Florida Statute 790.161 - Full Text and Legal Analysis

The 2025 Florida Statutes

Title XLVI
CRIMES

Chapter 790
WEAPONS AND FIREARMS

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790.161 Making, possessing, throwing, projecting, placing, or discharging any destructive device or attempt so to do, felony; penalties.—A person who willfully and unlawfully makes, possesses, throws, projects, places, discharges, or attempts to make, possess, throw, project, place, or discharge any destructive device:

(1) Commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.084.

(2) If the act is perpetrated with the intent to do bodily harm to any person, or with the intent to do property damage, or if the act results in a disruption of governmental operations, commerce, or the private affairs of another person, commits a felony of the second degree, punishable as provided in s. 775.082 or s. 775.084.

(3) If the act results in bodily harm to another person or in property damage, commits a felony of the first degree, punishable as provided in s. 775.082 or s. 775.084.

(4) If the act results in the death of another person, commits a capital felony, punishable as provided in s. 775.082. In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death for a capital felony shall cause such person to be brought before the court, and the court shall sentence such person to life imprisonment if convicted of murder in the first degree or of a capital felony under this subsection, and such person shall be ineligible for parole. No sentence of death shall be reduced as a result of a determination that a method of execution is held to be unconstitutional under the State Constitution or the Constitution of the United States.

History.—s. 1, ch. 59-29; s. 6, ch. 69-306; s. 1, ch. 70-85; s. 747, ch. 71-136; s. 6, ch. 72-724; s. 2, ch. 76-38; s. 44, ch. 88-381; s. 3, ch. 90-124; s. 3, ch. 90-176; s. 19, ch. 93-406; s. 2, ch. 94-228; s. 3, ch. 98-3.

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Amendments to 790.161

Annotations, Discussions, Cases:

Arrestable Offenses / Crimes under Fla. Stat. 790.161

Level: Degree
Misdemeanor/Felony: First/Second/Third

S790.161 1 - EXPLOSIVES-USING - THROW PROJECT ETC ATTEMPT DESTRUCTIVE DEVICE - F: T

S790.161 1 - EXPLOSIVES-POSSESSING - MAKE OR ATTEMPT TO MAKE DESTRUCTIVE DEVICE - F: T

S790.161 2 - EXPLOSIVES-POSSESSING - MAKE OR ATT DESTRUCT DVC WIT CAUSE BODILY HARM - F: S

S790.161 2 - EXPLOSIVES-USING - PROJECT ETC ATT DESTRUCT DVC WIT BODILY HARM - F: S

S790.161 3 - EXPLOSIVES-USING - THROW ETC DESTRUCT DVC BODILY HARM PROP DMG - F: F

S790.161 3 - EXPLOSIVES-POSSESSING - MAKE ATT DESTRUCTIVE DVC WIT HARM OR DMG PROP - F: F

S790.161 4 - EXPLOSIVES-USING - THROW ETC ATT DESTRUCT DEVICE RESULT IN DEATH - F: C

S790.161 4 - EXPLOSIVES-POSSESSING - MAKE ATTEMPT DESTRUCTIVE DVC RESULT IN DEATH - F: C

Cases Citing Statute 790.161

Total Results: 28

State v. Dixon

283 So. 2d 1

Supreme Court of Florida | Filed: Jul 26, 1973 | Docket: 401064

Cited 576 times | Published

A.; homicide caused by a destructive device, § 790.161(1), F.S. 1971 F.S.A.; rape of a female of the

State v. Rhoden

448 So. 2d 1013

Supreme Court of Florida | Filed: Apr 5, 1984 | Docket: 1523115

Cited 114 times | Published

sentenced to a mandatory ten-year term pursuant to section 790.161(3), Florida Statutes (1981). At sentencing

In Re Stan. Jury Instr. in Criminal Cases

543 So. 2d 1205, 1989 WL 34342

Supreme Court of Florida | Filed: Mar 30, 1989 | Docket: 1729777

Cited 112 times | Published

governmental commerce.] Although the wording of the Section 790.161, Florida Statutes, may be ambiguous, the committee

Standard Jury Instructions-Criminal Cases

603 So. 2d 1175, 17 Fla. L. Weekly Supp. 400, 1992 Fla. LEXIS 1220, 1992 WL 148230

Supreme Court of Florida | Filed: Jul 2, 1992 | Docket: 1475854

Cited 75 times | Published

DISCHARGING DESTRUCTIVE DEVICE (New) F.S. 790.161(1) Before you can find the defendant

Insko v. State

969 So. 2d 992, 2007 WL 2727127

Supreme Court of Florida | Filed: Sep 20, 2007 | Docket: 1404133

Cited 14 times | Published

806.101, or "commits a felony," see, e.g., id. § 790.161(1). Standing alone, the definition "merely describe[s]

PWG v. State

702 So. 2d 488, 1997 WL 758803

Supreme Court of Florida | Filed: Dec 11, 1997 | Docket: 460354

Cited 14 times | Published

ANSTEAD, J., concurs in result only. NOTES [1] § 790.161(1), Fla. Stat. (1995) (third-degree felony if

McGouirk v. State

493 So. 2d 1016, 11 Fla. L. Weekly 463

Supreme Court of Florida | Filed: Sep 4, 1986 | Docket: 1671680

Cited 14 times | Published

placing a destructive device in violation of section 790.161, Florida Statutes (1983). The trial court sentenced

Hogan v. State

427 So. 2d 202

District Court of Appeal of Florida | Filed: Jan 12, 1983 | Docket: 1151685

Cited 6 times | Published

Florida were first degree murder (see also Section 790.161, Florida Statutes (1971)) and rape (sexual

Jacobson v. State

375 So. 2d 1133

District Court of Appeal of Florida | Filed: Oct 9, 1979 | Docket: 1705391

Cited 6 times | Published

discharging a destructive device in violation of Section 790.161, Florida Statutes (1975). The testimony which

De La Cova v. State

355 So. 2d 1227

District Court of Appeal of Florida | Filed: Feb 28, 1978 | Docket: 1360429

Cited 6 times | Published

described in Section 790.161, Florida Statutes (1975). It is argued that Section 790.161[2] is an attempt

Rhoden v. State

421 So. 2d 780

District Court of Appeal of Florida | Filed: Nov 10, 1982 | Docket: 1719268

Cited 5 times | Published

term of imprisonment of ten years pursuant to section 790.161(3), Florida Statutes (1981). This appeal ensued

Reid v. State

405 So. 2d 500

District Court of Appeal of Florida | Filed: Nov 6, 1981 | Docket: 1348784

Cited 5 times | Published

cert. denied, 333 So.2d 465 (Fla. 1976). Section 790.161 provides that it is unlawful for any person

Hernandez v. State

397 So. 2d 715

District Court of Appeal of Florida | Filed: Apr 7, 1981 | Docket: 1356983

Cited 3 times | Published

discharging destructive device in violation of Section 790.161(2), Fla. Stat., punishable up to thirty years'

Wallace v. State

860 So. 2d 494, 2003 WL 22715824

District Court of Appeal of Florida | Filed: Nov 19, 2003 | Docket: 454672

Cited 2 times | Published

charged with and convicted of a violation of section 790.161, Florida Statutes (1999), which provides that

State v. Mitchell

652 So. 2d 473, 1995 WL 123620

District Court of Appeal of Florida | Filed: Mar 24, 1995 | Docket: 431004

Cited 2 times | Published

discharging a destructive device in violation of section 790.161, Florida Statutes (1991), and declaring unconstitutional

Gross v. State

138 So. 3d 590, 2014 WL 1839108, 2014 Fla. App. LEXIS 6895

District Court of Appeal of Florida | Filed: May 9, 2014 | Docket: 60240740

Cited 1 times | Published

and REMANDED. COHEN and WALLIS, JJ„ concur. . § 790.161(2), Fla. Stat. (2009). . Fortunately, the subsequent

State v. McKenzie

574 So. 2d 1176, 1991 WL 15557

District Court of Appeal of Florida | Filed: Feb 7, 1991 | Docket: 1729800

Cited 1 times | Published

precluded. Less clear wording is found in section 790.161, Florida Statutes (Supp. 1990), amended by

In Re: Standard Jury Instructions in Criminal Cases - Report 2019-04

Supreme Court of Florida | Filed: Dec 19, 2019 | Docket: 16761657

Published

amended to include “possessing” to track section 790.161, Florida Statutes (2018), and the concept

In Re: Standard Jury Instructions in Criminal Cases-Report 2018-08.

259 So. 3d 754

Supreme Court of Florida | Filed: Dec 13, 2018 | Docket: 8402543

Published

DESTRUCTIVE DEVICE RESULTING IN DEATH § 790.161(4), Fla._Stat. In the absence of an express

Schoonover v. State

176 So. 3d 994, 2015 Fla. App. LEXIS 12528, 2015 WL 4945022

District Court of Appeal of Florida | Filed: Aug 21, 2015 | Docket: 60251047

Published

and discharging a destructive device under section 790.161(3), Florida Statutes (2013). No other issue

Robinson v. State

955 So. 2d 1230, 2007 Fla. App. LEXIS 7154, 2007 WL 1372947

District Court of Appeal of Florida | Filed: May 11, 2007 | Docket: 64850577

Published

the first degree or a capital felony under section 790.161, Florida Statutes, was required to be sentenced

P.W.G. v. State

702 So. 2d 488, 22 Fla. L. Weekly Supp. 753, 1997 Fla. LEXIS 2097

Supreme Court of Florida | Filed: Dec 11, 1997 | Docket: 64777265

Published

concur. ANSTEAD, J., concurs in result only. . § 790.161(1), Fla. Stat. (1995) (third-degree felony if

Britt v. State

687 So. 2d 930, 1997 WL 47636

District Court of Appeal of Florida | Filed: Feb 7, 1997 | Docket: 595737

Published

(1995). [3] § 790.164, Fla. Stat. (1995). [4] § 790.161, Fla. Stat. (1995).

Fraser v. State

600 So. 2d 1306, 1992 Fla. App. LEXIS 6749, 1992 WL 143603

District Court of Appeal of Florida | Filed: Jun 26, 1992 | Docket: 64668563

Published

device resulting in bodily injury as defined in section 790.161, Florida Statutes, and that under the allegations

Granger v. State

575 So. 2d 329, 1991 Fla. App. LEXIS 1872, 1991 WL 29483

District Court of Appeal of Florida | Filed: Mar 6, 1991 | Docket: 64656635

Published

2, discharge of a destructive device under section 790.161(3), Florida Statutes (1985), should be indicated

State v. Hoag

419 So. 2d 416, 1982 Fla. App. LEXIS 21176

District Court of Appeal of Florida | Filed: Sep 21, 1982 | Docket: 64592091

Published

in violation of Section 790.161(3), Florida Statutes (1979). Considering Section 790.161(3) in its general

State v. Boutwell

367 So. 2d 231, 1979 Fla. App. LEXIS 13956

District Court of Appeal of Florida | Filed: Jan 11, 1979 | Docket: 64568417

Published

The defendant was charged with violating Section 790.161(3), Florida Statutes, relating to unlawful

Llano v. State

356 So. 2d 1260, 1978 Fla. App. LEXIS 15596

District Court of Appeal of Florida | Filed: Feb 28, 1978 | Docket: 64563713

Published

property of Air Canada, in violation of Florida Statute 790.161. Appellant was tried in the Circuit Court

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