1. Trying To Figure Out A Legal Problem: When Does “Commission of a Felony” occur?

I’m having trouble figuring out what something means. I can’t do it in one post so it will take more than that. I like to limit my posts to around 600 words so if you don’t mind the conclusion won’t be reached today. It’ll take me until Friday.

Let me ask you this, what does the term outlined in bold in the following statute mean :

“Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony,  the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendants commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows: . . . ”

I’m interested in finding out what “during the commission of such felony” means. I’m trying to decide when the commission of a felony takes place  as envisioned by that statute. The reason is the crime is changed, the punishment is significantly increased, and time within which a charge can be brought is expanded changing the statute of limitations if a person carries a weapon or firearm.

Is it during the immediate time surrounding the felony? Or, is it during other times also for instance during the planning stage? Or, is it time limited in any manner.

A connected question obviously concerns the purpose of that statute. Plain common sense would indicate that it is to deter people from committing crimes while armed because that increases the likelihood someone will be injured. Although, common sense is sometimes not as common as we like to think especially among appellate judges.

I suggest the best way to figure out what this means is to consider a set of facts. Suppose Spike who lives outside Chicago has Roger, Jimmy  and me over for supper with his family because we went to South Bend to watch a football game. After we eat we move into the backroom of Spike’s third floor apartment off the kitchen which is off-limits to the kids even though they sometimes venture in there. Spike said he wanted to discuss something in private.

We walk over to the small table in the far corner. Roger takes out his .38 special and puts it on the table. Spike says, “Just in case wifey or one of the kids walks in, Roger, can I put that gun over here on the shelf. I don’t want anyone seeing it.”
Roger hands it to Spike who carries it over and puts in on the shelf.

Spike comes back and says: “Glad you guys enjoyed the supper. Wifey’s a great cook. Glad we could get together out here in the windy city. You know I’ve been thinking how Alby is falsely accusing Shorty. It looks like he’s going to frame him. I hate to see him walk and Shorty who is innocent do time. I thought I’d tell you guys about it and suggest you might want to take care of him.”

We nodded. Just then one of his kids came in saying he had a phone call. Spike left. We decided to call it a night.

A couple of nights later after we got back to Boston I was with Jimmy and Roger at the club at our usual table at the back. I ask them if they are interested in killing Alby. None of us particularly like guys who become rats. Even worse are those who bring other guys, especially a local good guy like Shorty, into their crimes who were not there so that they can get a deal.  Roger says “absolutely”, Jimmy nods his head.

(continued tomorrow)


2 thoughts on “1. Trying To Figure Out A Legal Problem: When Does “Commission of a Felony” occur?

  1. Matt:
    Recommended reading: Antonin Scalia’s “A Matter of Interpretation.” He explains in depth the proper approach to statutory/constitutional interpretation; then has people like Tribe, Glendon and Dworkin give their views; then he rebuts their critiques.
    Agree or not, it’s interesting.
    (2) Avoid seeing “penumbras” and “emanations” arising from the text, as they saw in Roe v. Wade.
    (3) A word to the wise: Words have meanings; words are not infinitely malleable to mean whatever we want them to mean.
    (4) Remember the dissenting Florida judge who asked in mockery if someone who was acquitted of conspiracy could be convicted of “murder by gun” if he was sitting in a cabin in Montana with a shotgun on the wall at the time a murder took place in Miami. The “murder by gun” statute, the judge pointed out, was enacted so that when someone was murdered by gun and several armed men were present at the scene, but it could not be determined who actually did the shooting, all armed men present could be convicted of murder by gun.

    1. Bill:

      Dissenting judge you cite is wrong. Florida law requires that only the person with the gun can have the sentence increased. If they cannot figure out who had it then no one gets the increase. Case where two men at scene committed murder and only one had the gun the other could not be charged with the gun enhancement. Must show who had gun.

      The statute was enacted for the simple reason that it was hoped it would discourage people from arming themselves with weapons during the commission of the crime.

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