Florida Statutes

Fla. Stat. § 790.07 (2025)

Persons engaged in criminal offense, having weapons.

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790.07 Persons engaged in criminal offense, having weapons.—

(1) Whoever, while committing or attempting to commit any felony or while under indictment, displays, uses, threatens, or attempts to use any weapon or electric weapon or device or carries a concealed weapon is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Whoever, while committing or attempting to commit any felony, displays, uses, threatens, or attempts to use any firearm or carries a concealed firearm is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, and s. 775.084.

(3) The following crimes are excluded from application of this section: Antitrust violations, unfair trade practices, restraints of trade, nonsupport of dependents, bigamy, or other similar offenses.

(4) Whoever, having previously been convicted of a violation of subsection (1) or subsection (2) and, subsequent to such conviction, displays, uses, threatens, or attempts to use any weapon, firearm, or electric weapon or device, carries a concealed weapon, or carries a concealed firearm while committing or attempting to commit any felony or while under indictment is guilty of a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Sentence shall not be suspended or deferred under the provisions of this subsection.

History.—s. 10, ch. 1637, 1868; RS 2423; s. 2, ch. 4124, 1893; GS 3269; RGS 5102; CGL 7204; s. 4, ch. 69-306; s. 741, ch. 71-136; s. 2, ch. 76-165; s. 2, ch. 91-223.

Notes of Decisions

Cited in 192 cases, 1973–2018 · leading case: O'BRIEN v. State, 454 So. 2d 675 (Fla. 5th DCA 1984).

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O'BRIEN v. State, 454 So. 2d 675 (Fla. 5th DCA 1984). · cites it 17× “087, Florida Statutes, which merely enhance the punishment for any (underlying) felony committed or attempted by use of a firearm, rather than by attempting to make the extra factual elements relating to the use of a firearm in commission of the (underlying) felony a separate…”

Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988). · cites it 20× “087, Florida Statutes; one count of use of a firearm during the commission of a felony, pursuant *1134 to Section 790.07(2), Florida Statutes; and one count of possession of a firearm by a convicted felon, pursuant to Section 790.”

Baker v. State, 425 So. 2d 36 (Fla. 5th DCA 1982). · cites it 12× “045(1)(b), but is such a favorite cause for enhancing punishment that it is often compounded by provisions within the statutory prohibition of the basic crime (see section 810.02(2) as to burglary, section 812.”

Castillo v. State, 590 So. 2d 458 (Fla. 3d DCA 1991). · cites it 13× “See § 790.07, Fla. Stat. (1989). The information also charged the defendant with trafficking in cocaine.”

Hall v. State, 517 So. 2d 678 (Fla. 1988). · cites it 6× “1984), may an offense proscribed by section 790.07(2), Florida Statutes, ever be considered a lesser included offense of the proscription of section 812.”

Cleveland v. State, 587 So. 2d 1145 (Fla. 1991). · cites it 4× “04, Florida Statutes (1989), and use of a firearm while committing a felony, section 790.07(2), Florida Statutes (1989).”

Torrence v. State, 440 So. 2d 392 (Fla. 5th DCA 1983). · cites it 5× “) and the firearm offense (§ 790.07(2), Fla. Stat.) each has one or more elements that the other does not have, neither is a true or necessarily lesser included offense of the other and the Blockburger [13] test for "difference" is passed.”

Hall v. State, 470 So. 2d 796 (Fla. 4th DCA 1985). · cites it 11× “) and possession of a firearm while engaged in a criminal offense (§ 790.07(2), Fla. Stat.). He contends that he was improperly convicted and sentenced for possession of a firearm where the elements of that offense are included within the elements of first-degree robbery.”

Burton v. State, 522 So. 2d 88 (Fla. 5th DCA 1988). · cites it 12× “); possession of a firearm in the commission of a felony (§ 790.07(2), Fla. Stat.); and shooting at, within, or into an occupied vehicle (§ 790.”

State v. Baker, 456 So. 2d 419 (Fla. 1984). · cites it 3× “04, Florida Statutes (1979), and with use of a firearm during the commission of a felony, section 790.07, Florida Statutes (1979). The statutory elements of first-degree premeditated murder are: (a) the unlawful (b) killing (c) of a human being (d) when perpetrated from a…”

Cardwell v. State, 525 So. 2d 1025 (Fla. 5th DCA 1988). · cites it 7× “" Neither is it clear from the language of the statute that the legislature intended to preclude multiple punishments. On its face, section 790.”

Delhall v. State, 95 So. 3d 134 (Fla. 2012). · cites it 2× “04, Florida Statutes (2001), unlawful discharge of the firearm resulting in death or serious bodily harm upon McCrae in violation of section 790.07(2), Florida Statutes (2001), and possession of a firearm by a convicted felon.”

Show all 192 citing cases →

— 790.07(1) — 13 cases

Cardwell v. State, 525 So. 2d 1025 (Fla. 5th DCA 1988). “" Neither is it clear from the language of the statute that the legislature intended to preclude multiple punishments. On its face, section 790.”

Vazquez v. State, 405 So. 2d 177 (Fla. 3d DCA 1981).

Stand. Jury Instructions-Crim. Cases, 603 So. 2d 1175 (Fla. 1992).

In Re Stan. Jury Instr. in Crim. Cases, 543 So. 2d 1205 (Fla. 1989).

O'BRIEN v. State, 454 So. 2d 675 (Fla. 5th DCA 1984). “087, Florida Statutes, which merely enhance the punishment for any (underlying) felony committed or attempted by use of a firearm, rather than by attempting to make the extra factual elements relating to the use of a firearm in commission of the (underlying) felony a separate…”

— 790.07(2) — 127 cases

Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988). “087, Florida Statutes; one count of use of a firearm during the commission of a felony, pursuant *1134 to Section 790.07(2), Florida Statutes; and one count of possession of a firearm by a convicted felon, pursuant to Section 790.”

Baker v. State, 425 So. 2d 36 (Fla. 5th DCA 1982). “045(1)(b), but is such a favorite cause for enhancing punishment that it is often compounded by provisions within the statutory prohibition of the basic crime (see section 810.02(2) as to burglary, section 812.”

Hall v. State, 517 So. 2d 678 (Fla. 1988). “1984), may an offense proscribed by section 790.07(2), Florida Statutes, ever be considered a lesser included offense of the proscription of section 812.”

Cleveland v. State, 587 So. 2d 1145 (Fla. 1991). “04, Florida Statutes (1989), and use of a firearm while committing a felony, section 790.07(2), Florida Statutes (1989).”

— 790.07(3) — 1 case

United States v. Charles Frederick Bower, 575 F.2d 499 (5th Cir. 1978).

— 790.07(4) — 1 case

In Re: Stand. Jury Instructions in Crim. Cases - Report 2017-04 (Fla. 2017).

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