____________________

BENCH MEMORANDUM
____________________

MATTER—Enhancement of penalty and reclassification of offense; Reclassification of offenses

and minimum mandatory sentencing under § 775.087, Fla. Stat.
AUTHOR—Hon. William H. Burgess, III
DATE—June 2, 2018
____________________

Table of Contents

I. General.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Reclassification of Offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Definition of “Weapon” for Purposes of Reclassification. . . . . . . . 4
B. Definition of “Use” for Purposes of Reclassification. . . . . . . . . . . . 8
III. Mandatory Minimums. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. Possession of a Firearm or Destructive Device. . . . . . . . . . . . . . . 11
B. Discharge of a Firearm or Destructive Device. . . . . . . . . . . . . . . . 12
C. Causing Death or Great Bodily Harm With a Firearm or Destructive
Device. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
D. Semiautomatic Firearm Possession, Discharge, or Causing Death or
Great Bodily Harm.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
IV. Jury Findings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
V. Overall Length of Sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
VI. Stacking.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
____________________

I. General.

Section 775.087, Fla. Stat., also known by many as the “10/20/Life law,” is a
reclassification of offense statute that also contains progressive minimum mandatory sentencing
provisions that are geared to specific offenses. For reclassification, the test is whether a
defendant either carried, displayed, used, threatened to use, or attempted to use any weapon or
firearm during the commission of a felony. For minimum mandatory sentencing, the test is
whether a defendant actually possessed or discharged a firearm or destructive device during the
commission or attempted commission of a certain enumerated felony, and whether discharge or
the firearm or destructive device caused death or serious bodily injury.

The “carries, displays, uses, threatens to use, or attempts to use” language of

reclassification in section 775.087(1) and the “actually possessed” language of mandatory
minimum sentencing in section 775.087(2)(a)1. are not interchangeable. In order to impose the
mandatory minimum sentence the State must allege in the Information that the defendant did
actually possess a firearm or destructive device and, to reclassify the level of offense where a
firearm is involved, the State must allege in the Information that during the commission or
attempted commission of the offense the defendant carried, displayed, used, threatened to use, or
attempted to use a weapon or firearm. As such, the language of section 775.087(1) cannot be
used on the verdict form for purposes of imposing the firearm/destructive device mandatory
minimum sentence and the language of section 775.087(2)(a) or (3)(a) cannot be used for
purposes of reclassification. This means, for example, that a jury finding that the defendant
actually possessed a firearm or destructive device cannot be used to reclassify the underlying
offense.1

II. Reclassification of Offense.

Pursuant to section 775.087(1), unless otherwise provided by law, whenever a defendant

is charged with a felony, except a felony in which the use of a weapon or firearm is an essential
element, and during the commission of such felony the defendant carries, displays, uses,
threatens to use, or attempts to use any weapon or firearm, or during the commission of such
felony the defendant commits an aggravated battery, the felony for which the person is charged is
reclassified. A felony of the first degree is reclassified to a life felony; a felony of the second
degree, to a felony of the first degree; and a felony of the third degree, to a felony of the second
degree. For purposes of sentencing under chapter 921, a felony offense which is so reclassified is
ranked one offense severity level above the ranking under section 921.0022, Fla. Stat., or section
921.0023, Fla. Stat., of the felony offense committed.2 Note, however, that one of the effects of
Heggs v. State,3 is that the one-level increases in offense severity for use of a firearm are not
applicable to a defendant who committed the charged offense within the window period of
October 1, 1995, and May 24, 1997.4

Section 775.087(1) precludes reclassification if the crime charged requires the use of a
weapon as one of its essential elements.5 As an example, although the penalty for aggravated
battery causing great bodily harm can be enhanced pursuant to section 775.087(1) because the
use of a weapon is not necessary to cause great bodily harm, the offense of aggravated battery
with the use of a deadly weapon is not subject to reclassification because the use of a weapon is
an essential element of the crime.6 Stated otherwise, aggravated battery can be committed in
alternative ways, such as by causing great bodily harm or by using a deadly weapon.7 As
indicated in section 775.087(1), a degree reclassification pertains when the offense is committed

1
Green v. State, 18 So. 3d 656 (Fla. 2d DCA 2009).
2
§ 775.087(1), Fla. Stat.
3
Heggs v. State, 759 So. 2d 620 (Fla. 2000).
4
Reid v. State, 799 So. 2d 394 (Fla. 4th DCA 2001).
5
See, Lareau v. State, 573 So. 2d 813 (Fla. 1991); Cargle v. State, 829 So. 2d 366 (Fla. 1st DCA 2002).
6
Davis v. State, 884 So. 2d 1058 (Fla. 2d DCA 2004); Crawford v. State, 858 So. 2d 1131 (Fla. 2d DCA
2003).
7
§ 784.045(1), Fla. Stat.

Judge Burgess Bench Memo re reclassification of offenses

2 and minimum mandatory sentencing under § 775.087, F.S.
with the use of a weapon, unless the use of the weapon is an essential element of the crime.
Where it is unclear whether the defendant was found guilty of aggravated battery based on great
bodily harm or the use of a deadly weapon, reclassification is not permitted.8 Where the jury
finds great bodily harm and the use of a deadly weapon and it cannot be determined whether the
conviction is based on one or the other, reclassification is precluded.9 Where, however, the jury
finds both great bodily harm and the use of a deadly weapon but it is clear that the aggravated
battery is independently established by the great bodily harm and the use of a deadly weapon is
not an essential element of the aggravated battery, the use of the weapon is an additional factor
which permits reclassification under section 775.087(1).10

Another example is where the defendant is convicted under section 790.19, Fla. Stat., of
shooting a deadly missile for shooting a firearm into a house.11 Similarly, the offense of
attempted armed robbery, which is a second-degree felony, cannot be punished as a first-degree
felony under section 775.087, Fla. Stat., because the use of a weapon is an essential element of
the offense.12 Use of a weapon does not, however, become an essential element of the offense,
thereby precluding reclassification under section 775.087(1), Fla. Stat., merely because it is
charged in the Information.13

8
Perry v. State, 858 So. 2d 1270 (Fla. 1st DCA 2003); Montgomery v. State, 704 So. 2d 548, 550–51 (Fla.
1st DCA 1997).
9
Cabral v. State, 944 So. 2d 1026 (Fla. 1st DCA 2006).
10
Hurry v. State, 978 So. 2d 854 (Fla. 1st DCA 2008), 12 So. 3d 752 (Fla. 2009), and rev. denied 23 So. 3d
110 (Fla. 2009).
11
Jefferson v. State, 927 So. 2d 1037 (Fla. 4th DCA 2006) (Sentencing enhancement for use of a firearm
during offense was not applicable to defendant's conviction for shooting a deadly missile, since use of a weapon was
an “essential element” of the crime of shooting a deadly missile); but see, Robertson v. State, 807 So. 2d 708 (Fla.
4th DCA 2002) (additional firearm sentencing points are authorized when the defendant uses a firearm and is
convicted of shooting a deadly missile because possession of a firearm is not an essential element of the crime);
Bradford v. State, 722 So. 2d 858 (Fla. 1st DCA 1998) (trial court erred in imposing three-year minimum mandatory
sentence for the charge of shooting or throwing a deadly missile but did not err in assessing 18 sentencing points for
use of a firearm in committing the offense).
12
Williams v. State, 850 So. 2d 656 (Fla. 1st DCA 2003), citing State v. Tripp, 642 So. 2d 728 (Fla. 1994).
13
Henry v. State, 857 So. 2d 344 (Fla. 2d DCA 2003), decision quashed, 894 So. 2d 966 (Fla. 2005) (in
enhancement of second degree attempted murder to a first degree felony use of a weapon was not an element until
section 775.087 was triggered and nothing in the pertinent statutes for attempted second-degree murder refers to the
use of a weapon as an element of the offense); see, Goutier v. State, 692 So. 2d 978 (Fla. 2d DCA 1997) (affirming
classification of attempted second-degree murder with a weapon as a first-degree felony).

Judge Burgess Bench Memo re reclassification of offenses

3 and minimum mandatory sentencing under § 775.087, F.S.
 In a felony involving the use of a weapon, a defendant’s sentence may only be reclassified
under section 775.087(1) upon a showing that the defendant had actual personal possession of
the weapon, not vicarious possession, during the commission of the felony.14

A. Definition of “Weapon” for Purposes of Reclassification.

Section 775.087 does not define “weapon.” This has not caused problems with cases
involving objects commonly understood to be weapons, such as clubs, knives, brass knuckles,
swords, razors, and the like,15 but it has created confusion in cases involving improvised weapons
or ordinary objects that have been repurposed as weapons. In 1995, the Florida Supreme Court
used the American Heritage College Dictionary to define “weapon” for purposes of section
75.087(1) as “an instrument of attack or defense in combat, such as a firearm or a sword,” or “a
means used to defend against or defeat another,” finding a paved surface not to be a “weapon”
for reclassification purposes under the statute.16 Nine years later, while finding that an
automobile cannot be “carried” as a deadly weapon for the purposes of the robbery statute,
section 812.13(20(1), Fla. Stat., the Florida Supreme Court opined in dicta that the legislative
intent behind section 775.087 is to provide harsher punishment for, and hopefully deter, those
persons who use instruments commonly recognized as having the purpose to inflict death and
serious bodily injury as a deadly weapon, that “an automobile is not commonly understood to be
an instrument for combat with another person,” and that although certainly capable of inflicting
death or injury as with the pavement in Houck, “the ordinary purpose of automobiles is not as
instruments for combat.”17 In 2016, the Second District Court of Appeal, on the basis of this
dicta, ruled in Gonzalez v. State18 that as a matter of law and not fact an automobile used is not a
weapon under the general reclassification statute, section 775.087(1), despite the fact that for
almost a century Florida courts have recognized that a motor vehicle can be a deadly weapon in

14
Connolly v. State, 172 So. 3d 893 (Fla. 3d DCA 2015), review denied, 2016 WL 224185 (Fla. 2016);
Travis v. State, 724 So. 2d 119, 120–21 (Fla. 1st DCA 1998); see also State v. Rodriguez, 602 So. 2d 1270 (Fla.
1992).
15
In contrast, legislative definitions of “weapon” can be found in § 790.001(13), Fla. Stat. (“any dirk, knife,
metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a
firearm or a common pocketknife, plastic knife, or blunt-bladed table knife”), and §1003.57, Fla. Stat. (“a device,
instrument, material, or substance, animate or inanimate, which is used for, or is readily capable of, causing death or
serious bodily injury; however, this definition does not include a pocketknife having a blade that is less than 2½
inches in length”).
16
State v. Houck, 652 So. 3d 359 (Fla. 1995) (paved surface used to inflict trauma on the victim’s head was
not a weapon within the meaning of the reclassification statute).
17
State v. Burris, 875 So. 2d 408 (Fla. 2004).
18
Gonzalez v. State, 197 So. 3d 84 (Fla. 2d DCA 2016) (automobile driven by defendant when he drove
over victim was not a weapon within the meaning of the general reclassification statute).

Judge Burgess Bench Memo re reclassification of offenses

4 and minimum mandatory sentencing under § 775.087, F.S.
the commission of crimes.19 The following year, the First District Court of Appeal in State v.
Shepard,20 and the Fifth District Court of Appeal in Hurd v. State,21 ruled the opposite, that a
defendant’s use of an automobile to strike a victim does constitute use of a deadly weapon for
purposes of reclassification under section 775.087(1), setting up a conflict among the district
courts that will have to be resolved by the Florida Supreme Court.

The Gonzalez opinion holds that in determining whether something is a weapon for
section 775.087(1) purposes, the “ordinary purpose” of the object is dispositive, while the
Shepard and Hurd opinions hold that the “use” of objects that in their ordinary purpose are not
weapons can transform those objects into weapons for reclassification purposes under the statute.
The opinions on Houck, Gonzalez, Shepard, and Hurd, however, do agree that “weapon” in this
context does not include passive objects or stationary fixtures such as pavement or a hard
surface.22

The rule that emerges, for purposes of reclassification under section 775.087, is that (1)
an instrumentality that is in its ordinary use designed to produce death or serious bodily injury is
a “weapon” as a matter of law, (2) passive objects or stationary fixtures that are not per se harm-
inducing are not weapons as a matter of law, and (3) all instrumentalities in between are capable
of being weapons in fact if used in a manner likely to cause death or serious bodily injury. Thus,
an instrumentality that is not dangerous per se, but which may be used in a dangerous fashion,
can be found by the trier of fact to be a dangerous weapon, taking into account the purposes for
which the instrumentality was intended, the manner in which it was used, and the resultant injury
to, or death of, the victim.

The challenge of formulating and applying any hard-and-fast rule with respect to what
constitutes a weapon for reclassification purposes is illustrated by the wide array of facts and
circumstances in which determinations of what is, and what is not, a weapon have had to be
made by courts. For example, instrumentalities courts in Florida and elsewhere have found not
to be dangerous weapons as a matter of law mainly because of their inherent immobility and

19
Williamson v. State, 92 Fla. 980 (Fla. 1926) (automobile may be so used as to constitute a deadly
weapon); see also City of Coral Springs v. Forfeiture of A 1997 Ford Ranger, 803 So. 2d 847 (Fla. 4th DCA 2002)
and cases cited therein.
20
Shepard v. State, 227 So. 3d 746 (Fla. 1st DCA 2017).
21
Hurd v. State, 229 So. 3d 876 (Fla. 5th DCA 2017).
22
State v. Houck, 652 So. 2d 359 (Fla. 1995); Gonzalez v. State, 197 So. 3d 84 (Fla. 2d DCA 2016);
Shepard v. State, 227 So. 3d 746 (Fla. 1st DCA 2017); Hurd v. State, 229 So. 3d 876 (Fla. 5th DCA 2017).

Judge Burgess Bench Memo re reclassification of offenses

5 and minimum mandatory sentencing under § 775.087, F.S.
inability to be “used” as a weapon include pavement,23 a concrete parking lot,24 teeth or other
parts of the human body,25 and attached bathroom fixtures.26 The rule that fixed or stationary
objects cannot be weapons is not universal, however, and, recognizing that an item’s dangerous
propensities often depend entirely on its use and not its mobility, courts in other jurisdictions
have found that pavement,27 sidewalks,28 curbs,29 plate glass windows,30 and jail floors and cell
bars31 can be deadly weapons if used to inflict injury. Examples of the much wider array of
instrumentalities that courts have determined not to be weapons per se but capable of being used
as weapons include gags,32 shod feet,33 automobiles,34 car doors,35 a rolled up kit of car tools,36

23
State v. Houck, 652 So. 2d 359 (Fla. 1995) (pavement defendant used to inflict trauma to victim’s head
was not a weapon within the meaning of the general reclassification statute).
24
State v. Legendre, 362 So. 2d 570 (La. 1978) (a concrete parking lot did not constitute a dangerous
weapon for purposes of prosecution for battery with a dangerous weapon).
25
Commonwealth v. Davis, 10 Mass. App. Ct. 190, 406 N.E. 2d 417, 8 A.L.R. 4th 1259 (App. Ct. Mass.
1980) (neither human teeth nor other parts of the human body are to be considered by fact finder as instrumentalities
which can be used as dangerous weapons).
26
Edwards v. U.S., 583 A. 2d 661, 8 A.L.R. 5th 1006 (D.C. Ct. App. 1990) (attached bathroom fixtures
were not dangerous weapons with which defendant could be armed).
27
Commonwealth v. Sexton, 425 Mass. 146, 680 N.E. 2d 23 (Mass. 1997) (concrete pavement against which
defendant repeatedly banged victim’s head as means of inflicting serious harm qualified as a deadly weapon).
28
See People v. Galvin, 65 N.Y. 2d 761, 481 N.E. 2d 565, 492 N.Y.S. 2d 25 (Ct. App. N.Y.) (Evidence that
defendant was seen atop victim, holding victim’s head with both hands an striking it against sidewalk demonstrated
that sidewalk can be used as dangerous weapon); State v. Reed, 101 Or. App. 277, 790 P. 2d 551 (Ct. App. Or.
1990) (concrete sidewalk was dangerous weapon within meaning of weapons statute).
29
Hampton v. Commonwealth, 34 Va. App. 412, 542 S.E. 2d 41 (Ct. App. Va. 2001) (sidewalk curb against
which defendant bashed victim’s head was deadly weapon);
30
People v. Zoe, 165 A.D. 2d 721, 564 N.Y.S. 2d 255 (Sup. Ct. App. Div. 1990) (defendant threw victim
through plate glass window in order to incapacitated her such that window was rendered dangerous instrument).
31
People v. O’Hagan, 176 A.D. 2d 179, 574 N.Y.S. 2d 198 (Sup. Ct. App. Div. 1991) (cell bars against
which victim’s head was intentionally knocked qualified as deadly weapon); U.S. v. Murphy, 35 F. 3d 143 (4th Cir.
1994) (steel bars of jail cell, in the manner in which they were used, constituted deadly weapon); State v. Brinson,
337 N.C. 764, 448 S.E. 2d 822 (N.C. 1994) (cell floor and bars against which victim was slammed were deadly
weapons).
32
Commonwealth v. Scott, 408 Mass. 811, 564 N.E. 2d 370 (Mass. 1990) (jury’s finding that gag, used to
gag victim of attempted rape, who died by asphyxia and head injuries, was dangerous weapon so as to aggravate the
offense was supported by the evidence).
33
Medlin v. U.S., 207 F. 2d 33 (D.C. Cir. 1953) (shoes on feet are dangerous weapons when they inflict
serious injuries); People v. Buford, 69 Mich. App. 27, 244 N.W. 2d 351 (Ct. App. Mich. 1976) (whether defendant’s
kicking of victim with boot constituted assault with dangerous weapon was question for jury); U.S. v. Steele, 550 F.

Judge Burgess Bench Memo re reclassification of offenses

6 and minimum mandatory sentencing under § 775.087, F.S.
walking sticks,37 riding crops,38 pool sticks,39 rakes,40 rocks,41 wine bottles,42 broken beer

3d 693 (8th Cir 2008) (tennis shoes can be used as a dangerous weapon) and cases cited therein; U.S. v. Brown, 96
Fed. Appx. 631 (10th Cir. 2004) (steel-toed boots used to kick victim qualify as dangerous weapon).
34
People v. Goolsby, 284 Mich. 375, 279 N.W. 867 (Mich. 1938) (an automobile may be so used as to
constitute a deadly weapon within the meaning of an aggravated assault).
35
U.S. v. Gamez-Cruz, 293 Fed. Appx. 729 (11th Cir. 2008) (evidence supported sentence enhancement for
use of an automobile door as a dangerous weapon where defendant deliberately struck federal agent trying to arrest
him); Commonwealth v. LeBlanc, 3 Mass. App. Ct. 780, 334 N.E. 2d 647 (App. Ct. Mass. 1975) (car door defendant
swung open, knocking police officer down, was a dangerous weapon).
36
People v. Crowl, 28 Cal. App. 2d 299 (Dist. Ct. App. 4th Dist. Cal. 1938) (blow struck with hammer and
other metal automobile tools rolled up in cloth container can produce great bodily injury and therefore comes within
definition of dangerous weapon).
37
U.S. v. Loman, 551 F. 2d 164 (7th Cir. 1977), cert. denied, 433 U.S. 912, 97 S. Ct. 2982, 53 L. Ed. 2d
1097 (1977) (walking stick used by defendant to hit victim was properly characterized as deadly weapon).
38
Commonwealth v. Appleby, 380 Mass. 296, 402 N.E. 2d 1051 (Mass. 1980) (riding crop is not designed to
inflict death or serious bodily harm upon either persons or animals but as used by defendant in beating victim was
dangerous weapon).
39
U.S. v. Guilbert, 692 F. 2d 1340 (11th Cir. 1982), cert. denied, 460 U.S. 1016, 103 S. Ct. 1260, 76 L. Ed.
2d 487 (1983) (pool stick employed by defendant in a manner likely to endanger life or inflict serious bodily harm
on victim constituted a dangerous weapon).
40
Eagleston v. U.S., 12 Alaska 213 172 F. 2d 194 (9th Cir. 1949) (if rake could and actually did produce
extensive skull fracture and defendant intended to assault victim with it at the time, such use of the rake was assault
with a dangerous weapon).
41
People v. White, 212 Cal. App. 2d 464, 28 Cal. Rptr. 67 (Dist. Ct. App. 1st Dist. 1963) (rock used to
strike victim in the head with was a deadly weapon for purposes of conviction for assault with a deadly weapon).
42
Thornton v. U.S., 268 F. 2d 583 (D.C.Cir. 1959) (wine bottle defendant beat victim about the head with
was a dangerous weapon for purposes of assault with a deadly weapon).

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7 and minimum mandatory sentencing under § 775.087, F.S.
bottles,43 chains,44 microphone cables,45 telephones,46 desks,47 chairs,48 fire,49 dogs,50 boats,51
lighted cigarettes,52 and corrosive or flammable liquids.53

B. Definition of “Use” for Purposes of Reclassification.

Section 775.087 also does not define what “use” of a weapon or firearm means for
purposes of reclassification, and the term has not otherwise been clarified by the courts of
Florida. The United States Supreme Court has interpreted the term in comparable federal laws to
mean, for example, that a defendant who trades his or her firearm for drugs does “use” that

43
U.S. v. Guilbert, 692 F. 2d 1340 (11 th Cir. 1982), cert. denied, 460 U.S. 1016, 103 S. Ct. 1260, 76 L. Ed.
2d 487 (1983) (broken beer bottle employed by defendant in a manner likely to endanger life or inflict serious bodily
harm on victim constituted a dangerous weapon).
44
Jones v. Commonwealth, 303 Ky. 106, 196 S.W. 2d 972 (Ct. App. Ky. 1946) (bunk chain used to strike
jailer qualified as deadly weapon for purposes of armed robbery conviction).
45
Bennett v. State, 237 Md. 212, 205 A. 2d 393 (Ct. App. Md. 1964) (manner of use of cord in the robbery
as garrote constituted it as a dangerous weapon).
46
Thomas v. State, 524 P. 2d 664 (Ak. 1974) (telephone used as club to inflict injury on victim can be
considered dangerous weapon).
47
U.S. v. Gholston, 932 F. 2d 904 (11th Cir. 1991) (desk overturned onto a person could be a dangerous
weapon for purposes of the offense of assault with a dangerous weapon).
48
U.S. v. Johnson, 324 F. 2d 264 (4th Cir. 1963) (evidence of defendant’s use of a chair to strike victim was
sufficient to support its characterization as a dangerous weapon).
49
State v. Riddick, 315 N.C. 749, 340 S.E. 2d 55 (N.C. 1986) (fire deliberately set to burn house in in which
five-year-old child burned to death was a deadly weapon for purpose of assault with deadly weapon inflicting serious
injury conviction); Logan v. U.S., 460 A. 2d 34 (D.C. Ct. App. 1983) (where defendant lit all burners on stove and
attempted to shove victim into flames, a jury could find the fire to be a deadly weapon).
50
Commonwealth v. Tarrant, 367 Mass. 411, 326 N.E. 2d 710 (Mass. 1975) (German shepherd dog which
accompanied defendant during robbery was dangerous weapon within purview of armed robbery statute).
51
U.S. v. Gualdado, 794 F. 2d 1533 (11th Cir. 1986) (boat used to ram customs vessel was a deadly weapon
for purposes of assault with a deadly weapon charge).
52
Commonwealth v. Farrell, 322 Mass. 606, 78 N.E. 2d 697 (Mass. 1948) (lighted cigarettes used by
defendant to deliberately burn victim were dangerous weapons).
53
Tatum v. U.S., 71 App. D.C. 393, 110 F. 2d 555 (Ct. App. D.C. 1940) (casting and throwing upon a
person a corrosive liquid compound commonly called lye supported a conviction for assault with a dangerous
weapon); Rice v. State, 771 S.W. 2d 599 (Ct. App. Tx. 1989) (evidence that defendant purchased gasoline, poured
gasoline on victim, and ignited victim’s gasoline-soaked body with cigarette permitted finding that gasoline in
manner of its use a deadly weapon); Blakewood v. State, 196 Ga. 34, 25 S.E. 2d 643 (Ga. 1943) (alcohol poured
over a victim and lighted with a match resulting in death of victim from burns is a weapon likely to produce death).

Judge Burgess Bench Memo re reclassification of offenses

8 and minimum mandatory sentencing under § 775.087, F.S.
firearm,54 a defendant who trades his or her drugs for a firearm does not “use” the firearm,55 and a
defendant who has a firearm nearby during a drug transaction does not “use” the firearm without
something more than mere possession.56 On the other hand, when a person commits a battery by
using a firearm as a bludgeon, the person uses a deadly weapon within the meaning of the
aggravated battery statute.57

III. Mandatory Minimums.

Legislative intent and policy in cases meeting the criteria of section 775.087(2) and (3),
involving the possession, use or discharge of a firearm, destructive device, semiautomatic
firearm, or machine gun in the course of the commission or attempt to commit certain
enumerated felonies, is contained in section 27.366, Fla. Stat. As stated, the intent of the Florida
Legislature is that convicted defendants meeting the criteria of section 775.087(2) and (3) be
sentenced to the minimum mandatory prison terms provided by that statute, while cautioning that
“prosecutors should appropriately exercise their discretion in those cases in which the offenders’
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.”
Section 27.366 also mandates that, for every case in which the offender meets the criteria of
section 775.087(2) or (3) and does not receive the mandatory minimum 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.”58

Section 775.087 applies only where the offender actually possessed a firearm or
destructive device as those terms are defined in section 790.001, Fla. Stat.59 Under section
790.001(6), the term “firearm” does not include an antique firearm unless the antique firearm is
used in the commission of a crime.60 A toy gun does not fit within the definition of firearm under

54
Smith v. U.S., 508 U.S. 223, 113 S. Ct. 2050, 124 L. Ed. 2d 138 (1993).
55
Watson v. U.S., 552 U.S. 74, 128 S. Ct. 579, 169 L. Ed. 2d 472 (2007).
56
Bailey v. U.S., 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995).
57
O’Meara v. State, 125 So. 3d 871 (Fla. 4th DCA 2013); State v. Williams, 10 So. 3d 1172 (Fla. 3d DCA
2009).
58
§ 27.366, Fla. Stat.
59
§ 775.087(2)(a)(1), Fla. Stat.; Bundrage v. State, 814 So. 2d 1133 (Fla. 2d DCA 2002).
60
Margiotti v. State, 844 So. 2d 829 (Fla. 3d DCA 2003).

Judge Burgess Bench Memo re reclassification of offenses

9 and minimum mandatory sentencing under § 775.087, F.S.
section 775.087.61 Where a firearm is used in the commission of a crime, the fact that the firearm
is inoperable makes no difference.62

Section 775.087 requires that the firearm be carried on the person or be within immediate
physical reach with ready access with the intent to use the firearm before the minimum
mandatory term under section 775.087(2)(a) 1 can be applied.63 Conviction on a principal theory
is not sufficient to warrant the imposition of the minimum mandatory sentence for carrying a
firearm during a felony offense.64

TABLE 6-2. MINIMUM MANDATORY QUALIFYING OFFENSES UNDER

SECTION 775.087, FLA. STAT.
Offense § 775.087(2)(a)1. § 775.087(3)(a)1.
Murder X X
Sexual Battery X X
Robbery X X
Burglary X X
Arson X X
Aggravated Battery X X
Kidnapping X X
Escape X X
Sale, manufacture, delivery, or intent to sell, - X
manufacture, or deliver any controlled substances
Aircraft Piracy X X
Aggravated Child Abuse X X

61
Cesar v. State, 94 So. 3d 703 (Fla. 4th DCA 2012) (uncontradicted testimony by witness that the gun used
by the defendant appeared to be a toy gun precludes imposition of firearm minimum mandatory); Coley v. State, 801
So. 2d 205, 206–07 (Fla. 2d DCA 2001) (holding that a BB gun is not a firearm under section 775.087(2)).
62
Margiotti v. State, 844 So. 2d 829 (Fla. 3d DCA 2003); see, Bentley v. State, 501 So. 2d 600, 68
A.L.R.4th 501 (Fla. 1987); Mitchell v. State, 698 So. 2d 555, 558 (Fla. 2d DCA 1997), decision approved, 703 So.
2d 1062 (Fla. 1997); State v. Altman, 432 So. 2d 159 (Fla. 3d DCA 1983).
63
§ 775.087(4), Fla. Stat.
64
McGill v. State, 878 So. 2d 1270 (Fla. 5th DCA 2004).

Judge Burgess Bench Memo re reclassification of offenses

10 and minimum mandatory sentencing under § 775.087, F.S.
 Aggravated Abuse of an Elderly Person or X X
Disabled Adult
Unlawful Throwing, Placing, or Discharging a X X
Destructive Device or Bomb
Carjacking X X
Home Invasion Robbery X X
Aggravated Stalking X X
Drug Trafficking65 X X
Possession of a Firearm by a Felon X -

A. Possession of a Firearm or Destructive Device.

As to firearms and destructive devices, a defendant who is convicted of a felony or an

attempt to commit a felony, regardless of whether the use of a weapon is an element of the
felony, and the conviction was for: murder; sexual battery; robbery; burglary; arson; aggravated
battery; kidnapping; escape; aircraft piracy; aggravated child abuse; aggravated abuse of an
elderly person or disabled adult; unlawful throwing, placing, or discharging of a destructive
device or bomb; carjacking; home-invasion robbery; aggravated stalking; trafficking in cannabis,
trafficking in cocaine, capital importation of cocaine, trafficking in illegal drugs, capital
importation of illegal drugs, trafficking in phencyclidine, capital importation of phencyclidine,
trafficking in methaqualone, capital importation of methaqualone, trafficking in amphetamine,
capital importation of amphetamine, trafficking in flunitrazepam, trafficking in
gamma-hydroxybutyric acid (GHB), trafficking in 1,4-Butanediol, trafficking in
Phenethylamines, or other violation of section 893.135(1); or possession of a firearm by a felon,
and during the commission of the offense, such person actually possessed a “firearm” or
“destructive device” as those terms are defined in section 790.001, must be sentenced to a
minimum term of imprisonment of 10 years, except that a person who is convicted for
aggravated assault, possession of a firearm by a felon, or burglary of a conveyance must be
sentenced to a minimum term of imprisonment of three years if such person possessed a
“firearm” or “destructive device” during the commission of the offense.66 The three-year
mandatory minimum sentence provided for actual possession of a firearm pursuant to section

65
Trafficking in cannabis, trafficking in cocaine, capital importation of cocaine, trafficking in illegal drugs,
capital importation of illegal drugs, trafficking in phencyclidine, capital importation of phencyclidine, trafficking in
methaqualone, capital importation of methaqualone, trafficking in amphetamine, capital importation of amphetamine,
trafficking in flunitrazepam, trafficking in gamma-hydroxybutyric acid (GHB), trafficking in 1,4-Butanediol,
trafficking in Phenethylamines, or other violation of section 893.135(1), §§ 775.087(2)(a) 1, (3)(a)1, Fla. Stat.
66
§ 775.087(2)(a) 1, Fla. Stat.

Judge Burgess Bench Memo re reclassification of offenses

11 and minimum mandatory sentencing under § 775.087, F.S.
775.087(2)(a) does not apply, however, to a defendant charged with possession of a firearm by a
delinquent because that offense is not specifically enumerated in the statute.67

B. Discharge of a Firearm or Destructive Device.

If, in the course of the commission of any of these felonies except possession of a firearm
by a felon, the defendant discharges a firearm or destructive device, the defendant must be
sentenced to a minimum term or imprisonment of 20 years.68 The firearm must, however, be
discharged contemporaneously with the commission of the qualifying felony.69 Section 775.087
does not require that the firearm discharge be done knowingly or intentionally for the minimum
mandatory imprisonment under section 775.087 to apply, and so may be applied in cases of
accidental or unintentional discharge.70 Similarly, Section 775.087 does not require that the
defendant fire at, or strike, his or her intended victim in order for the defendant to be subject to
this particular minimum mandatory provision.71 To discharge a destructive device for purposes
of section 775.087(2) providing for a mandatory minimum 20-year sentence, the device must
explode, that is, function as it was intended and not misfire.72

C. Causing Death or Great Bodily Harm With a Firearm or Destructive Device.

If, as a result of the discharge, death or great bodily harm is inflicted upon any person, the
defendant must be sentenced to a minimum term of imprisonment of not less than 25 years and
not more than a term of imprisonment of life in prison.73 Note that the enhancement statute
requires a finding of death or great bodily harm and that a finding of “great bodily harm and/or
permanent disability and/or permanent disfigurement” does not permit enhancement under
section 775.087.74

67
Potter v. State, 997 So. 2d 1215 (Fla. 1st DCA 2008).
68
§ 775.087(2)(a) 2, Fla. Stat.
69
See, Lemus v. State, 33 So. 3d 774 (Fla. 4th DCA 2010).
70
Compare, e.g., Dean v. U.S., 556 U.S. 568, 129 S. Ct. 1849, 173 L. Ed. 2d 785 (2009).
71
Chavers v. State, 112 So. 3d 594 (Fla. 4th DCA 2013).
72
Wallace v. State, 860 So. 2d 494 (Fla. 4th DCA 2003).
73
§ 775.087(2)(a) 3, Fla. Stat.
74
Johnson v. State, 53 So. 3d 360 (Fla. 5th DCA 2011).

Judge Burgess Bench Memo re reclassification of offenses

12 and minimum mandatory sentencing under § 775.087, F.S.
 D. Semiautomatic Firearm Possession, Discharge, or Causing Death or Great
Bodily Harm.

Any defendant who is convicted of a felony or an attempt to commit a felony, regardless

of whether the use of a firearm is an element of the felony, and the conviction was for: murder;
sexual battery; robbery; burglary; arson; aggravated battery; kidnapping; escape; sale,
manufacture, delivery, or intent to sell, manufacture, or deliver any controlled substance; aircraft
piracy; aggravated child abuse; aggravated abuse of an elderly person or disabled adult; unlawful
throwing, placing, or discharging of a destructive device or bomb; carjacking; home-invasion
robbery; aggravated stalking; or trafficking in cannabis, trafficking in cocaine, capital
importation of cocaine, trafficking in illegal drugs, capital importation of illegal drugs,
trafficking in phencyclidine, capital importation of phencyclidine, trafficking in methaqualone,
capital importation of methaqualone, trafficking in amphetamine, capital importation of
amphetamine, trafficking in flunitrazepam, trafficking in gamma-hydroxybutyric acid (GHB),
trafficking in 1,4-Butanediol, trafficking in Phenethylamines, or other violation of section
893.135(1), and during the commission of the offense, the defendant possessed a semiautomatic
firearm and its high-capacity detachable box magazine or a machine gun as defined in section
790.001, must be sentenced to a minimum term of imprisonment of 15 years.75 If, during the
course of the commission of one of these felonies the defendant discharges the weapon, the
defendant must be sentenced to a minimum term of imprisonment of 20 years.76 If, as a result of
the discharge, death or great bodily harm is inflicted on any person, the defendant must be
sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term
of imprisonment of life in prison.77

IV. Jury Findings.

Before a trial court can enhance a defendant’s sentence by applying the mandatory
minimum sentence for use of a firearm, the grounds for enhancement must be charged in the
information and the jury must make a finding that the defendant committed the crime while using
a firearm either by finding him guilty of a crime which involves a firearm or by answering a
specific question of a special verdict form so indicating.78 A defendant is constitutionally entitled

75
§ 775.087(3)(a) 1, Fla. Stat.
76
§ 775.087(3)(a) 2, Fla. Stat.
77
§ 775.087(3)(a) 3, Fla. Stat.
78
State v. Iseley, 944 So. 2d 227 (Fla. 2006); Tucker v. State, 726 So. 2d 768 (Fla. 1999) (jury verdict
finding defendant “guilty of attempted first-degree murder with a firearm” sufficient to increase permissible
sentencing range based on defendant's use of a firearm, even though verdict form not technically a special verdict
form); State v. Hargrove, 694 So. 2d 729, 730 (Fla. 1997); State v. Overfelt, 457 So. 2d 1385, 1387 (Fla. 1984)
(quoting Overfelt v. State, 434 So. 2d 945, 948 (Fla. 4th DCA 1983), approved in part, quashed in part, 457 So. 2d
1385 (Fla. 1984)).

Judge Burgess Bench Memo re reclassification of offenses

13 and minimum mandatory sentencing under § 775.087, F.S.
to a jury determination on the specific question of his or her actual possession of a firearm.79 The
verdict must reflect a “clear jury finding” that the defendant used a firearm before the defendant’s
sentence may be enhanced.80 This requisite “clear jury finding” can be demonstrated either by
(1) a specific question or special verdict form, which is the better practice, or (2) the inclusion in
the Information of a reference to a firearm in identifying the specific crime for which the
defendant is found guilty.81

An Information that alleges the defendant “carried” a firearm during an offense is

sufficient notice to sustain a mandatory minimum sentence after a jury finding of “actual
possession” of the firearm.82 Where the information alleges that the defendant “possessed, used,
or attempted to use firearm in violation of sections 775.087, 782.04(1)(a) and 777.04,” and does
not allege that the defendant discharged the firearm, a jury finding that the defendant discharged
a firearm is sufficient to trigger the 10-year minimum mandatory provision of section
775.087(2)(a)1., Fla. Stat., for “possession” of the firearm as that factor was contained in the
charging document, but is insufficient to trigger the 20-year minimum mandatory provision of
section 775.087(2)(a)2., Fla. Stat., for “discharge” of the firearm.83 The phrase “with a firearm,
as charged” on the verdict form incorporates the factual allegation that the defendant possessed a
firearm, which would justify imposition of a 10-year minimum mandatory sentence under the
enhancement provision in section 775.087(2)(a)(1), Fla. Stat., but does not constitute a factual
finding that a firearm was discharged.84 A charging document that alleges that the defendant “did
… kill” the victim “by shooting him” and that the defendant had a handgun in his possession will
support a sentencing enhancement after an “as charged” verdict.85

The finding of the jury does not have to exactly match the statutory language, and a jury
finding of “serious bodily injury” is synonymous with “great bodily harm” and sufficient for
imposition of the 25-year mandatory minimum prison sentence.86 An allegation in the indictment

79
Lindsay v. State, 1 So. 3d 270 (Fla. 1st DCA 2009).
80
Orjales v. State, 758 So. 2d 1157, 1159 (Fla. 2d DCA 2000) (quoting State v. Hargrove, 694 So. 2d 729,
731 (Fla. 1997)); see, Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
81
See Roberts v. State, 152 So. 3d 669 (Fla. 4th DCA 2014), and cases cited therein.
82
Martinez v. State, 169 So. 3d 170 (Fla. 4th DCA 2015), review granted, 2016 WL 1082749 (Fla. 2016)
and decision approved, 211 So. 3d 989 (Fla. 2017).
83
Bell v. State, 876 So. 2d 712 (Fla. 4th DCA 2004).
84
Muldrow v. State, 842 So. 2d 240 (Fla. 2d DCA 2003).
85
Nelson v. State, 191 So. 3d 950 (Fla. 4th DCA 2016).
86
Mendenhall v. State, 999 So. 2d 665 (Fla. 5th DCA 2008), decision approved, 48 So. 3d 740 (Fla. 2010).

Judge Burgess Bench Memo re reclassification of offenses

14 and minimum mandatory sentencing under § 775.087, F.S.
or information that the defendant shot the victim also is sufficient to give notice of the “great
bodily harm” element.87

V. Overall Length of Sentence.

The provisions of section 775.087(2)(a)1.-3. do not prevent a court from imposing a

longer sentence of incarceration as authorized by law in addition to the minimum mandatory
sentence, or from imposing a sentence of death pursuant to other applicable law. Subparagraph
(a)1., subparagraph (a)2., or subparagraph (a)3. does not authorize a court to impose a lesser
sentence than otherwise required by law. Notwithstanding section 948.01, adjudication of guilt
or imposition of sentence cannot be suspended, deferred, or withheld, and the defendant is not
eligible for statutory gain-time under section 944.275, Fla. Stat., or any form of discretionary
early release, other than pardon or executive clemency, or conditional medical release under
section 947.149, Fla. Stat., prior to serving the minimum sentence.88

In situations where the minimum mandatory is 25 years to life the sentencing court can
impose a life sentence with a minimum mandatory of life in prison.89 Note that a trial court may
not impose a sentence in excess of the selected mandatory minimum term imposed under the
10-20-Life statute unless authorized by some other statute. A trial court may not, for example,
impose a 40-year sentence with a 25-year minimum mandatory term under section 775.087 for a
first-degree felony, even if the court had the discretion under section 775.087(2)(a)3. to impose a
mandatory minimum sentence any where within a range of 25 years to life, unless there is
separate statutory authority for the 40-year term.90 Note also that when a robbery conviction is
enhanced because a firearm was used during the commission of the robbery, a defendant cannot
be adjudicated guilty of both robbery with a firearm and possession of a firearm in the
commission of the same robbery.91

If the minimum mandatory terms of imprisonment imposed pursuant to section 775.087

exceeds the maximum sentences authorized by section 775.082, section 775.084, or the Criminal
Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed. If
the mandatory minimum terms of imprisonment pursuant to section 775.087 are less than the
sentences that could be imposed as authorized by section 775.082, section 775.084, or the

87
Nelson v. State, 191 So. 3d 950 (Fla. 4th DCA 2016).
88
§ 775.087(2)(b), Fla. Stat.
89
Flowers v. State, 69 So. 3d 1042 (Fla. 1st DCA 2011).
90
Hatten v. State, 203 So. 3d 142 (Fla. 2016).
91
Dorsett v. State, 873 So. 2d 424 (Fla. 3d DCA 2004).

Judge Burgess Bench Memo re reclassification of offenses

15 and minimum mandatory sentencing under § 775.087, F.S.
Criminal Punishment Code under chapter 921, then the sentence imposed by the court must
include the mandatory minimum term of imprisonment as required in section 775.087.92

VI. Stacking.

The stated intent of the Legislature is that defendants convicted of firearms offenses
should be punished to the fullest extent of the law, and the court is commanded to impose any
term of imprisonment provided for in this subsection “consecutively to any other term of
imprisonment imposed for any other felony offense.”93 The “any other” language in section
775.087 mandating sentences consecutive to any other term of imprisonment imposed for any
other felony offense, if the defendant possesses, carries, displays, uses, threatens to use, or
attempts to use firearms, does not limit the statute to crimes which take place at different times;
the statute thus does not preclude a trial court from imposing consecutive mandatory minimum
sentences unless the other felony offenses occurred during a different criminal episode.94

As written, paragraph (2)(d) of section 775.087 contemplates two distinct imprisonment

terms: a term imposed for a qualifying felony pursuant to subsection (2), and a term for a
non-qualifying felony. The last sentence of paragraph (2)(d) further delineates the manner in
which these distinct imprisonment terms are to be served in relation to one another. Specifically,
it expressly mandates only that a qualifying felony sentence run “consecutively to” any sentence
imposed for a non-qualifying felony. Nothing within the plain language of paragraph (2)(d) also
requires a qualifying felony sentence to run consecutively to another qualifying felony sentence.
The Supreme Court of Florida has not interpreted paragraph (2)(d) to mandate the imposition of
consecutive sentences for the qualifying felonies. Generally, consecutive sentencing of
mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the
offenses arose from the same criminal episode and a firearm was merely possessed but not
discharged. If, however, multiple firearm offenses are committed contemporaneously, during
which time multiple victims are shot at, then consecutive sentencing is permissible but not
mandatory.95 Where the defendant is convicted of multiple offenses that have occurred in
separate criminal episodes and one of the offenses carries a minimum mandatory sentence
pursuant to section 775.087(2) or (3) (as where a defendant on probation for one offense commits
two new offenses, and one of the new offenses carries a minimum mandatory term of
imprisonment under section 775.087(2) or (3)), the sentencing court must sentence the qualifying

92
§ 775.087(2)(c), Fla. Stat.
93
§ 775.087(2)(d) and (3)(d), Fla. Stat.
94
State v. Sousa, 903 So. 2d 923 (Fla. 2005).
95
Williams v. State, 186 So. 3d 989 (Fla. 2016).

Judge Burgess Bench Memo re reclassification of offenses

16 and minimum mandatory sentencing under § 775.087, F.S.
section 775.087(2) or (3) offense consecutively to the other new offense and may also run the
violation of probation sentence consecutively to the new offenses.96

96
State v. Sousa, 903 So. 2d 923 (Fla. 2005); State v. Christian, 692 So. 2d 889 (Fla. 1997).

Judge Burgess Bench Memo re reclassification of offenses

17 and minimum mandatory sentencing under § 775.087, F.S.