| 40 | use and possession of assault weapons, and |
| 41 | WHEREAS, this ban expired on September 13, 2004, as |
| 42 | Congress did not renew it, although President George W. Bush |
| 43 | agreed to sign the law if passed, and |
| 44 | WHEREAS, as a result of the expiration of the ban, UZI's, |
| 45 | AK-47's, and other semiautomatic weapons are now available for |
| 46 | purchase and possession in this state, and |
| 47 | WHEREAS, a Miami-Dade police officer was shot with a |
| 48 | semiautomatic assault weapon the day before the federal assault |
| 49 | weapon ban expired, and |
| 50 | WHEREAS, according to the United States Bureau of Justice |
| 51 | Statistics, in 2003, nine states regulated assault weapons, 38 |
| 52 | states regulated machine guns, and 40 states regulated short- |
| 53 | barreled shotguns, and |
| 54 | WHEREAS, according to the United States Bureau of Alcohol, |
| 55 | Tobacco, Firearms and Explosives, assault weapons are preferred |
| 56 | by criminals rather than by law-abiding citizens eight to one, |
| 57 | NOW, THEREFORE, |
| 58 |
|
| 59 | Be It Enacted by the Legislature of the State of Florida: |
| 60 |
|
| 61 | Section 1. Effective January 1, 2006, section 790.222, |
| 62 | Florida Statutes, is created to read: |
| 63 | 790.222 Assault weapons and magazines; restrictions on |
| 64 | transfer and possession.-- |
| 65 | (1) DEFINITIONS.--As used in this section, the term: |
| 66 | (a) "Assault weapon" has the same meaning as provided in |
| 67 | chapter 44 (commencing with s. 921) of Title 18 of the United |
| 68 | States Code Annotated. |
| 69 | (b) "Large-capacity detachable magazine" or "magazine" |
| 70 | means any ammunition-feeding device the function of which is to |
| 71 | deliver one or more ammunition cartridges into the firing |
| 72 | chamber, which can be removed from the firearm without the use |
| 73 | of any tool and which has the capacity to hold more than 10 |
| 74 | rounds of ammunition. |
| 75 | (2) PROHIBITION.--Notwithstanding any other law to the |
| 76 | contrary, effective January 1, 2006, a person may not |
| 77 | manufacture, import, possess, purchase, sell, or transfer any |
| 78 | assault weapon or large-capacity detachable magazine, except as |
| 79 | specifically authorized in subsection (3) or subsection (6). |
| 80 | (3) EXCEPTIONS TO THE PROHIBITION.--Subsection (2) does |
| 81 | not apply to: |
| 82 | (a) A person who is employed by a federal, state, county, |
| 83 | or municipal law enforcement agency or a correctional agency |
| 84 | where the assault weapon or magazine is for use in the |
| 85 | performance of the person's lawful duties; |
| 86 | (b) A person who is a member of the armed forces of the |
| 87 | United States, the organized reserves, or the Florida National |
| 88 | Guard while on official military duty, in authorized training |
| 89 | for official military duty, or subject to recall or mobilization |
| 90 | and under order to possess an assault weapon or magazine; |
| 91 | (c) A firearms manufacturer or dealer that is properly |
| 92 | licensed under federal and state law to supply assault weapons |
| 93 | or magazines to any branch of the armed services of the United |
| 94 | States or to a law enforcement agency in this state; or |
| 95 | (d) A licensed firearms dealer who sells a lawfully |
| 96 | possessed assault weapon or magazine to a licensed firearms |
| 97 | dealer in another state. |
| 98 | (4) PENALTIES.--A person who knowingly violates subsection |
| 99 | (2) commits a felony of the second degree, punishable as |
| 100 | provided in s. 775.082, s. 775.083, or s. 775.084. |
| 101 | (5) SEIZURE AND FORFEITURE OF ASSAULT WEAPONS.-- |
| 102 | (a) An officer who makes an arrest for a violation of |
| 103 | subsection (2) or for any offense involving the use or attempted |
| 104 | use of an assault weapon or magazine shall take possession of |
| 105 | the assault weapon or magazine and retain it until after |
| 106 | disposition of the charge for which the person was arrested. |
| 107 | (b) If the person arrested is convicted or found guilty, |
| 108 | regardless of adjudication, of a violation of subsection (2) or |
| 109 | an offense involving the use or attempted use of an assault |
| 110 | weapon or magazine, the seized assault weapon or magazine is |
| 111 | forfeited to the state, with or without an order of forfeiture, |
| 112 | and must be handled as provided in paragraph (e). |
| 113 | (c) If the person arrested is acquitted of the charge of |
| 114 | violating subsection (2) or an offense involving the use or |
| 115 | attempted use of an assault weapon or magazine, the seized |
| 116 | assault weapon or magazine: |
| 117 | 1. Must be returned to the person upon order of the court |
| 118 | if the person demonstrates lawful ownership or possession of the |
| 119 | assault weapon or magazine in accordance with state and federal |
| 120 | law. |
| 121 | 2. Is forfeited to the state, with or without an order of |
| 122 | forfeiture, and must be handled as provided in paragraph (e), if |
| 123 | the person fails to demonstrate to the court lawful ownership or |
| 124 | possession of the assault weapon or magazine in accordance with |
| 125 | state and federal law within 10 days after acquittal or |
| 126 | dismissal of the charges. |
| 127 | (d) If an assault weapon or magazine is in or comes into |
| 128 | the possession of a law enforcement agency through capture, |
| 129 | confiscation, surrender, abandonment, or rejection, or is left |
| 130 | and not reclaimed, the assault weapon or magazine is forfeited |
| 131 | to the state on January 31, 2006, or within 30 days after it |
| 132 | comes into the law enforcement agency's possession, whichever |
| 133 | occurs later, with or without an order of forfeiture, and must |
| 134 | be handled as provided in paragraph (e). |
| 135 | (e) An assault weapon or magazine that is forfeited to the |
| 136 | state must be destroyed within 60 days after the date it is |
| 137 | forfeited to the state. |
| 138 | (6) GRACE PERIODS.--The prohibition on the transfer and |
| 139 | possession of an assault weapon or magazine as provided in this |
| 140 | section takes effect January 1, 2006, except that: |
| 141 | (a) Any person who had lawful possession of an assault |
| 142 | weapon or magazine in this state before January 1, 2006, has |
| 143 | until July 1, 2006, to: |
| 144 | 1. Lawfully transfer the assault weapon or magazine to a |
| 145 | person outside this state or to an agency that may lawfully |
| 146 | possess an assault weapon or magazine; |
| 147 | 2. Have the assault weapon or magazine modified to render |
| 148 | it permanently inoperable; or |
| 149 | 3. Take other action to ensure that continued possession |
| 150 | of the assault weapon or magazine is not in violation of state |
| 151 | or federal law. |
| 152 | (b) Any person who comes into lawful possession of a |
| 153 | lawfully held assault weapon or magazine on or after January 1, |
| 154 | 2006, has 60 days after the date of obtaining possession of the |
| 155 | assault weapon or magazine to: |
| 156 | 1. Lawfully transfer the assault weapon or magazine to a |
| 157 | person outside this state or to an agency that may lawfully |
| 158 | possess an assault weapon or magazine; |
| 159 | 2. Have the assault weapon or magazine modified to render |
| 160 | it permanently inoperable; or |
| 161 | 3. Take other action to ensure that continued possession |
| 162 | of the assault weapon or magazine is not in violation of state |
| 163 | or federal law. |
| 164 |
|
| 165 | As used in this paragraph, the term "lawful possession of a |
| 166 | lawfully held assault weapon or magazine" includes an assault |
| 167 | weapon or magazine that is obtained through an estate, a gift, a |
| 168 | bequeathal, or an inheritance. |
| 169 | (7) IMMUNITY FROM PROSECUTION IF AN ASSAULT WEAPON IS |
| 170 | VOLUNTARILY SURRENDERED.-- |
| 171 | (a) A person who voluntarily surrenders an unlawfully |
| 172 | possessed assault weapon or magazine in accordance with this |
| 173 | subsection to a local or state law enforcement agency after |
| 174 | giving the agency written notice of the intention to surrender |
| 175 | the weapon or magazine and the date and time of the intended |
| 176 | surrender is immune from prosecution for unlawful possession of |
| 177 | the weapon or magazine. |
| 178 | (b) The notice must specify the type of assault weapon or |
| 179 | magazine to be surrendered and the time, place, and date of the |
| 180 | surrender. The date of surrender may not be more than 1 week |
| 181 | after the date the notice is given. |
| 182 | (c) The assault weapon or magazine must be transported and |
| 183 | surrendered unloaded and secured in a manner so that it is not |
| 184 | readily accessible for use. |
| 185 | (d) Upon the request of the person surrendering an assault |
| 186 | weapon or magazine, the law enforcement agency receiving the |
| 187 | weapon or magazine shall issue a receipt for the weapon. In |
| 188 | surrendering the weapon or magazine, the person releases any |
| 189 | claim of ownership in or title to the weapon or magazine, agrees |
| 190 | to the forfeiture of the weapon to the state, and agrees for the |
| 191 | weapon or magazine to be destroyed as provided in paragraph |
| 192 | (5)(e). |
| 193 | (e) This subsection does not grant immunity from |
| 194 | prosecution for any offense other than unlawful possession of an |
| 195 | assault weapon or magazine surrendered in the required manner. |
| 196 | If, after notice has been given but before the weapon or |
| 197 | magazine is surrendered, the person uses or attempts to use the |
| 198 | weapon or magazine in committing a crime, the immunity from |
| 199 | prosecution for unlawful possession does not apply. |
| 200 | (8) NOTICE TO BE POSTED.--A licensed firearms dealer must |
| 201 | conspicuously post at each purchase counter a warning in block |
| 202 | letters of not less than 1 inch in height which provides |
| 203 | adequate notice of the time periods and criminal penalties |
| 204 | contained in this section. |
| 205 | Section 2. Subsection (3) of section 775.087, Florida |
| 206 | Statutes, is amended to read: |
| 207 | 775.087 Possession or use of weapon; aggravated battery; |
| 208 | felony reclassification; minimum sentence.-- |
| 209 | (3)(a)1. Any person who is convicted of a felony or an |
| 210 | attempt to commit a felony, regardless of whether the use of a |
| 211 | firearm is an element of the felony, and the conviction was for: |
| 212 | a. Murder; |
| 213 | b. Sexual battery; |
| 214 | c. Robbery; |
| 215 | d. Burglary; |
| 216 | e. Arson; |
| 217 | f. Aggravated assault; |
| 218 | g. Aggravated battery; |
| 219 | h. Kidnapping; |
| 220 | i. Escape; |
| 221 | j. Sale, manufacture, delivery, or intent to sell, |
| 222 | manufacture, or deliver any controlled substance; |
| 223 | k. Aircraft piracy; |
| 224 | l. Aggravated child abuse; |
| 225 | m. Aggravated abuse of an elderly person or disabled |
| 226 | adult; |
| 227 | n. Unlawful throwing, placing, or discharging of a |
| 228 | destructive device or bomb; |
| 229 | o. Carjacking; |
| 230 | p. Home-invasion robbery; |
| 231 | q. Aggravated stalking; or |
| 232 | r. Trafficking in cannabis, trafficking in cocaine, |
| 233 | capital importation of cocaine, trafficking in illegal drugs, |
| 234 | capital importation of illegal drugs, trafficking in |
| 235 | phencyclidine, capital importation of phencyclidine, trafficking |
| 236 | in methaqualone, capital importation of methaqualone, |
| 237 | trafficking in amphetamine, capital importation of amphetamine, |
| 238 | trafficking in flunitrazepam, trafficking in gamma- |
| 239 | hydroxybutyric acid (GHB), trafficking in 1,4-Butanediol, |
| 240 | trafficking in Phenethylamines, or other violation of s. |
| 241 | 893.135(1); |
| 242 |
|
| 243 | and during the commission of the offense, the such person |
| 244 | possessed a semiautomatic firearm and its high-capacity |
| 245 | detachable box magazine or a machine gun as defined in s. |
| 246 | 790.001, shall be sentenced to a minimum term of imprisonment of |
| 247 | 20 15 years. |
| 248 | 2. Any person who is convicted of a felony or an attempt |
| 249 | to commit a felony listed in subparagraph (a)1., regardless of |
| 250 | whether the use of a weapon is an element of the felony, and |
| 251 | during the course of the commission of the felony the such |
| 252 | person discharged a semiautomatic firearm and its high-capacity |
| 253 | box magazine or a "machine gun" as defined in s. 790.001 shall |
| 254 | be sentenced to a minimum term of imprisonment of 25 20 years. |
| 255 | 3. Any person who is convicted of a felony or an attempt |
| 256 | to commit a felony listed in subparagraph (a)1., regardless of |
| 257 | whether the use of a weapon is an element of the felony, and |
| 258 | during the course of the commission of the felony the such |
| 259 | person discharged a semiautomatic firearm and its high-capacity |
| 260 | box magazine or a "machine gun" as defined in s. 790.001 and, as |
| 261 | the result of the discharge, death or great bodily harm was |
| 262 | inflicted upon any person, the convicted person shall be |
| 263 | sentenced to a minimum term of imprisonment of not less than 30 |
| 264 | 25 years and not more than a term of imprisonment of life in |
| 265 | prison. |
| 266 | (b) Subparagraph (a)1., subparagraph (a)2., or |
| 267 | subparagraph (a)3. does not prevent a court from imposing a |
| 268 | longer sentence of incarceration as authorized by law in |
| 269 | addition to the minimum mandatory sentence, or from imposing a |
| 270 | sentence of death under pursuant to other applicable law. |
| 271 | Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3. |
| 272 | does not authorize a court to impose a lesser sentence than |
| 273 | otherwise required by law. |
| 274 |
|
| 275 | Notwithstanding s. 948.01, adjudication of guilt or imposition |
| 276 | of sentence may shall not be suspended, deferred, or withheld, |
| 277 | and the defendant is not eligible for statutory gain-time under |
| 278 | s. 944.275 or any form of discretionary early release, other |
| 279 | than pardon or executive clemency, or conditional medical |
| 280 | release under s. 947.149, prior to serving the minimum sentence. |
| 281 | (c) If the minimum mandatory terms of imprisonment imposed |
| 282 | under pursuant to this section exceed the maximum sentences |
| 283 | authorized by s. 775.082, s. 775.084, or the Criminal Punishment |
| 284 | Code under chapter 921, then the mandatory minimum sentence must |
| 285 | be imposed. If the mandatory minimum terms of imprisonment under |
| 286 | pursuant to this section are less than the sentences that could |
| 287 | be imposed as authorized by s. 775.082, s. 775.084, or the |
| 288 | Criminal Punishment Code under chapter 921, then the sentence |
| 289 | imposed by the court must include the mandatory minimum term of |
| 290 | imprisonment as required in this section. |
| 291 | (d) In addition to any other penalty provided by law, the |
| 292 | court may require any person whose felony conviction is |
| 293 | reclassified under subparagraph (a)1., subparagraph (a)2., or |
| 294 | subparagraph (a)3. to pay a fine of up to $25,000. |
| 295 | (e)(d) It is the intent of the Legislature that offenders |
| 296 | who possess, carry, display, use, threaten to use, or attempt to |
| 297 | use a semiautomatic firearm and its high-capacity detachable box |
| 298 | magazine or a machine gun as defined in s. 790.001 be punished |
| 299 | to the fullest extent of the law, and the minimum terms of |
| 300 | imprisonment imposed under pursuant to this subsection shall be |
| 301 | imposed for each qualifying felony count for which the person is |
| 302 | convicted. The court shall impose any term of imprisonment |
| 303 | provided for in this subsection consecutively to any other term |
| 304 | of imprisonment imposed for any other felony offense. |
| 305 | (f)(e) As used in this subsection, the term: |
| 306 | 1. "High-capacity detachable box magazine" means any |
| 307 | detachable box magazine, for use in a semiautomatic firearm, |
| 308 | which is capable of being loaded with more than 20 centerfire |
| 309 | cartridges. |
| 310 | 2. "Semiautomatic firearm" means a firearm which is |
| 311 | capable of firing a series of rounds by separate successive |
| 312 | depressions of the trigger and which uses the energy of |
| 313 | discharge to perform a portion of the operating cycle. |
| 314 | Section 3. Section 790.07, Florida Statutes, is amended to |
| 315 | read: |
| 316 | 790.07 Persons engaged in criminal offense, having |
| 317 | weapons.-- |
| 318 | (1) Whoever, while committing or attempting to commit any |
| 319 | felony or while under indictment, displays, uses, threatens, or |
| 320 | attempts to use any weapon or electric weapon or device or |
| 321 | carries a concealed weapon commits is guilty of a felony of the |
| 322 | third degree, punishable as provided in s. 775.082, s. 775.083, |
| 323 | or s. 775.084. |
| 324 | (2) Whoever, while committing or attempting to commit any |
| 325 | felony, possesses, displays, uses, threatens, or attempts to use |
| 326 | any firearm or carries a concealed firearm commits is guilty of |
| 327 | a felony of the second degree, punishable as provided in s. |
| 328 | 775.082, s. 775.083, and s. 775.084. |
| 329 | (3) The following crimes are excluded from application of |
| 330 | this section: Antitrust violations, unfair trade practices, |
| 331 | restraints of trade, nonsupport of dependents, bigamy, or other |
| 332 | similar offenses. |
| 333 | (4) Whoever, having previously been convicted of a |
| 334 | violation of subsection (1) or subsection (2) and, subsequent to |
| 335 | such conviction, possesses, displays, uses, threatens, or |
| 336 | attempts to use any weapon, firearm, or electric weapon or |
| 337 | device, carries a concealed weapon, or carries a concealed |
| 338 | firearm while committing or attempting to commit any felony or |
| 339 | while under indictment commits is guilty of a felony of the |
| 340 | first degree, punishable as provided in s. 775.082, s. 775.083, |
| 341 | or s. 775.084. Sentence may shall not be suspended or deferred |
| 342 | under the provisions of this subsection. |
| 343 | Section 4. Except as otherwise provided herein, this act |
| 344 | shall take effect July 1, 2005. |