A Florida Appeals Court Encourages People to Be Armed With Weapons When Committing Felonies

Yesterday I wrote about how a Florida Appeals Court decision will result in former FBI Agent John Connolly dying in prison. I called the decision absurd in part because it held a murder was ongoing three weeks before it took place. It was being committed over a three-week time even though it was a discrete event that actually took place in a minute or two.

The facts most favorable to the state are simple. John Callahan was murdered by Martorano on July 31, 1982. Martorano said he murdered Callahan because three weeks before the murder Connolly passed word to others that the FBI was looking for Callahan. Connolly said if he cooperated he would be able to implicate Martorano and others in a murder committed by Martorano in Oklahoma. He said Martorano should handle it. At the time he met the others in Boston he was wearing his FBI gun.

The issue is whether wearing the gun in Boston three weeks before the murder in Florida Connolly was carrying a gun during the commission of the murder. The Florida court stated Connolly: ” carried during the commission of the murder, and that the crime of second degree murder was ongoing.”

The statute in question here reads:  ” . . .whenever a person is charged with a felony, except . . . , and during the commission of such a felony the defendant carries, displays, uses, threatens, or attempt to use any weapon or firearm, . . . ” 

The obvious intent of the statute is to tell people that if they are planning to commit a felony they will receive an increased penalty if they carry a firearm or weapon while doing it. It is to discourage people from arming themselves when they commit the felony by increasing its penalty.

The most obvious example showing the absurdity of the Florida’s court interpretation would be a case where three armed thugs are planning to rob a local enterprise. Just before they set off on their venture one of them says, “you know, under the law our sentences can be jacked up if we’re caught so let’s not bring our guns.” They take their guns off and put them away. It would seem that is precisely the effect intended by the statute.

But under the Connolly decision it is too late since they have already committed the robbery and are wearing guns. Now, rather than not bringing their guns, one of them says: “it’s too late, we’ve already committed the robbery with our guns, so we might as well wear them. So let’s go and do the robbery.” Rather than deterring the carrying of guns the Connolly decision encourages them. Was that the intent of the statute to make more people carry weapons or firearms when committing felonies?

Whether former FBI Agent John Connolly was a corrupt agent or not is really not the issue. The issue is whether the acts he allegedly committed have been charged properly within the time limits set out in the law by Florida’s statute of limitations. Courts are not supposed to say “look, this defendant is a real bad guy, therefore even though the charges were not brought on time we’ll come up with a way to overlook this.” It might as well say “look, this defendant is a real bad guy therefore even though he didn’t commit the crime we’ll rule that he did.”

When the Florida court takes a statute which is enacted with the express purpose of discouraging people from having weapons or firearms on them during the commission of a felony and suggests that the purpose of the statute was to encourage people to bring weapons or firearms when they commit a felony then there is no law in Florida.


3 thoughts on “A Florida Appeals Court Encourages People to Be Armed With Weapons When Committing Felonies

  1. The Florida judges who ruled against Connolly were totally dishonest. They were intimidated by the corrupt Feds and the FAKE NEWS media. Completely craven and hollow people. You are right there is no law in Florida. Not in the State Courts. Maybe a Trump appointed Federal judge would see what a sham the legal decision was. 2. Your original instinct covering the 2002 Connolly trial in Boston was correct. The Feds wanted Sen. Bulger not Connolly. Because Connolly was honest and wouldn’t invent a story implicating Bulger he was framed by those malefactors on the U S payroll. Justice was not done.

  2. The first Florida Appeals Court, which reversed John Connolly’s conviction, put the matter in a nutshell:

    “Connolly was hundreds of miles away in Boston at the time the discrete act of murder occurred; he may or may not have “carried” his service weapon at the time of the murder. It is beyond question that Connolly’s service weapon was neither available for use nor was it used in the murder; it had absolutely no spatial or temporal relationship to the discrete crime charged; it had no purpose related to the crime charged. See Williams v. State, 622 So.2d 456 (Fla.1993) (finding it error to enhance defendant’s sentence pursuant to sections 775.087(1)-(2), where facts showed the defendant was in Miami at the time the crimes in Pensacola were committed by his cohorts, thus the State consequently failed to show that the defendant had actual physical possession of a firearm during the commission of the crime).”

    What the Appeals Court erroneously did in reversing the lower Appellate Court and reinstating the conviction, was pretend that it made no difference whether the accused was in Montana when the crime was committed in Miami, nor whether the accused had nothing to do with the crime three weeks or three months before it occurred. The Appeals Court acted as if John Connolly had not been acquitted of conspiracy. The Appeals Court convicted John for acts that did not occur “during the commission of the crime”, thus it ignored a long line of Florida cases which held otherwise.
    The Appeals Court twisted the plain meaning of the law beyond all reason and in defiance of all legal precedents. One of the dissenting judges wrote that he could find no precedent in Florida nor anywhere else in America to support the Court’s bizarre reasoning.

  3. Matt, yesterday you asked where I got Colonel Thomas Foley’s statements. It was from a Youtube posting of a speech Foley gave in Somerville in 2012 or 2013. I listened to the whole speech. I can no longer find it on Youtube. I assure you it was there and he said what I said. When he was deputized as a FED by Wyshak he was told there were two villains to pursue: Whitey in Southie; and those at the State House. In his Somerville Speech, Foley then went on to tell a wholly false, wholly debunked tale about Senate President Bill Bulger helping Whitey out of jam. Even Foley admitted to the Somerville audience, that, it may not be true, but he told it anyway.

    2. Yes, you are correct, the only evidence of John Connolly carrying a gun was that he was an FBI agent and when he met with Martorano and Flemmi weeks before the murder of Callahan he was carrying a gun. My further point, however, is that when Callahan was killed, Connolly was on vacation in Martha’s Vineyard and no evidence was introduced he was carrying any gun at that time.

    4. You have to read the dissenting opinions in John Connolly’s case to know how bizarrely the law was stretched to uphold Connolly’s conviction. The dissent repeatedly stated that “during commission of the crime” means during the actual murder, the actual shooting, not during predicate acts, distant as to time and place, which may constitute conspiracy or aiding and abetting. Connolly was acquitted of conspiracy and not charged with aiding or abetting.

    5. Here is the Dissenting Opinion’s opening comments.:

    At the outset, we must recognize the unusual procedural posture of this case. In 2005, the State of Florida decided to charge Connolly with murder in the first degree, as well as conspiracy to commit first-degree murder, although the criminal events occurred twenty-three years earlier, in 1982. The statute of limitation had run on the lesser included felony of second-degree murder, and any such conviction would have to be vacated.8

    After trial, the jury acquitted Connolly of both conspiracy and first-degree murder, but found him guilty of the lesser included offense of second-degree murder as a principal. This result put the State between a rock and a hard place: the State wanted Connolly incarcerated and had risked a great deal to achieve a conviction, but everyone knew that the statute of limitation had run on the crime of second degree murder, and Connolly would have to be released. There was only one way for the State to repurpose the conviction, and that was to argue that Connolly’s conviction for second-degree murder should be reclassified to a life felony pursuant to section 775.087(1), as there is no statute of limitation on a life felony. Connolly would then be exposed at sentencing to a term of years up to life in prison. The problem the State faced is that years of case law had interpreted section 775.087 to require the defendant to have been in actual possession of (carried, displayed, etc.) the weapon during commission of the crime, in order for a conviction to be reclassified. The State then pursued a novel theory to justify reclassification: the State argued that a literal reading of section 775.087(1) required only that the defendant possess “any” weapon or firearm. Thus, the State proposed, if during the commission of the crime the defendant carried “any weapon or firearm,” that defendant’s conviction could be reclassified pursuant to section 775 .087(1). Connolly, though in Boston at the time of the murder, was obligated to wear his FBI-issued service weapon and thus, argued the State, he “carried” a firearm “during the commission of the felony,” referring to the language of section 775.087(1). The State got a verdict that, superficially at least, appeared to allow reclassification on this basis.

    Two questions emerge from this case: What time period is encompassed by the language “during the commission of the offense,” and, as among multiple defendants, to what weapon does the statutory phrase “any weapon or firearm” refer? The controversy over how this specific language within section 775.087(1) should be applied to the facts before us is the crux of this appeal.9 My analysis of the issue on appeal has not changed: the “during the commission” of the murder refers to the discrete and time-limited act of shooting the victim with a firearm; the “any weapon or firearm” refers to one that was used or available for use during commission of that offense. Without the erroneous application of reclassification, Connolly’s conviction for second-degree murder as a lesser included offense of first-degree murder was barred by the applicable statute of limitation, and his sentence should be vacated.10

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