Actual Possession Under the 10-20-Life Law

The Second District Court of Appeals recently decided an issue that my firm has litigated before – the application of a 3-year minimum mandatory sentence to instances in which a convicted felon is in ready reach of a firearm but does not actually have one on his person.  In Gallentine v. State, Case No. 2D10-1869 (Decided March 4, 2011), the Second District Court of Appeals held that a court cannot impose a 3-year minimum mandatory sentence when a convicted felon does have the firearm on his person.

The 10-20-Life law was enacted in response to violent gun crimes all over Florida.  The most well-known provisions call for a 10-year minimum prison sentence if a firearm is used in the commission of a crime, 20 years if the firearm is fired, and life in prison if a discharged bullet strikes another person.  Among its lesser known provisions are the requirement that any convicted felon who is found with a firearm on his person be sentenced to a minimum of three years in prison.

Recently, prosecutors have taken this language and attempted to stretch it to include firearms within “ready reach” of a convicted felon.  Their reasoning, simply stated, is that the Legislature recently expanded the definition of “actual possession” in some cases to include not only items on your person, but also items within “ready reach.”  Prosecutors argued that this expansion applied to the 10-20-Life law as well, even though the 10-20-Life law itself was not specifically amended with this change.

Approximately two years ago, we faced this issue in the Fourth Circuit.  The State attempted to charge my client with the 3-year minimum mandatory for a small, one-shot pistol that was found beneath the seat of his work truck after he was already outside of the truck.  We moved to dismiss the minimum mandatory sentence, arguing that while this may constitute a case of constructive possession, it was not actual possession under the 10-20-Life law.  The Judge granted our motion and sentenced the Defendant, a working father and otherwise reformed citizen, to the time he had already served.  While the State initially appealed the Judge’s ruling, they later abandoned the appeal for reasons unknown.

Gun crimes come in all shapes and sizes, and unless you have an attorney on your side who knows the law and its many applications, you may wind up with an unfair or illegal sentence.  If you are being charged with a crime, don’t face it alone.  Visit my website at http://www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.