Arrestable Offenses / Crimes under Fla. Stat. 790.161
S790.161 1 - EXPLOSIVES-USING - THROW PROJECT ETC ATTEMPT DESTRUCTIVE DEVICE - F: T
S790.161 1 - EXPLOSIVES-POSSESSING - MAKE OR ATTEMPT TO MAKE DESTRUCTIVE DEVICE - F: T
S790.161 2 - EXPLOSIVES-POSSESSING - MAKE OR ATT DESTRUCT DVC WIT CAUSE BODILY HARM - F: S
S790.161 2 - EXPLOSIVES-USING - PROJECT ETC ATT DESTRUCT DVC WIT BODILY HARM - F: S
S790.161 3 - EXPLOSIVES-POSSESSING - MAKE ATT DESTRUCTIVE DVC WIT HARM OR DMG PROP - F: F
S790.161 4 - EXPLOSIVES-USING - THROW ETC ATT DESTRUCT DEVICE RESULT IN DEATH - F: C
S790.161 4 - EXPLOSIVES-POSSESSING - MAKE ATTEMPT DESTRUCTIVE DVC RESULT IN DEATH - F: C
CopyCited 576 times | Published | Supreme Court of Florida
...trate arson, burglary, rape, robbery, abominable and detestable crime against nature, or kidnapping, § 782.041 (1), F.S. 1971 F.S.A.; bombing or machine-gunning in public places, §
790.16, F.S. 1971 F.S.A.; homicide caused by a destructive device, §
790.161(1), F.S....
CopyCited 114 times | Published | Supreme Court of Florida
...The respondent was initially charged as a juvenile for the offense of discharging a destructive device. At the time of the offense, the respondent was seventeen years old. He was tried as an adult, however, and was convicted and sentenced to a mandatory ten-year term pursuant to section 790.161(3), Florida Statutes (1981)....
CopyCited 112 times | Published | Supreme Court of Florida | 1989 WL 34342
...in paragraph c of the current instruction and should be inserted in paragraphs a and b as shown. 8. Regarding page 103 of the manual, paragraph 3b should be amended as follows: b. [a disruption of governmental commerce.] Although the wording of the Section 790.161, Florida Statutes, may be ambiguous, the committee believes that "governmental" modifies only "operations" and not "commerce." 9....
...." Paragraph 2 of the jury instruction on page 99 of the manual, therefore, should be amended by striking "[under indictment or information]" and by removing the brackets from "[committing or attempting to commit the felony of (felony alleged)]." 4. Section 790.161, Florida Statutes, was amended by Chapter 88-381, § 44, Laws of Florida....
...traband may give rise to misdemeanor, lesser included offenses See Cooper v. State,
512 So.2d 1071 (Fla. 1st DCA 1987); Moore v. State,
512 So.2d 1149 (Fla. 1st DCA 1987). EXHIBIT 12 THROWING, PLACING, PROJECTING, OR DISCHARGING DESTRUCTIVE DEVICE F.S.
790.161 Before you can find the defendant guilty of (crime charged), the State must prove the following three elements beyond a reasonable doubt: Elements 1....
CopyCited 75 times | Published | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 400, 1992 Fla. LEXIS 1220, 1992 WL 148230
...790.001 as required by the allegations. Explanation of amendments: This instruction appears on page 99 of the manual. The addition of "or firearm" clarifies the second Note to Judge. [Page A-37] *1215 THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING DESTRUCTIVE DEVICE (New) F.S. 790.161(1) Before you can find the defendant guilty of (crime charged), the State must prove the following element beyond a reasonable doubt: Element 1....
...device. Definition A "destructive device" is defined as (adapt from F.S.
790.001(4) as required by the allegations). Explanation of proposed instructions: This instruction is based on the instruction on page 103 of the manual and on amendments to F.S.
790.161 in 1990. [Page A-38] *1216 THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING DESTRUCTIVE DEVICE (New) F.S.
790.161(2) Before you can find the defendant guilty of (crime charged), the State must prove the following two elements beyond a reasonable doubt: Elements 1....
...affairs of (victim).] Definition A "destructive device" is defined as (adapt from F.S.
790.001(4) as required by the allegations). Explanation of proposed instruction: This is based on the instruction on page 103 of the manual and on amendments to F.S.
790.161 in 1990. [Page A-39] *1217 THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING DESTRUCTIVE DEVICE (New) F.S.
790.161(3) Before you can find the defendant guilty of (crime charged), the State must prove the following two elements beyond a reasonable doubt: Elements 1....
...The act resulted in [bodily harm to another.] [property damage.] Definition A "destructive device" is defined as (adapt from F.S.
790.001(4) as required by the allegations). Explanation of proposed instruction: This is based on the instruction on page 103 of the manual and on amendments to F.S.
790.161 in 1990. [Page A-40] *1218 THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING DESTRUCTIVE DEVICE (New) F.S.
790.161(4) Before you can find the defendant guilty of (crime charged), the State must prove the following two elements beyond a reasonable doubt: Elements 1....
...The act resulted in the death of another. Definition A "destructive device" is defined as (adapt from F.S.
790.001(4) as required by the allegations). Explanation of proposed instruction: This is based on the instruction on page 103 of the manual and on amendments to F.S.
790.161 in 1990....
CopyCited 14 times | Published | Supreme Court of Florida | 11 Fla. L. Weekly 463
...The resulting explosion destroyed the intended victim's bedroom, and resulted in injury to another member of the family. A jury subsequently convicted petitioner of one count of attempted first-degree murder, two of attempted manslaughter, and one of placing a destructive device in violation of section 790.161, Florida Statutes (1983)....
...orida Statutes (1983); five years on each count of attempted manslaughter, to run concurrently with the first sentence; and a consecutive fifteen years for placing the destructive device, including a ten-year mandatory minimum imposed therefor under section 790.161(3)....
...howing an utter disregard for human [life] his long period of deliberation *1018 before committing this act clearly demonstrates this disregard." These reasons for departure, we believe, impermissibly duplicate an inherent component of the crime. Section 790.161 criminalizes the placing or discharging of any destructive device "with intent to do bodily harm to any person." Because the legislature has defined the crime as including such intent, a conviction under the statute will necessarily involve a disregard for human life....
CopyCited 14 times | Published | Supreme Court of Florida | 2007 WL 2727127
...." But it does not go further to provide that the conduct "is unlawful," see, e.g., §
810.13(4), Fla. Stat. (2005), or that the person who engages in the conduct "shall be guilty of," see, e.g., id. §
806.101, or "commits a felony," see, e.g., id. §
790.161(1)....
CopyCited 14 times | Published | Supreme Court of Florida | 1997 WL 758803
...We disapprove In re D.D.,
564 So.2d 1224 (Fla. 4th DCA 1990), to the extent it conflicts with our decision herein. It is so ordered. KOGAN, C.J., OVERTON, HARDING and WELLS, JJ., and GRIMES, Senior Justice, concur. ANSTEAD, J., concurs in result only. NOTES [1] §
790.161(1), Fla....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal
...The Williams test is then one of admissibility, not exclusion. Williams v. State, supra note 1; Green v. State,
190 So.2d 42 (Fla. 2d DCA 1966). Jacobson was tried on the single count of throwing, placing or discharging a destructive device in violation of Section
790.161, Florida Statutes (1975)....
CopyCited 6 times | Published | Florida 4th District Court of Appeal
...In Florida, murder in the first degree is the only existing capital offense. Prior to the effective date of Furman v. Georgia,
408 U.S. 238,
92 S.Ct. 2726,
33 L.Ed.2d 346 (1972), the only capital crimes in Florida were first degree murder ( see also Section
790.161, Florida Statutes (1971)) and rape (sexual battery)....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal
...Appellant De la Cova's second point urges error in the court's denial of his motion for a directed verdict on count two, which charged an "... attempt to discharge a destructive device, in the vicinity of the structure located at 3458 Southwest 8 Street, with intent to do damage to said property, in violation of 77[7].04 and 790.161(2), Florida Statutes ..." and on count three, which charged an "......
...The possibility of double jeopardy, as urged by the defendant, does not exist. Cf. Llano v. State,
271 So.2d 34 (Fla. 3d DCA 1972). The third point urges that count two should have been dismissed upon defendant's motion because it improperly charged the defendant with an attempt to commit the crime described in Section
790.161, Florida Statutes (1975). It is argued that Section
790.161 [2] is an attempt statute and that, therefore, the charge of an attempt *1231 under the general attempt statute, Section
777.04, Florida Statutes (1975), was a charge of an attempt to attempt. This argument is not effective because the language of Section
790.161, in referring to attempts, speaks only of "......
...UNLAWFUL POSSESSION OF EXPLOSIVES, ... and UNLAWFUL TRANSPORTATION OF EXPLOSIVES ..." II. "... did unlawfully and feloniously 15 years 15 years throw, place, discharge, or attempt to discharge a destructive device ..." in contravention of Sections
777.04 and
790.161, Florida Statutes (1975)....
...The defendants first urge that the trial court erred in imposing separate sentences on counts two and three because the elements of the crime alleged are identical. It will be noted from the above tabulation that count two charged the attempted placing of a destructive device in violation of Section
790.161, Florida Statutes (1975), and that count three charged attempted arson in violation of Section
806.01, Florida Statutes (1975)....
...Judgments affirmed; sentences amended. NOTES [1] Llano v. State,
271 So.2d 34 (Fla. 3d DCA 1972), decided under a prior statute and relied upon by the appellant, does not hold to the contrary but holds ownership was adequately established to withstand possible double jeopardy. [2] Section
790.161, Florida Statutes (1975), states: "Throwing, placing or discharging any destructive device or attempt so to do, felony; penalties....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...d not make much sense. Accordingly, we reject this interpretation since courts will not ascribe to the legislature an intent to create *501 an absurd result. Thomas v. State,
317 So.2d 450 (Fla. 3d DCA 1975), cert. denied,
333 So.2d 465 (Fla. 1976). Section
790.161 provides that it is unlawful for any person to throw, place or discharge a destructive device with intent to do bodily harm or damage to property. Section
790.162, which essentially tracks the same language, was obviously intended to cover a threat to carry out the conduct proscribed by section
790.161....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...Appellant, Learnhart Rhoden, was initially charged as a juvenile for the offense of discharging a destructive device. He was subsequently tried as an adult and was found guilty as charged. The court sentenced him to a mandatory term of imprisonment of ten years pursuant to section 790.161(3), Florida Statutes (1981)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...Stat., punishable up to thirty years' imprisonment. Count 26 : first degree arson in violation of Section
806.01(1), and
775.087(2), Fla. Stat., punishable up to thirty years' imprisonment. Count 32 : unlawfully discharging destructive device in violation of Section
790.161(2), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2003 WL 22715824
...The state contends that "discharge" is not synonymous with "explosion," and there is substantial evidence to support a "discharge." The resolution of this issue requires us to construe the statutory provision. Appellant was charged with and convicted of a violation of section 790.161, Florida Statutes (1999), which provides that "[a] person who willfully and unlawfully makes, possesses, throws, projects, places, discharges, *497 or attempts to make, possess, throw, project, place, or discharge any destructive device" is guilty of a second degree felony when there is an intent to damage property. § 790.161(2)....
...efinition is provided for the term "discharge." We conclude that "discharge" must mean something different than "makes, possesses, throws, projects, places," as the statute provides those as alternative means of committing the substantive crime. See § 790.161....
...Construing the statute most favorably to the defendant, we conclude that the state did not prove that the destructive device discharged so as to mandate sentencing appellant under the 10/20/Life statute to twenty years for this crime. For the foregoing reasons, we affirm appellant's convictions but reverse his sentence under section 790.161 and remand for resentencing....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1995 WL 123620
...Gen., Tallahassee, and Anne Y. Swing, Asst. Atty. Gen., Tampa, for appellant. No appearance for appellee. RYDER, Acting Chief Judge. The State of Florida challenges the trial court's order dismissing the charges of discharging a destructive device in violation of section
790.161, Florida Statutes (1991), and declaring unconstitutional sections
790.001(4)-(5) and
791.01(4)(a), Florida Statutes (1991)....
...There are approximately fifteen grains in one gram. We excerpt the following analysis from the trial judge's order holding the statute unconstitutional: The constitutional complaint to be resolved centers on three assertions regarding Sections
790.001(4) and (5),
790.161, and
791.01(4)(a), Florida Statutes (1991)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2014 WL 1839108, 2014 Fla. App. LEXIS 6895
...perly be convicted of firearm possession charge). Accordingly, Gross is entitled to have his conviction for possession and discharge of destructive device vacated. AFFIRMED, in part, REVERSED, in part; and REMANDED. COHEN and WALLIS, JJ„ concur. . § 790.161(2), Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1991 WL 15557
...On the other hand, pursuant to section
893.135(3), Florida Statutes (1989), drug traffickers shall not "be eligible for parole prior to serving the mandatory minimum term of imprisonment prescribed in this section" but gain time is not precluded. Less clear wording is found in section
790.161, Florida Statutes (Supp....
...90-124, Laws of Florida, effective October 1, 1990, which does not mention gain time but which requires certain offenders "to serve a term of imprisonment of not less than" a certain number of years, "before becoming eligible for parole." Presumably (and paradoxically) gain time could shorten a sentence under section 790.161, but the inmate would never be eligible for parole unless he had served the full mandatory minimum sentence....
CopyPublished | Florida 5th District Court of Appeal | 2007 Fla. App. LEXIS 7154, 2007 WL 1372947
...The information alleged that the offense occurred on September 24, 1994. In 1994, section
775.082(1), Florida Statutes (Supp.1994), provided that a person convicted of any capital felony other than murder in the first degree or a capital felony under section
790.161, Florida Statutes, was required to be sentenced to life imprisonment, but was eligible for parole after serving twenty-five years....
...ty-five-year term, or the trial court may correct the sentence to include the minimum mandatory provision. AFFIRMED IN PART; REVERSED IN PART AND REMANDED. SAWAYA, MONACO and TORPY, JJ., concur. . Capital sexual battery is not a capital felony under section 790.161....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 1872, 1991 WL 29483
...The entries for the degree of each crime on the written judgment have been inadvertently transposed. Count 1, conspiracy to discharge a destructive device under section
777.04(3), Florida Statutes (1985), should be indicated as a second-degree felony. Count 2, discharge of a destructive device under section
790.161(3), Florida Statutes (1985), should be indicated as a first-degree felony....
CopyPublished | Florida 5th District Court of Appeal | 1992 Fla. App. LEXIS 6749, 1992 WL 143603
...1 We further hold that the crime of culpable negligence, a misdemeanor under section
784.05(2), Florida Statutes, is not a necessarily lesser included offense of the *1307 offense of possessing a destructive device resulting in bodily injury as defined in section
790.161, Florida Statutes, and that under the allegations in the charging document the misdemeanor culpable negligence offense was not a permissive lesser included offense of the destructive device offense as alleged, although the facts in th...
CopyPublished | Florida 5th District Court of Appeal | 1997 WL 47636
...rule 3.702(d)(18)(A) by providing written reasons for departure. AFFIRMED. PETERSON, C.J., concurs. GRIFFIN, J., concurs in result. NOTES [1] §
790.165(2), Fla. Stat. (1995). [2] §
790.163, Fla. Stat. (1995). [3] §
790.164, Fla. Stat. (1995). [4] §
790.161, Fla....
CopyPublished | Florida 3rd District Court of Appeal | 1978 Fla. App. LEXIS 15596
property of Air Canada, in violation of Florida Statute
790.161. Appellant was tried in the Circuit Court
CopyPublished | Supreme Court of Florida
...Jury
Instr. (Crim.) 10.7(d) (Possessing, Throwing, Making, Placing, Projecting, or
Discharging a Destructive Device Resulting in Death).
Next, the titles of instructions 10.7(a), 10.7(b), and 10.7(c) are amended to
include “possessing” to track section 790.161, Florida Statutes (2018), and the
concept of “possession,” as authorized in In re Standard Jury Instructions in
Criminal Cases—Report 2017-03, 238 So....
...2018), is also added to
instructions 10.7(a), 10.7(b), and 10.7(c).
In instruction 10.7(b), “person” is added in element 2a and “another person”
is substituted for “(victim)” in element 2b to track the applicable statutory
provisions. See §
790.161(2), Fla. Stat. (2018).
-2-
Instruction 10.7(c) is amended to add “(Defendant)” to element one and
“person” to element two to better tie the elements together and track the language
of section
790.161(3), Florida Statutes (2018).
Finally, instruction
10.13 is amended to include “shot a firearm that would
produce death or great bodily harm” as an optional element based upon case law
interpreting section
790.19, Florida Statutes (2018)....
...authorizing the
instruction.
-4-
APPENDIX
10.7(a) POSSESSING, THROWING, MAKING, PLACING, PROJECTING,
OR DISCHARGING A DESTRUCTIVE DEVICE
§ 790.161(1), Fla._Stat.
To prove the crime of (crime charged), the State must prove the
following element beyond a reasonable doubt:
(Defendant) willfully and unlawfully
[made]
[possessed]...
..., PROJECTING,
OR DISCHARGING A DESTRUCTIVE DEVICE
[WITH INTENT TO DO [BODILY HARM] [PROPERTY DAMAGE]]
[RESULTING IN DISRUPTION OF [GOVERNMENTAL OPERATIONS]
[COMMERCE] [THE PRIVATE AFFAIRS OF ANOTHER PERSON]]
§ 790.161(2), Fla._Stat.
To prove the crime of (crime charged), the State must prove the
following two elements beyond a reasonable doubt:
1....
...two or
more persons may possess a destructive device.
-7-
Lesser Included Offenses
POSSESSING, THROWING, MAKING, PLACING, PROJECTING,
OR DISCHARGING DESTRUCTIVE DEVICE, ETC. —
790.161(2)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Possessing, throwing,
790.161(1) 10.7(a)
making placing,
projecting, or
discharging destructive
device
Aggravated assault
784.021 8.2
Assault
784.011 8.1
Comment
This instruction was adopted in 1992 and amended in 2019.
10.7(c) POSSESSING, THROWING, MAKING, PLACING, PROJECTING,
OR DISCHARGING A DESTRUCTIVE DEVICE RESULTING IN
[BODILY HARM TO ANOTHER PERSON] [PROPERTY DAMAGE]
§
790.161(3), Fla._Stat.
To prove the crime of (crime charged), the State must prove the
following two elements beyond a reasonable doubt:
1....
...-9-
Lesser Included Offenses
POSSESSING, THROWING, MAKING, PLACING, PROJECTING,
OR DISCHARGING DESTRUCTIVE DEVICE RESULTING IN
[BODILY HARM TO ANOTHER PERSON] [PROPERTY
DAMAGE]—
790.161(3)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Possessing, throwing,
790.161(1) 10.7(a)
making, placing,
projecting, or
discharging destructive
device
Possessing, throwing,
790.161(2) 10.7(b)
making, placing,
projecting, or
discharging destructive
device, etc.
Aggravated assault
784.021 8.2...
CopyPublished | Supreme Court of Florida
...in 1997 [
697 So. 2d 84],
2008 [
994 So. 2d 1038], 2014 [
137 So. 3d 995], and 2018 [
236 So. 3d 282], and
2018.
10.7(d) POSSESSING, THROWING, MAKING, PLACING, PROJECTING,
OR DISCHARGING A DESTRUCTIVE DEVICE RESULTING IN DEATH
§
790.161(4), Fla._Stat.
In the absence of an express concession that the homicide was not excusable
or justified, the trial judge must also read Instruction 7.1, Introduction to
Homicide.
To prove the crime of (crime charged), the State must prove the
following two elements beyond a reasonable doubt:
1....
..., two or
more persons may possess a destructive device.
- 14 -
Lesser Included Offenses
POSSESSING, THROWING, MAKING, PLACING, PROJECTING,
OR DISCHARGING DESTRUCTIVE DEVICE —
790.161(4)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Possessing, throwing,
790.161(13) 10.7(ac)
making, placing,
projecting, or
discharging destructive
device resulting in
bodily harm
Possessing, throwing,
790.161(31) 10.7(ca)
making, placing,
projecting, or
discharging destructive
device
Possessing, throwing,
790.161(2) 10.7(b)
making, placing,
projecting, or
discharging destructive
device, etc.
Aggravated assault
784.021 8.2...
CopyPublished | Supreme Court of Florida | 22 Fla. L. Weekly Supp. 753, 1997 Fla. LEXIS 2097
concur. ANSTEAD, J., concurs in result only. . §
790.161(1), Fla. Stat. (1995) (third-degree felony if
CopyPublished | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 12528, 2015 WL 4945022
...uire a mandatory minimum twenty-year sentence pursuant to section
775.087(2)(a)2, Florida Statutes (2013) (10-20-Life law), the arson charge contains all of the elements of the separate charge of possessing and discharging a destructive device under section
790.161(3), Florida Statutes (2013). No other issue warrants relief or merits discussion. Schoonover was charged in a two-count information as follows: COUNT I MAKE/POSSES/THROW/PROJ/PLACE/DIS-CHARGE DESTRUCTIVE DEVICE-POSSESSION AND DISCHARGE (FI)
790.161(3),
775.087(2)(a)(l) and
775.087(2)(a)(2) did willfully and unlawfully make, possess, throw, project, place,, or discharge a destructive device, to wit: Molotov cocktail(s), which resulted in property damage to the residence located at 13130 Hanley Drive in Spring Hill, Florida, and during the course of the commission of the offense, KRAIG ALAN SCHOONOVER actually possessed and discharged a “destructive device” as that term is defined in s.
790.001, in violation of Florida Statute
790.161(3),
775.087(2)(a)(l) and
775.087(2)(a)(2); COUNT II ARSON-DWELLING (FI) — POSSESSION AND DISCHARGE
806.01(l)(a),
775.087(2)(a)(l) and
775.087(2)(a)(2) did unlawfully and willfully, by fire or explosion, damage or cause to be damaged a dwell...
