In Florida Almost Every Felony Is Committed With A Weapon or Firearm

This is the third in a series examining the abominable decision by Judge Rothenberg and four other Florida Appeal Court judges in the case of retired FBI Agent John Connolly, The two prior were written on Tuesday and Wednesday of this week.  The first article dealt with the absurdity of saying a murder was ongoing three weeks before it was committed; the second considered how these judges interpreted a Florida statute intended to discourage firearms or weapons at a felony as encouraging them.

Today I discuss another absurd result that comes out of the Connolly ruling. If applied in the manner the decision in the Connolly case was applied. It would make just about every felony in Florida subject to the increased penalty. The statute in question provides: ” . . .whenever a person is charged with a felony, . . .  and during the commission of such a felony the defendant carries, displays, uses, threatens, or attempt to use any weapon or firearm, . . . the felony for which the person is charged shall be reclassified . . . . “

In the Connolly case the state’s evidence was that the defendant Connolly in Boston suggested a potential witness be murdered. At the time he was wearing his FBI gun. Three weeks later 1,500 miles away at the Fort Lauderdale Airport the murder took place by others. The Florida court held that this murder was ongoing or being committed at the time Connolly suggested it. He was wearing a gun at the time so he is subject to having his offense reclassified.

The gun Connolly was wearing in Boston had nothing to do with the murder in Fort Lauderdale. The mere fact he was carrying it at that time was enough in the Florida court’s ruling to say he was carrying it “during the commission” of the murder.

Think of how few felonies are committed where a person did not eat a meal while planning a crime. I assume the person would have a knife and fork when doing that. The Florida court decision would allow his penalty to be enhanced because he had a weapon during the commission of the crime namely, a knife.

Take a case where two people are out boar-hunting with their guns. They plan to confront and beat up a guy who has been giving them trouble. A week later when neither one is carrying a weapon or firearm they run into the guy and severely assault him so that he dies. Under the Florida decision their punishment can be enhanced because they went boar-hunting.

I’ve mentioned how three guys planning to rob an enterprise decide not to bring their guns and how the Florida decision would enhance their punishment nevertheless. Or a guy who is angry at his girl and plans to murder her who visits a gun shop looking to buy a gun and handles several of them but decides against buying them. She is out-of-town and returns a few days later. He goes to her apartment and strangles her.  His visit to the gun store will enhance his penalty.

Then there’s the two mugs who decide to poison another mug Skippy. They go a baseball hitting cage and with a bat swing at the ball to kill time before they meet him at McDonald’s to kill him. When Skippy shows up they tell him they want to go back and hit some more balls. When he gets in the car they hand him a coke with cyanide in it . Skippy dies. Too bad they went to the hitting range and used a bat which is a weapon. Their sentences can be enhanced.

The final example is the hoodlum who is planning to break into the auto dealership with his friend to steal some tires on the Friday following Thanksgiving. Thanksgiving he has his friend over with his family and carves the turkey up and serves it. Too bad he used the carving knife to do that because his crime of breaking and entering is ongoing and he is carrying a weapon his sentence can be enhanced.

The interpretation of a statute should not be done by judges intent on making the law for one case since it has a spill over effect. The Connolly case law is an obvious attempt to turn a law on its head to keep Connolly in prison. That’s a great injustice.

5 thoughts on “In Florida Almost Every Felony Is Committed With A Weapon or Firearm

  1. Correction. It was the 1993 State v. Williams case, where Williams was in Miami and the murders took place in Pensacola, where Fla. Supreme Court threw out the lower court’s interpretation of the enhancement states, quoting Rodriquez.

    “In order for a defendant’s sentence to be enhanced pursuant to section 775.087(1)-(2), Florida Statutes (1991), the State must prove that the defendant had actual physical possession of the weapon. Robins v. State, 602 So.2d 1272 (Fla. 1992); State v. Rodriguez, 602 So.2d 1270 (Fla. 1992). It is undisputed that Williams was in Miami during the commission of the crimes in question. Consequently, the State failed to show that Williams had actual physical possession of a firearm during the commission of the crimes.”

  2. Here is the Florida Supreme Court’s decision in the State v. Rodriquez case (a different case, where the defendant was actually driving the car while his co-defendant was shooting at the cops.)

    “OVERTON, Justice.

    We have for review State v. Rodriguez, 582 So.2d 1189 (Fla. 3d DCA 1991), in which the Third District Court of Appeal certified the following question as being of great public importance:

    Does the enhancement provision of subsection 775.087(1), Florida Statutes (1983), extend to persons who do not actually possess the weapon but who commit an overt act in furtherance of its use by a coperpetrator?
    Id. at 1191.
    We have jurisdiction and answer the question in the negative, finding, in accordance with the district court decision, that section 775.087(1) does not, by its terms, allow for vicarious enhancement because of the action of a codefendant.

    Art. V, § 3(b)(4), Fla. Const.

    The relevant facts reflect that Rodriguez was charged with an attempt to commit murder in the first degree upon allegations that he and his codefendant fired a deadly weapon at Officer Kenneth Nelson, in violation of sections 782.04(1), 777.04(1), and 775.087, Florida Statutes (1983). The evidence established that, when the police attempted to pull over Rodriguez’s vehicle, he fled at high speed. During the chase, a passenger in Rodriguez’s car picked up a rifle and began shooting at the pursuing officers. Rodriguez and his codefendant were apprehended and charged by information as previously noted. Rodriguez was convicted of attempted first-degree murder. His sentence was enhanced on the grounds that he “used” the firearm in the commission of this offense. The issue in this proceeding is the enhancement of the sentence under section 775.087(1), which reads as follows:

  3. Below is the urgent questions certified to Florida’s Supreme Court by the dissenting judges.
    The dissenting judges mocked the majority’s reasoning.
    They called it “pure sophistry”.
    They noted that it diverged from all precedents in Florida.
    They noted they could find no other case in the country supporting the majority’s decision.

    “Finally, I would certify the following question to the Florida Supreme Court as a matter of great public importance, in order to resolve the apparent conflict between the majority’s interpretation of section 775.087(1) and the interpretation and application of that statute in the controlling authority of State v. Rodriguez, and related cases:

    “Does section 775.087(1) allow reclassification of a conviction where “during the commission of such a felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm” and that firearm or weapon is uncharged, and is unrelated to the commission of the crime and/or is spatially and temporally distant from the crime?”

    WHATEVER HAPPENED TO THAT CERTIFIED QUESTION? IS THE FLORIDA SUPREME COURT STILL CONSIDERING IT?

  4. Here’s the direct quote from the Appellate Court how it “rationalized” that “the act” of “murder” consists of all acts during the conspiracy: All acts “advising, discussing, assisting, and conspiring.” SO, the Appellate Court obliterates the distinction between Conspiracy and Murder. Read its exact words:

    “And the fourth, which is a unique act element, which applies to this and the criminal conspiracy as well, is that during the act the defendant, John Connolly, carried a firearm.
    Now what does that mean? It does not mean that John Connolly had to have a gun and shoot Callahan. It meant and it means that during the time John Connolly is advising, discussing, assisting and conspiring with Flemmi, Bulger and ultimately Martorano that he had a gun.
    And how do you know he had a gun? Because he’s an FBI agent, and all the witnesses told you that as an FBI agent he’s required to carry his gun.
    He carried his gun. He had his gun. Flemmi saw it when they met. And if you—when he’s meeting with his informants every agent says, you don’t meet with an informant without a gun.
    And he’s an FBI agent. And, you know, he was carrying his gun. He doesn’t have to have used his own gun, just had to have had it at the time he’s discussing it with them.”

    And I say this is irrational; it is irrational to obliterate the distinction between the acts which constitute conspiracy and the acts which constitute murder. I also emphasize that the Jury acquitted him of conspiring with Flemmi, Martorano and Bulger. So, the jury did not find that he conspired. So, as an FBI agent, while he was carrying his gun, and while he was meeting with them, he was not committing a crime. Who says so? The jury said so. Not guilty on Conspiracy.

  5. Yes, your analysis of the enhancement statute is correct. Not just an injustice, but an evil, as no rational person could assent to it.

    Consider, too, this simple rule of Statutory Construction. Where there is an ambiguity in a Statute, it should be interpreted in the light most favorable to the defendant. If there was any ambiguity about what “during the commission of the felony”meant, it should have been interpreted rationally in John Connolly’s favor, meaning during the actual murder of John Callahan. Not during the conspiracy that preceded the murder.

    On the issue of FACTS, here, too, is where the Appellate Court erred. We should not give any semblance of credence to the Appellate Court’s irrationality. The Appellate Court began its analysis with alleged “facts”, which occurred during the Conspiracy. For example, the Court repeated what Martorano and Flemmi testified what Whitey said or Connolly “suggested” in a meeting weeks before the murder. Those “facts” may be elements of a conspiracy. They are irrelevant, because the jury acquitted John Connolly of conspiracy. The jury did not find those facts.

    The jury is the fact-finder in a criminal trial with jury. It did not find John Connolly was involved in a Conspiracy. So any facts related to the Conspiracy should not have been considered.

    The jury made one erroneous finding that the Appellate Court should have corrected. A panel of the Appellate Court, in fact, did correct it. The jury found that John Connolly “carried a gun during the commission of the felony.” The Panel of the Appellate Court found that no evidence was presented that during the murder, the felony, Connolly carried a gun. Zero Evidence! In fact, the evidence showed Connolly was on vacation on Martha’s Vineyard. He may or may not have been carrying a gun on vacation, but the Panel correctly noted that was never proven. So the jury decision was reversed by the Panel.

    Moreover, as you’ve pointed out, even if someone had a picture of John Connolly carrying his gun at a Shooting Range on Martha’s Vineyard at the exact same time Martorano killed Callahan in Miami, it would be irrelevant, as Connolly’s gun had no relation to the murder.

    SUMMARY: So, the Appellate Court not only introduced “facts” not found by the jury, it not only stretched the Enhancement Statute beyond all recognition, it not only stretched the Murder by Gun statute beyond all recognition, it ignored the concrete rules of statutory construction, and it ignored Connolly’s acquittal on the Conspiracy charge.

    The enormity of this injustice, to anyone who studied the law, wreaks to heaven.

    When you further consider the Rodriquez case that said you cannot convict a man of murder by gun in Miami, when he was in Pensacola Florida at the time of the murder, you understand why I’ve thrown the towel in on the Judicial System.

    2. “During the commission of a felony” is a phrase in both the Enhancement and Murder by Gun Statutes, and the Appellate Court decided it was a phrase that stretched back to include all acts during the Conspiracy. In other words, the Court redefined what a murder is to include all acts associated with a murder. So, in Florida, there’s no difference between being the actual murderer or being an accessory before or after the fact. When Martorano left Florida and went to his brother Jim’s house in Boston for Thanksgiving Dinner some months later, (Jim was a gangster, also known to carry a gun) could JIm be tried for Murder by Gun in Florida?

    3. I wonder what happened to the dissenting justices question which it certified to Florida’s Supreme Court. I’ll post that below.

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