Arrestable Offenses / Crimes under Fla. Stat. 790.235
S790.235 - INCENDIARY DEVICE-POSSESS - VIOLENT CAREER CRIMINAL POSSESS INCENDIARY DVC - F: F
CopyCited 88 times | Published | Supreme Court of Florida | 2000 WL 581696
...l sentencing provisions addressed in chapter 96-388. In sections 44, 45, and 46 of chapter 96-388, the Legislature addressed several statutory provisions that previously were addressed in chapter 95-182; specifically, sections
775.084,
775.0842, and
790.235, Florida Statutes....
...unishment for those crimes made punishable under this section, and to this end, a reference to this section constitutes a general reference under the doctrine of incorporation by reference." In section 45 of chapter 96-388, the Legislature reenacted section 790.235, Florida Statutes, which is the statutory section establishing the crime of unlawful possession of a firearm by a violent career criminal....
...n
775.0842, Florida Statutes, the statute establishing which persons that are subject to career criminal prosecution. See Ch. 95-182, § 5 at 1671; see also Thompson,
750 So.2d at 647. Finally, in section 7 of chapter 95-182, the Legislature created section
790.235, Florida Statutes, which sets forth the substantive crime of unlawful possession of a firearm by a violent career criminal....
CopyCited 67 times | Published | Supreme Court of Florida | 1999 WL 1244518
...In section 7 of chapter 95-182, the Legislature created and defined the criminal offense of "possession of a firearm by violent career criminal" and also established sentencing procedures and penalties for that offense. See Ch. 95-182, § 7, at 1673 (creating section 790.235, Florida Statutes)....
CopyCited 41 times | Published | Florida 2nd District Court of Appeal | 2002 WL 80256
...ovisions: section 3 amends section
775.084, Florida Statutes (Supp.1998), to define a "three-time violent felony offender" and to impose minimum mandatory prison terms for felons sentenced as such; section 6 changes a reference to section
775.084 in section
790.235, Florida Statutes (1997), to conform to the "three-strikes" amendment....
...The Senate again refused to concur in House Amendment 1 and certified its action to the House on May 4, 2001. Fla. S. Jour. 1589 (Reg.Sess. 2001). At this point the bill died. [5] In chapter 96-388, section 45, at 2336, Laws of Florida, the legislature reenacted section
790.235, Florida Statutes, which established the crime of unlawful possession of a firearm by a violent career criminal. This provision was not specifically challenged in Salters v. State,
758 So.2d 667 (Fla.2000). The Salters court left open the question of whether the reenactment of section
790.235 closed the window for persons attempting to challenge a conviction under that particular statute on single subject grounds....
CopyCited 21 times | Published | Supreme Court of Florida | 2004 WL 2197021
...officer. Section 5: amends section
784.08 to provide a mandatory minimum sentence for aggravated assault on a person 65 years or older and for aggravated battery on a person 65 years or older. Section 6: amends references to section
775.084 found in section
790.235, in conformity with section 3....
...trike" violent felony provisions: section 3, which amends section
775.084 to define "three-time felony offender" and provide mandatory minimum terms for persons meeting the criteria, and section 6, which amends references to section
775.084 found in section
790.235 to conform to section 3....
...ol release, or early release; amending ss.
784.07 and
784.08, F.S.; providing minimum terms of imprisonment for persons convicted of aggravated assault or aggravated battery of a law enforcement officer or a person 65 years of age or older; amending s.
790.235, F.S., relating to prohibitions against, and penalties for, unlawful possession or other unlawful acts involving firearm, electric weapon or device, or concealed weapon by a violent career criminal; conforming cross references to changes made by the *1084 act; creating s....
CopyCited 11 times | Published | Florida 3rd District Court of Appeal | 2003 WL 289338
...Felony Offender Act; Section 4 creates a minimum mandatory for assault and battery against certain public employees; Section 5 creates a minimum mandatory for assault and battery against persons over the age of 65; Section 6 modifies the language in section
790.235 to accommodate the changes made in adopting the `3-Strikes' law; Section 7 creates the new offense of a `Repeat Sexual Batterer' and corresponding minimum mandatory; Section 8 amends section
794.011 to accommodate the `Repeat Sexual b...
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 1997 WL 557646
...By petition for a writ of certiorari, the State challenges an order in limine entered by the trial court. We deny the petition. Defendant-respondent Samuel Emmund is charged with possession of a firearm by a violent career criminal in violation of section 790.235, Florida Statutes (1995)....
...[1] Under the statute, to qualify as a violent career criminal the defendant must have prior convictions or adjudications of delinquency for three enumerated felonies, and must have previously been incarcerated in state or federal prison. See id. §§
790.235(2),
775.084(1)(c). Defendant's prior record consists of armed robbery, carrying a concealed firearm, and car burglary. Conviction of possession of a firearm by a violent career criminal carries a mandatory minimum term of fifteen years' imprisonment. See Id. §
790.235(1)....
...prejudice the right to a fair trial. The court ruled that the State could inform the jury of defendant's actual prior convictions. The State has petitioned for a writ of certiorari. The term "violent career criminal" is a term of art under sections
790.235 and
775.084(1)(c), Florida Statutes....
...hat is commonly understood as a violent offense. [2] The trial court ruled: Although the court is prohibiting the State from referring to the defendant as a "violent career criminal", the State can proceed with its prosecution of the defendant under section 790.235....
...This order should in no way interfere with the State's ability to prove its case or proceed with prosecution of the defendant, but will deprive [the] State of an unfair ... advantage over the defendant mandated by the Legislature. If the defendant is convicted, he can be sentenced under section 790.235 Order at 1-4 (footnote omitted)....
...The real issue to be adjudicated in the trial court is whether the defendant was in possession of a firearm on March 12, 1996. There is no significant controversy about the defendant's prior record or about the fact that the defendant qualifies under section 790.235....
...he defendant possessed the firearm on the date charged. We conclude that the trial court's ruling was within the bounds of sound discretion and did not depart from the essential requirements of law. Certiorari denied. NOTES [1] The statute provides: 790.235 Possession of firearm by violent career criminal unlawful; penalty. (1) Any person who meets the violent career criminal criteria under s....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 17922, 2010 WL 4723042
...on manslaughter by act, requiring the reversal of appellant's second-degree murder conviction pursuant to Montgomery and Riesel. Second, appellant claims that his dual convictions for possession of a firearm by a violent career criminal pursuant to section
790.235, Florida Statutes (2007), and possession of a firearm by a convicted felon pursuant to section
790.23, Florida Statutes (2007), violated the constitutional prohibition against double jeopardy....
...1st DCA 2001) (holding that the offense of carrying a concealed firearm by a convicted felon set out in section
790.23, Florida Statutes, is a lesser included offense of the offense of carrying a concealed firearm by a violent career criminal set out in section
790.235, Florida Statutes)....
...sion of a firearm by a violent career criminal pursuant to section
775.084(4)(d)1., Florida Statutes (2007), which requires that violent career criminals be sentenced to life for first-degree felonies, because sentencing should *163 be controlled by section
790.235, Florida Statutes (2007), which provides in pertinent part: (1) Any person who meets the violent career criminal criteria under s....
...m of 15 years' imprisonment; however, if the person would be sentenced to a longer term of imprisonment under s.
775.084(4)(d), the person must be sentenced under that provision. Otherwise, appellant claims that section
775.084(4)(d)1. would nullify section
790.235(1) by always requiring a life sentence....
...unless it finds that a violent career criminal sentence is not necessary for the protection of the public pursuant to section
775.084(4)(e), in which case the trial court has the discretion to impose a prison sentence of up to thirty years with a mandatory minimum of fifteen years pursuant to section
790.235(1)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2003 WL 22056055
...ent career criminal because the record demonstrates that the State did not prove the essential elements *251 of that offense. Specifically, the State did not prove that Baldwin possessed a concealed weapon. Baldwin was charged with two violations of section 790.235, Florida Statutes (1999), which states in pertinent part: (1) Any person who meets the violent career criminal criteria under s....
...Section
790.001 also defines "firearm" and "concealed firearm." §
790.001(2), (6). It is undisputed that Baldwin's gun constitutes a "firearm" as that term is defined in chapter 790 and that he was properly convicted for possession of a firearm by a violent career criminal in violation of section
790.235....
...I agree with the majority's conclusion that Baldwin's convictions and sentences for carrying a concealed weapon by a violent career criminal and possession of a firearm by a violent career criminal cannot both be upheld. However, I disagree with the majority's reasoning and would reverse because section 790.235, Florida Statutes (1999), does not authorize separate convictions and sentences based upon one incident involving Baldwin's possession of a single gun....
...2d DCA 1983), approved,
450 So.2d 480 (Fla.1984); Burk v. State,
705 So.2d 1003, 1004 (Fla. 4th DCA 1998). Where the "legislature does not establish the allowable unit of prosecution with clarity, the ambiguity must be resolved in the accused's favor." Grappin,
427 So.2d at 762. A plain reading of section
790.235 suggests that the legislature did not intend to create two separate offenses for the simultaneous conduct of possessing a firearm and carrying a concealed weapon when only one item is at the heart of the conduct. Section
790.235(1) provides the following: Any person who meets the violent career criminal criteria under s....
...prosecution was intended. Thus, it appears that the legislature identified two forms of conduct, either of which gives rise to a single unit of prosecution. [2] *254 While it may be possible for a defendant to be charged with multiple violations of section
790.235 based upon the simultaneous possession of more than one of the items identified in the statute, see Grappin,
427 So.2d at 763, that scenario is not present here because Baldwin possessed only one gun. Moreover, as this court noted in Grappin, to the extent that the statute is not clear as to the allowable unit of prosecution, the ambiguity must be resolved in the defendant's favor. Id. at 762. Section
790.235 addresses two types of conduct that are relevant here: first, it prohibits a violent career criminal from possessing a firearm; second, it prohibits a violent career criminal from carrying a concealed weapon....
...rt the conclusion that a firearm is a deadly weapon and, therefore, may be carried in a manner that qualifies *257 it as a concealed weapon. In the present case, involving one incident and one gun, I agree that Baldwin cannot be punished twice under section 790.235....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1998 WL 658269
...Daniels, Public Defender; Angela Shelley, Assistant Public Defender, Tallahassee, for Appellant. Robert A. Butterworth, Attorney General; Kristina White, Assistant Attorney General, Tallahassee, for Appellee. DAVIS, Judge. Lavon D. Jackson appeals his conviction for possession of a firearm by a violent career criminal under section 790.235, Florida Statutes (1995)....
...ainst ex post facto laws [3] were violated by virtue of his conviction under this statute because the predicate offenses necessary to qualify him as a violent career criminal were juvenile adjudications of delinquency predating the effective date of section 790.235. He further asserts that the trial court erred in denying his motion to dismiss the jury venire after the prospective jurors were made aware that there were three other charges pending against him. We conclude that section 790.235 is constitutional, both facially and as applied to Jackson....
...084(1)(c), Florida Statutes (1995). [5] The statute under which Jackson was convicted was enacted effective October 1, 1995. See Ch. 95-182, §§ 7, 12, at 1673, 1675, Laws of Fla. We find no merit to Jackson's challenges to the constitutionality of section 790.235. Jackson argues that section 790.235 is arbitrary and oppressive in violation of his due process rights and violates the equal protection clause because it bears no rational relationship to the purpose of the statute....
...convicted felons from possessing firearms is to protect the public prospectively by preventing such possession by those "who, because of their past conduct, have demonstrated their unfitness to be entrusted with such dangerous instrumentalities." In section
790.235, the legislature has created a new substantive offense which does not apply retroactively to earlier offenses but operates prospectively. Cf. State v. Ferguson,
691 So.2d 578 (Fla. 2d DCA 1997)(holding that the minimum mandatory sentence imposed pursuant to section
790.235 was not permissive, the court stated that "section
790.235 is a substantive offense statute, not a sentencing statute"). The only punishment imposed on Jackson pursuant to this statute is for the current offense, which took place after the effective date of section
790.235....
...It is hard to envision more compelling circumstances for application of the harmless error analysis. NOTES [1] U.S. Const. Amend. XIV, § 1; Fla. Const. Art. I, § 9. [2] U.S. Const. Amend. XIV, § 1; Fla. Const. Art. I, § 2. [3] U.S. Const. Art. I, §§ 9, 10; Fla. Const. Art. I, § 10. [4] Section 790.235, Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2004 WL 2008199
...Albertine Jr., Assistant Public Defender, Bartow, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee. CANADY, Judge. Jeffery Pope appeals his conviction and sentence for a violation of section
790.235, Florida Statutes (2000), which makes it unlawful for a person who meets the criteria for violent career criminal sentencing to possess a firearm. We affirm his conviction without comment. However, we reverse his thirty-five-year sentence because it was not authorized by law. A violation of section
790.235 is a first-degree felonya level of offense ordinarily punishable by up to thirty years in prison. See §
775.082(3)(b), Fla. Stat. (2000). Pope was also subject to a fifteen-year minimum mandatory sentence for this offense. See §
790.235(1)....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2005 WL 3536230
...This is an appeal from an order denying Sergio Luis Quintana's motion to vacate guilty plea on the ground that the plea was not knowingly and voluntarily entered. Appellant, Sergio Luis Quintana, was charged with possession of a firearm by a violent career criminal pursuant to § 790.235, Fla....
...(2004), and fleeing a law enforcement officer under on §
316.1935(2), Fla. Stat. (2004). Based upon advice provided to him pursuant to an erroneous impression by all concernedthe State, his counsel and the *992 courtthat the fifteen-year minimum mandatory sentence mandated for a violation of section
790.235 could be waived, see State v. Ferguson,
691 So.2d 578 (Fla. 2d DCA 1997)("the minimum mandatory sentence for possession of a firearm by a violent career criminal contained in section
790.235 is not permissive")(emphasis added), appellant entered guilty pleas on all charges in exchange for a sentencing delay of ninety days and the promise by the State that if appellant provided the State with "good cases" in the interim, it would consider waiving the minimum mandatory sentencing feature of section
790.235 on the possession charge at the time of sentencing....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2014 Fla. App. LEXIS 13453, 2014 WL 4249749
...ress”). Under these facts, Bacon’s statements were excited utterances. Accordingly, we find that, under the tipsy coachman doctrine, the admission of the statements was not error. AFFIRMED. EVANDER, J„ and HARRIS, C.M., Senior Judge, concur. . § 790.235, Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1997 WL 169538
...James Marion Moorman, Public Defender, and Kathleen Calcutt, Assistant Public Defender, Bartow, for Appellee. BLUE, Judge. The State appeals the sentence imposed on Billy Jo Ferguson following his guilty plea to possession of a firearm by a violent career criminal in violation of section 790.235, Florida Statutes (1995)....
...statute. Accordingly, we reverse. It is undisputed that Ferguson qualified for sentencing as a violent career criminal and that he had a firearm in his custody, control or possession. The State argues that the minimum mandatory sentence required by section
790.235 is similar to the three-year minimum mandatory sentence required for certain offenses involving the use or possession of a firearm pursuant to section
775.087(2)....
...Ferguson relies on the line of cases holding that sentencing under the habitual offender statute is discretionary, not mandatory. See Burdick v. State,
594 So.2d 267 (Fla.1992). After examining the pertinent statutes, we conclude that the sentence required by section
790.235 is mandatory....
...As with the habitual felony offender and habitual violent felony offender statutes, the trial judge does have the authority to determine that sentencing as a violent career criminal under section
775.084(1)(c) is not necessary for the protection of the public. See §
775.084(3)(b). However, unlike section
775.084(1)(c), section
790.235 is a substantive offense statute, not a sentencing statute. Whether a substantial prison sentence is necessary for the protection of the public is simply not a consideration under section
790.235. Therefore, as with the three-year minimum mandatory sentence for certain offenses involving firearms, *579 the minimum mandatory sentence for possession of a firearm by a violent career criminal contained in section
790.235 is not permissive. In other words, if a defendant charged with violating section
790.235 is qualified for violent career criminal sentencing and possesses a firearm, he or she must receive the fifteen-year minimum mandatory sentence....
CopyCited 1 times | Published | Supreme Court of Florida | 2000 WL 328997
...HARDING, C.J., and SHAW, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur. WELLS, J., dissents. NOTES [1] Through the passage of chapter 95-182, Laws of Florida, the Legislature created the possession of a firearm offense for which McGowan was convicted. See Ch. 95-182, § 7, at 1673 (creating section 790.235, Florida Statutes). McGowan committed the underlying offense in this case on December 11, 1995, well before the Legislature reenacted section 790.235. See Ch. 96-388, 45, at 2336, Laws of Fla. (reenacting section 790.235, Florida Statutes, effective October 1, 1996)....
CopyPublished | Florida 5th District Court of Appeal | 2003 Fla. App. LEXIS 13284, 2003 WL 22056414
MONACO, J. James Nelson Morrow appeals the summary denial of his Rule 3.850 motion for post-conviction relief. Morrow pled guilty to possession of a firearm by a violent career criminal in violation of section 790.235, Florida Statutes, and was sentenced to life imprisonment as a violent career criminal....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 12004, 1997 WL 655958
WEBSTER, Judge. Appellant was charged with possession of a firearm by a violent career criminal, in violation of section 790.235(1), Florida Statutes (1995). Following the denial of his motion to dismiss the information on the ground that section 790.235(1) is unconstitutional, appellant entered a plea of no contest, reserving the right to appeal the adverse ruling on the motion. Appellant contends that the statute is unconstitutional because it is susceptible to “arbitrary and capricious” application, and because it is impermissibly vague. We affirm. To the extent relevant, section 790.235(1) reads: Any person who meets the violent career criminal criteria under s....
...ies a concealed weapon, including a tear gas gun or chemical weapon or device, commits a felony of the first degree.... The term “violent career criminal” is clearly (and extensively) defined in section
775.084(l)(c). As with statutes generally, section
790.235(1) is presumed to be constitutional, and the burden rests on appellant to establish the contrary....
...rutiny under a void-for-vagueness challenge if it is specific enough to give persons of common intelligence and understanding adequate warning of the proscribed conduct.” Sanicola v. State,
384 So.2d 152, 153 (Fla.1980). Section
790.23, which like section
790.235, makes it a crime for a convicted felon “to own or to have in his or her care, custody, possession, or control any firearm or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device,” has been previously held not to be unconstitutionally vague. Ransom, v. Wainwright,
553 F.2d 900 (5th Cir.1977). Section
790.235 merely provides for a more severe penalty if the convicted felon also “meets the violent career criminal criteria under s.
775.084(1)(e).” Those criteria are clearly delineated in section
775.084(1)(c). Therefore, to determine whether one is susceptible to prosecution for a violation of section
790.235, one need only read that section in conjunction with section
775.084(1)(c)....
CopyPublished | Supreme Court of Florida | 2000 WL 674695
...950,
145 L.Ed.2d 825 (2000); State v. Johnson,
616 So.2d 1, 3-4 (Fla.1993). [2] Through the passage of chapter 95-182, Laws of Florida, the Legislature created the possession of a firearm offense for which Levan was convicted. See Ch. 95-182, § 7, at 1673 (creating section
790.235, Florida Statutes)....
CopyPublished | Florida 3rd District Court of Appeal | 2013 Fla. App. LEXIS 11231, 2013 WL 3723213
...defendant having been previously convicted of at least one of the aforestated felonies within the past five years, or having been released from serving a prison sentence on one of the aforestated felonies within the past five years, in violation of s. 790.235 Fla....
...3d DCA 2005) ("Following Perkins, with no record evidence that Hearns' conduct against a law enforcement officer was a forcible felony, it cannot be used as a qualifying prior for purposes of VCC sentencing.”) . State v. Ferguson,
691 So.2d 578, 578 (Fla. 2d DCA 1997) ("However, unlike section
775.084(l)(c), section
790.235 is a substantive offense statute, not a sentencing statute”); Jackson v. State,
729 So.2d 947, 950 (Fla. 1st DCA 1998) (“In section
790.235, the legislature has created a new substantive offense which does not apply retroactively to earlier offenses but operates prospectively.”)....
CopyPublished | Florida 1st District Court of Appeal | 2001 Fla. App. LEXIS 796, 2001 WL 76320
ALLEN, J. The appellant in this direct criminal appeal challenges his conviction pursuant to section 790.235, Florida Statutes (1997)(violent career criminal carrying a concealed weapon)....
...c) pretrial motion to dismiss the information and again in a motion for judgment of acquittal at trial. The appellant is entitled to relief pursuant to only the second motion because the first motion was not under oath as specified by rule 3.190(c). Section 790.235, Florida Statutes (1997), makes it a first degree felony for “any person who meets the violent career criminal criteria under s....
CopyPublished | Florida 3rd District Court of Appeal | 2006 Fla. App. LEXIS 785, 2006 WL 168001
PER CURIAM. The State appeals a sentence imposed after a court-offered plea agreement. In the answer brief the defense appears to concede that the fifteen-year term is a mandatory minimum sentence under section 790.235, Florida Statutes (2002). Accordingly we remand the matter with directions to correct the sentencing order to reflect that the fifteen-year sentence for violation of 790.235, Florida Statutes (possession of a firearm or ammunition by violent career criminal) is a mandatory minimum sentence of fifteen years....
CopyPublished | Supreme Court of Florida | 2001 WL 40388
...s the single subject requirement contained in article III, section 6 of the Florida Constitution. We have jurisdiction. See Art. V, § 3(b)(4), Fla. Const. Thomas was convicted of possession of a firearm by a violent career criminal, in violation of section
790.235(1), Florida Statutes (1995), and sentenced as such pursuant to section
775.084(1)(c), Florida Statutes (1995)....
CopyPublished | Florida 3rd District Court of Appeal | 2005 Fla. App. LEXIS 5059, 2005 WL 840442
...uidelines. See Cameron v. State,
807 So.2d 746, 747-48 (Fla. 4th DCA 2002). There is a dispute between the parties regarding count three. The defendant was charged with possession of a firearm by a violent career criminal (“VCC”) in violation of section
790.235, Florida Statutes (1997)....
...orders in the case. This came about because the trial court viewed count three as being a conviction for possession of a firearm by a violent career criminal, and imposed a sentence of forty years with a fifteen year mandatory minimum sentence. See § 790.235(1), Fla....
