Possession or Discharge of Destructive Device in Florida

Possession or Discharge of a Destructive Device may subject a person to Florida’s 10/20/Life law.

Under Florida Statute 790.161, the crime of Possession or Discharge of a Destructive Device is committed when a person willfully and unlawfully makes, possesses, throws, projects, places, or discharges any destructive device or attempts to make, possess, throw, project, place, or discharge a destructive device.

Aggravating Factors

The crime of Possession or Discharge of a Destructive Device will be enhanced if any of the following aggravated factors are shown to exist:

1. The intent to cause property damage or bodily injury;
2. Actual property damage or bodily injury; or
3. Death of an individual.

Destructive Device

A Destructive Device is defined as any of the following: [1]

• A bomb, grenade, mine, rocket, missile, pipe-bomb, or similar device containing an explosive, incendiary, or poison gas;
• Any frangible container filled with an explosive, incendiary, explosive gas, or expanding gas, which is designed or constructed to explode by such filler and is capable of causing bodily harm or property damage;
• Any combination of parts either designed or intended for use in converting any device into a destructive device and from which a destructive device may be readily assembled;
• Any device declared a destructive device by the Bureau of Alcohol, Tobacco, and Firearms;
• Any type of weapon which will, is designed to, or may readily be converted to expel a projectile by the action of any explosive and which has a barrel with a bore of one-half inch or more in diameter; and
• Ammunition for such destructive devices, but not including shotgun shells or any other ammunition designed for use in a firearm other than a destructive device.

Penalties for Possession or Discharge of Destructive Device

The penalties for the crime of Possession or Discharge of Destructive Device increase based upon whether any aggravated elements are alleged to exist.

Depending on the circumstances of your case, Possession or Discharge of Destructive in Florida can be charged as:

• Simple Possession or Discharge of Destructive Device
• Possession or Discharge with Intent to Damage or Injure
• Discharge of Destructive Device Causing Property Damage or Injury
• Discharge of Destructive Device causing Death

Additionally, under Florida’s 10/20/Life law, a person who is also charged with enumerated violent felonies may be subject to the minimum-mandatory prison sentences as a result of possessing or discharging a Destructive Device to commit those felonies. [2]

Simple Possession or Discharge of Destructive Device

The crime of simple Possession or Discharge of a Destructive Device without any aggravating elements alleged is a Third Degree Felony and is assigned a Level 6 offense severity ranking under Florida’s Criminal Punishment Code

If convicted of Possession or Discharge of Destructive Device with Intent to Damage or Injure, a judge can impose any combination of the following penalties:

• Up to fifteen (15) years in prison.
• Up to fifteen (15) years of probation.
• Up to $10,000 in fines.

Possession or Discharge of Destructive Device with Intent to Damage or Injure

The crime of Possession or Discharge of a Destructive Device occurs if:

1. The act is perpetrated with the intent to cause bodily harm or property damage; or
2. The act results in a disruption of governmental operations, commerce, or the private affairs of another person.

The crime of Possession or Discharge of Destructive Device with Intent to Damage or Injure is a Second Degree Felony and is assigned a Level 6 offense severity ranking under Florida’s Criminal Punishment Code

If convicted of Possession or Discharge of Destructive Device with Intent to Damage or Injure, a judge can impose any combination of the following penalties:

• Up to fifteen (15) years in prison.
• Up to fifteen (15) years of probation.
• Up to $10,000 in fines.

Discharge of Destructive Device Causing Damage or Injury

The crime of Discharge of Destructive Device Causing Damage or Injury occurs if the Destructive Device causes bodily injury or property damage.

The crime of Discharge of Destructive Device Causing Damage or Injury is a First Degree Felony and is assigned a Level 8 offense severity ranking under Florida’s Criminal Punishment Code

If convicted of Discharge of Destructive Device Causing Damage or Injury, a judge is required to impose a minimum prison sentence of 34½ months in prison and can also impose any combination of the following penalties:

• Up to thirty (30) years in prison.
• Up to thirty (30) years of probation.
• Up to $10,000 in fines.

Discharge of Destructive Device Causing Death

The crime of Discharge of Destructive Device Causing Death occurs if the act results in the death of another person.

The crime of Discharge of Destructive Device Causing Death is designated a Capital Offense and carries two possible sentences:

• Life without the possibility of parole; or
• Death.

Life Without the Possibility of Parole

The State has the option to waive the death penalty as a sentencing option and elect to seek just Life in prison.

In those cases in which they waive the death penalty as a sentencing option, a person convicted of Discharge of Destructive Device Causing Death will be sentenced to life in prison without any possibility of parole upon conviction.

Death Penalty

If the State does not waive the imposition of the death penalty and a defendant is convicted of Discharge of Destructive Device Causing Death, the court will conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment. This separate proceeding is known as the Penalty Phase.

Defenses to Possession or Discharge of Destructive Device

In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, specific defenses to the crime of Possession or Discharge of Destructive Device are:

Exempted Device

A Destructive Device does not include: [3]

1. A device which is not designed, redesigned, used, or intended for use as a weapon;
2. Any device, although originally designed as a weapon, which is redesigned so that it may be used solely as a signaling, line-throwing, safety, or similar device;
3. Any shotgun other than a short-barreled shotgun; or
4. Any non-automatic rifle (other than a short-barreled rifle) generally recognized or particularly suitable for use for the hunting of big game.

Non-Explosive Device

To be considered a Destructive Device within the meaning of the statute, the device must employ an explosion caused by combustion or oxidation upon application of heat, flame or shock. [4] If the device simply “explodes” due to the build up of air, it can be argued that the device does not fall under the definition of a destructive device.

Contact Criminal Defense Lawyer Richard Hornsby

If you have been arrested or charged with the crime of Possession or Discharge of Destructive Device in Central Florida or the greater Orlando area, please contact Orlando Criminal Defense Lawyer Richard Hornsby today.

The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.

References

1. Florida Statute 790.001(4)
2. Florida Statute 775.087
3. Florida Statute 790.001(4)(a)-(d)
4. Stacey v. State, 660 So. 2d 1083 (Fla. 5th DCA 1995)