The 2023 Florida Statutes (including Special Session C)

Title XLVI
CRIMES

Chapter 790
WEAPONS AND FIREARMS

View Entire Chapter

F.S. 790.161

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.

F.S. 790.161 on Google Scholar

F.S. 790.161 on Casetext

Amendments to 790.161

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-USING - PROJECT ETC ATT DESTRUCT DVC WIT BODILY HARM - F: S

S790.161 2 - EXPLOSIVES-POSSESSING - MAKE OR ATT DESTRUCT DVC WIT CAUSE 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

Annotations, Discussions, Cases:

Cases from cite.case.law:

IN RE STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT, 259 So. 3d 754 (Fla. 2018)

. . . POSSESSING, THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING A DESTRUCTIVE DEVICE RESULTING IN DEATH § 790.161 . . . Included Offenses POSSESSING, THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING DESTRUCTIVE DEVICE - 790.161 . . . Possessing, throwing, 790.161( 1 3) 10.7( a c) making, placing, projecting, or discharging destructive . . . device resulting in bodily harm Possessing, throwing, 790.161( 3 1) 10.7( c a) making, placing, projecting . . . , or discharging destructive device Possessing, throwing, 790.161(2) 10.7(b) making, placing, projecting . . .

ATWELL, v. STATE, 197 So. 3d 1040 (Fla. 2016)

. . . life imprisonment and: (a) If convicted of murder in the first degree or of a capital felony under s. 790.161 . . .

SCHOONOVER, v. STATE, 176 So. 3d 994 (Fla. Dist. Ct. App. 2015)

. . . the elements of the separate charge of possessing and discharging a destructive device under section 790.161 . . . follows: COUNT I MAKE/POSSES/THROW/PROJ/PLACE/DIS-CHARGE DESTRUCTIVE DEVICE-POSSESSION AND DISCHARGE (FI) 790.161 . . . discharged a “destructive device” as that term is defined in s. 790.001, in violation of Florida Statute 790.161 . . .

GROSS, v. STATE, 138 So. 3d 590 (Fla. Dist. Ct. App. 2014)

. . . . § 790.161(2), Fla. Stat. (2009). . . . .

INSKO, v. STATE, 969 So. 2d 992 (Fla. 2007)

. . . . § 790.161(1). . . .

A. ROBINSON, v. STATE, 955 So. 2d 1230 (Fla. Dist. Ct. App. 2007)

. . . convicted of any capital felony other than murder in the first degree or a capital felony under section 790.161 . . . Capital sexual battery is not a capital felony under section 790.161. . . . .

NEGRON, v. STATE, 932 So. 2d 1250 (Fla. Dist. Ct. App. 2006)

. . . life imprisonment and: (a) If convicted of murder in the first degree or of a capital felony under s. 790.161 . . .

WALLACE, v. STATE, 860 So. 2d 494 (Fla. Dist. Ct. App. 2003)

. . . Appellant was charged with and convicted of a violation of section 790.161, Florida Statutes (1999), . . . destructive device” is guilty of a second degree felony when there is an intent to damage property. § 790.161 . . . See § 790.161. . . . For the foregoing reasons, we affirm appellant’s convictions but reverse his sentence under section 790.161 . . .

STATE v. FRATELLO, 835 So. 2d 312 (Fla. Dist. Ct. App. 2002)

. . . in stolen property, prostitution, criminal usury, bribery, or extortion; any felony violation of ss. 790.161 . . .

H. PROVENZANO, v. W. MOORE,, 744 So. 2d 413 (Fla. 1999)

. . . or s. 9, Art X of the State Constitution. (6) Notwithstanding s. 775.082(2), s. 775.15(l)(a), or s. 790.161 . . .

P. W. G. a v. STATE, 702 So. 2d 488 (Fla. 1997)

. . . . § 790.161(1), Fla. Stat. (1995) (third-degree felony if committed by an adult). . . .

BRITT, v. STATE, 687 So. 2d 930 (Fla. Dist. Ct. App. 1997)

. . . . § 790.161, Fla. Stat. (1995). . . .

In STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES, 678 So. 2d 1224 (Fla. 1996)

. . . life imprisonment and: (a) If convicted of murder in the first degree or of a capital felony under s. 790.161 . . .

STATE v. MITCHELL,, 652 So. 2d 473 (Fla. Dist. Ct. App. 1995)

. . . trial court’s order dismissing the charges of discharging a destructive device in violation of section 790.161 . . . constitutional complaint to be resolved centers on three assertions regarding Sections 790.001(4) and (5), 790.161 . . .

DOWNS, v. STATE, 616 So. 2d 444 (Fla. 1993)

. . . using a destructive device onto the ten-year minimum mandatory sentence provided for in subsection 790.161 . . .

STANDARD JURY INSTRUCTIONS- CRIMINAL CASES NO., 603 So. 2d 1175 (Fla. 1992)

. . . [Page A-37] THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING DESTRUCTIVE DEVICE (New) F.S. 790.161 . . . [Page A-38] THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING DESTRUCTIVE DEVICE (New) F.S. 790.161 . . . proposed instruction: This is based on the instruction on page 103 of the manual and on amendments to F.S. 790.161 . . . [Page A-39] THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING DESTRUCTIVE DEVICE (New) F.S. 790.161 . . . [Page A-40] THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING DESTRUCTIVE DEVICE (New) F.S. 790.161 . . .

FRASER, v. STATE, 600 So. 2d 1306 (Fla. Dist. Ct. App. 1992)

. . . of the offense of possessing a destructive device resulting in bodily injury as defined in section 790.161 . . .

GRANGER, v. STATE, 575 So. 2d 329 (Fla. Dist. Ct. App. 1991)

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

STATE v. McKENZIE,, 574 So. 2d 1176 (Fla. Dist. Ct. App. 1991)

. . . Less clear wording is found in section 790.161, Florida Statutes (Supp.1990), amended by Ch. 90-124, . . . Presumably (and paradoxically) gain time could shorten a sentence under section 790.161, but the inmate . . .

In STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES, 543 So. 2d 1205 (Fla. 1989)

. . . Section 790.161, Florida Statutes, was amended by Chapter 88-381, § 44, Laws of Florida. . . . OR DISCHARGING DESTRUCTIVE DEVICE F.S. 790.161 Before you can find the defendant guilty of (crime charged . . .

McGOUIRK, v. STATE, 493 So. 2d 1016 (Fla. 1986)

. . . murder, two of attempted manslaughter, and one of placing a destructive device in violation of section 790.161 . . . placing the destructive device, including a ten-year mandatory minimum imposed therefor under section 790.161 . . . Section 790.161 criminalizes the placing or discharging of any destructive device “with intent to do . . .

STATE OF FLORIDA v. BENSON, 19 Fla. Supp. 2d 103 (Fla. Cir. Ct. 1985)

. . . Benson, in violation of Florida Statute 790.161. . . . act resulting in the death of another person to-wit: Scott Benson, in violation of Florida Stataute 790.161 . . .

STATE v. RHODEN,, 448 So. 2d 1013 (Fla. 1984)

. . . an adult, however, and was convicted and sentenced to a mandatory ten-year term pursuant to section 790.161 . . .

STATE v. WALL,, 445 So. 2d 646 (Fla. Dist. Ct. App. 1984)

. . . information charging the defendant with unlawful discharge of a destructive device in violation of section 790.161 . . .

HOGAN, v. STATE, 427 So. 2d 202 (Fla. Dist. Ct. App. 1983)

. . . 33 L.Ed.2d 346 (1972), the only capital crimes in Florida were first degree murder (see also Section 790.161 . . .

RHODEN, v. STATE, 421 So. 2d 780 (Fla. Dist. Ct. App. 1982)

. . . The court sentenced him to a mandatory term of imprisonment of ten years pursuant to section 790.161( . . .

STATE v. HOAG, 419 So. 2d 416 (Fla. Dist. Ct. App. 1982)

. . . count charges the defendants with unlawful discharge of a destructive device in violation of Section 790.161 . . . Considering Section 790.161(3) in its general context it is obvious that the legislative purpose is not . . . Chapter 790, Florida Statutes provides in Section 790.161: Any Person who makes, possesses, throws, places . . .

REID, v. STATE, 405 So. 2d 500 (Fla. Dist. Ct. App. 1981)

. . . Section 790.161 provides that it is unlawful for any person to throw, place or discharge a destructive . . . same language, was obviously intended to cover a threat to carry out the conduct proscribed by section 790.161 . . .

HERNANDEZ, v. STATE ROSENBLATT, v. STATE CLAY, v. STATE, 397 So. 2d 715 (Fla. Dist. Ct. App. 1981)

. . . Count 32: unlawfully discharging destructive device in violation of Section 790.161(2), Fla.Stat., punishable . . .

JACOBSON, v. STATE, 375 So. 2d 1133 (Fla. Dist. Ct. App. 1979)

. . . on the single count of throwing, placing or discharging a destructive device in violation of Section 790.161 . . .

STATE v. BOUTWELL,, 367 So. 2d 231 (Fla. Dist. Ct. App. 1979)

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

DE LA COVA, v. STATE, 355 So. 2d 1227 (Fla. Dist. Ct. App. 1978)

. . . at 3458 Southwest 8 Street, with intent to do damage to said property, in violation of 77[7].04 and 790.161 . . . because it improperly charged the defendant with an attempt to commit the crime described in Section 790.161 . . . It is argued that Section 790.161 is an attempt statute and that, therefore, the charge of an attempt . . . This argument is not effective because the language of Section 790.161, in referring to attempts, speaks . . . discharge, or attempt to discharge a destructive device . ” in contravention of Sections 777.04 and 790.161 . . .

LLANO, v. STATE, 356 So. 2d 1260 (Fla. Dist. Ct. App. 1978)

. . . discharging a bomb with intent to do damage to the property of Air Canada, in violation of Florida Statute 790.161 . . .

STATE v. DIXON STATE v. D. SETSER, STATE v. HUNTER STATE v. L. SHEPPARD,, 283 So. 2d 1 (Fla. 1973)

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

GRIZZARD, v. STATE, 139 So. 2d 161 (Fla. Dist. Ct. App. 1962)

. . . The first two sections of Ch. 59-29, supra, which appear as Secs. 790.161 and 790.162, Fla.Stat. 1959 . . .