In order to be charged with the crime of Felony Firearm the accused must have been carrying or possessing a firearm when committing or attempting to commit a Felony.
Felony Firearm is a separate and additional felony charge compared to that of a Carrying a Concealed Weapon charge.
The Legislature’s intent in drafting the Felony Firearm statute was to provide for an additional felony charge and sentence whenever a person possessing a firearm committed a felony other than those four explicitly enumerated in the Felony Firearm statute.
The Felon Firearm statute reflects a clear legislative intent to impose multiple punishment for a single wrongful act.
A person has possession of a firearm for purposes of the Felony Firearm statute when the firearm is accessible and available at the time a felony is committed; actual possession of the firearm at the time of arrest is not required, and access to the weapon is not to be determined solely by reference to the arrest.
There is a mandatory consecutive sentence imposed by felony-firearm statute.
The Felony Firearm statute does not unconstitutionally infringe upon a person’s right to bear arms
Carrying a concealed weapon and possession of a firearm during the commission of a felony convictions may be obtained in the same trial growing out of the same criminal episode where the felony-firearm conviction is based on a felony distinct from the ccw charge.
- A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, is guilty of a felony and shall be punished by imprisonment for 2 years. Upon a second conviction under this subsection, the person shall be punished by imprisonment for 5 years. Upon a third or subsequent conviction under this subsection, the person shall be punished by imprisonment for 10 years.
- A person who carries or has in his or her possession a pneumatic gun and uses that pneumatic gun in furtherance of committing or attempting to commit a felony, is guilty of a felony and shall be punished by imprisonment for 2 years. Upon a second conviction under this subsection, the person shall be punished by imprisonment for 5 years. Upon a third or subsequent conviction under this subsection, the person shall be punished by imprisonment for 10 years.
- A term of imprisonment prescribed by this section is in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.
- A term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section is not eligible for parole or probation during the mandatory term imposed under subsection 1 or 2.
- Establishing that there is no proof of knowledge of the existence or the location of the firearm.
- Lack of proof that the firearm was accessible to the accused at the time of the crime.