Guns are a hot topic right now. Actually, guns have been a hot topic for quite some time. In case you care to know (I doubt you do), my job as a criminal defense attorney involves defending our beloved Constitution. I enjoy my job. I’d be a hypocrite to seek enforcement of the Fourth, Fifth, or Sixth Amendment–but ignore our rights found in the Second Amendment [2nd Amendment: “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”].
Before we get into our criminal defense analysis, here’s an interesting view on gun violence, coming from a man who has experienced it first hand. Twelve years ago, Darrell Scott’s daughter was killed by kid with a firearm at Columbine High School. Horrible. He testified before our Congress regarding gun control, and here’s part of what he said:
“Since the dawn of creation there has been both good & evil in the hearts of men and women. We all contain the seeds of kindness or the seeds of violence. The death of my wonderful daughter, Rachel Joy Scott, and the deaths of that heroic teacher, and the other eleven children who died must not be in vain. Their blood cries out for answers.
“The first recorded act of violence was when Cain slew his brother Abel out in the field. The villain was not the club he used. Neither was it the NCA, the National Club Association. The true killer was Cain, and the reason for the murder could only be found in Cain’s heart.
“In the days that followed the Columbine tragedy, I was amazed at how quickly fingers began to be pointed at groups such as the NRA. I am not a member of the NRA. I am not a hunter. I do not even own a gun. I am not here to represent or defend the NRA – because I don’t believe that they are responsible for my daughter’s death. Therefore I do not believe that they need to be defended. If I believed they had anything to do with Rachel’s murder I would be their strongest opponent.”
I applaud Mr. Scott’s clear headed thinking in the face of every parent’s worst nightmare. We all can agree that guns should not be in the hands of criminals. And our case discussion for today involves just such a thing.
In Davis v. State, 96 So.3d 1116 (Fla. 1st DCA 2012), Davis was convicted of four counts of possession of a firearm by a convicted felon. Now, in case you didn’t know, possession of a firearm by a convicted felon can carry a 3 year minimum mandatory sentence, but only if the firearms were in the “actual” possession of the defendant. If the firearms were simply nearby (constructive possession), the three year minimum mandatory does not apply.
Now, we can all concede that Davis did something very stupid. He was a convicted felon, first off. But also, after being a convicted felon, he decided to possess a firearm. Ok, dumb. But it didn’t stop there. He possessed a second gun, a third gun, and a fourth gun. Four guns possessed, and thus four separate convictions for possession of a firearm by a convicted felon. But is this legal? Davis appealed his four convictions, arguing that our Constitution has a double jeopardy rule which only permits one conviction per criminal act. And in Davis’ case, he considered his four guns to be one “possession”.
Fortunately, the appeals court agreed with Davis, and overturned three of the four convictions for possession of a firearm by a convicted felon. And the court did one better, as they also remanded the case for a re-sentencing, requesting that the lower court re-sentence Davis based upon only one conviction.
After defending criminal cases for over twenty years, Davis’ four convictions (when it should have been one) didn’t surprise me, as many judges and prosecutors enjoy slamming criminals caught possessing guns (almost as much as they enjoy slamming sex offenders). So, kudos to the appeals court for recognizing that these four convictions were a bit overzealous/unconstitutional, and making the proper course correction.
CRIMINAL DEFENSE TIP OF THE DAY: When confronted with multiple counts of possession of a firearm or possession of ammunition by a convicted felon, a simple motion to dismiss (“c4” or “b”) will dispose of the multiple counts early, rather than having an appeals court decide the issue years down the road. Here’s a sample motion to dismiss I filed when the state charged my client with both possessing a firearm and extra clips full of ammunition (the ammunition was not inside the gun). Enjoy:
MOTION TO DISMISS EITHER FIREARM OR AMMUNITION CHARGE
The defendant in the above styled cause hereby moves this court pursuant to Florida Criminal Rule 3.190(b) to either dismiss, or require the State to elect whether to pursue a conviction for possession of a firearm by a convicted felon or possession of ammunition by a convicted felon because they cannot convict the defendant on both. As stated in Francis v State, 41 So3d 975 (Fla. 5th DCA 2010),
“Dual convictions for possession of a firearm by a convicted felon and possession of ammunition by a convicted felon, arising from defendant’s possession of one loaded firearm, violated the right of protection against double jeopardy; statute prohibited possession of ‘any’ firearm or ammunition, and Legislature did not express a clear intent to authorize separate units of prosecution for possession of a firearm and possession of ammunition by a convicted felon, particularly where the ammunition was fully encased within the firearm.” See also, Haskins v State, 43 So3d 876 (Fla. 5th DCA 2010)
In State v. Whaley, 2011 WL 2305624 (Fla. 1st DCA 2011), the First DCA upheld a trial court’s dismissal of a criminal information that charged Whaley with four counts of possession of a firearm by a convicted felon and one count of possession of ammunition by a convicted felon, reasoning that Florida Statute 790.23(1)(a) only makes it unlawful for a convicted felon to possess “any firearm or ammunition.” Under the a/any test raised in numerous Florida cases, the term “any” dictates that a defendant cannot be charged with multiple offenses. See State v. Watts, 462 So.2d 813, 814 (Fla.1985) (holding that the defendant could not be charged with multiple offenses for the possession of two prison-made knives because the statute at issue addressed “any firearm or weapon” as opposed to “a firearm or weapon”). Under this analysis, the State is limited to only a single count of either possession of a firearm by a convicted felon or possession of ammunition by a convicted felon. Id.
It’s worth noting that once the trial court in Whaley dismissed the information, it then allowed the State to file an amended information charging merely one count of possession of a firearm by a convicted felon and one count of possession of ammunition by a convicted felon. The First DCA found that
“the trial court erred in ruling that the State could file an amended information charging one count of possession of a firearm by a convicted felon and one count of possession of ammunition by a convicted felon….
…[we] reverse in part, and remand with instructions that the trial court permit the State to file an amended information charging either one count of possession of a firearm by a convicted felon or one count of possession of ammunition by a convicted felon.” Id.
Wherefore, the defendant asks for the above requested relief. The defendant reserves the right to present appropriate case law and argument at the time of hearing in this matter.