TO:

All Assistant State Attorneys

FROM:

Melissa W. Nelson

RE:

Directive related to the prosecution of violations of § 790.23 and § 790.01, Fla. Stat.

DATE:

August 31, 2020

Reducing gun violence through the enforcement of state firearms laws is among the highest
priorities of the State Attorney’s Office. In the last few years, we have implemented several
strategies to reduce violent gun crime; nonetheless, gun violence continues to plague our circuit
and, specifically, Duval County.

Gun violence is not a novel challenge for our community.

Indeed, it has persisted as a significant problem for decades in Jacksonville, and has put the city on
the map nationally. Gun violence destroys neighborhoods and traumatizes the people hear it, see
it, and lose loved ones to it.
In 2017, the Jacksonville Sheriff’s Office implemented the ShotSpotter® gunfire detection
technology, which allows us to hear these shootings almost instantaneously. ShotSpotter alerts are
currently at record numbers. You can listen to a ShotSpotter audio capture of a gunfight in our
city by clicking the link below.

Jackonville, Florida,
ShotSpotter .wmv

Jacksonville, Florida ShotSpotter
Since COVID-19 began, shootings and homicides have escalated. As of today, there have been 79
gun related homicides in Jacksonville this year, and as of early August there have been over 300
non-domestic shootings where a bullet struck flesh. In April, a small child in the back seat of her
grandfather’s car was caught in gunfire and killed. Two of the shooters were convicted felons and
prohibited from having guns. In a single week in July, there were six homicides in just seven days
-- three of which were executions in broad daylight.

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 Obviously, prosecution is different from policing. Unlike the police, we do not deploy to “hot spots”
in an effort to deter crime, and our mere presence does nothing to prevent crime. That said, our
office collectively, and each of us individually, can contribute to violent crime reduction efforts –
specifically by identifying and incapacitating those defendants who commit crimes involving guns
and pose the highest threat to public safety.
We have already employed myriad prosecutorial strategies to advance the goal of violent crime
reduction, but we seek to do more. We have analyzed how the office has been handling the offenses
of Possession of a Firearm by a Convicted Felon, Possession of a Firearm by a Previously
Adjudicated Delinquent, Unlicensed Carrying of a Concealed Firearm, and Auto Burglary. 1 Time
and again, we have seen how the illegal possession of firearms leads to the use of those firearms in
violent crime. This analysis has also afforded us an introspective look as to how these offenses are
currently being handled in criminal court.
This memorandum outlines additional directives related to the prosecution of violations of § 790.01
and § 790.23, Fla. Stat. and provides the tools referenced in the recent office-wide trainings on these
issues. These directives and tools are focused on felons prohibited from carrying firearms and those
unlicensed carriers who pose a threat to public safety.

CHARGING FIREARMS OFFENSES
Charging Threshold
All of our charging decisions must continue to be made according to the ethical standard with
which we are charged: that there exists a reasonable probability of conviction. This policy directive
does not diminish this ethical standard of charging.

Prosecutorial Discretion
In those cases where the merits support a reasonable probability of conviction, we shall file the
highest charge supported by the evidence. The Charging Policy published in 2017 remains in
effect. Consistent with legislative intent, prosecutors in this office shall charge the most serious,
readily provable § 757.087, Fla. Stat., enhancements when making filing decisions, unless
permission to act otherwise is obtained. (10-20-Life Enhancements Policies and Procedures).

Utilization of Firearm Prosecutions Checklist
In early 2019, we created a Firearm Prosecutions Checklist. This checklist ensures we have availed
ourselves of every investigative opportunity in order to make the best possible case. In those cases
where we are not able to pursue prosecution, this checklist also memorializes the investigative
steps taken before declining prosecution.

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In 2019, there were 635 cases reported of firearms stolen from cars in Duval County, per JSO data.
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 As an additional backstop in those decisions to forgo prosecution, an investigator with relevant
experience reviews the Firearms Prosecution Checklist to ensure all investigative opportunities
that may exist have been exhausted.

SENTENCING
Prohibited Persons & Unlicensed Carrying a Concealed Firearm
For the offenses of Possession of a Firearm by a Convicted Felon or Possession of a Firearm by a
Person previously Adjudicated Delinquent or Unlicensed Carrying a Concealed Firearm, we have
created additional tools to assist you in conveying State offers for resolution of these matters.
These tools seek to identify those aggravating and mitigating circumstances that should be
considered in sentencing. It is expected that these tools will be used in any matter involving
violations of § 790.23 and § 790.01, Fla. Stat.
These tools can be found in STAC under Circuit Docs Word. Once utilized, a copy of the relevant
checklist should be maintained in the State Attorney file.
Links to these tools can be found here:
 PFCF Risk-based Categorization of Prohibited Persons and Associated State Offers Ranges
 Aggravators and Mitigators Checklist for Unlicensed Carrying of a Concealed Firearm

Minimum Mandatories
All waivers of § 775.087, Fla. Stat., (10-20-Life) enhancements must have prior authorization by the
SAO director supervising the prosecution. If a waiver is granted, a memorandum is required,
detailing the reasons for the waiver. Each director will maintain a record of all waivers and attach
to their division’s monthly report to the State Attorney. (See 10-20-Life Enhancements Policies and
Procedures).

DIVERSION FOR APPROPRIATE CANDIDATES
Defendants charged with Unlicensed Carrying of a Concealed Firearm often fall into two distinct
categories: dangerous, unpredictable individuals who pose a public safety threat, or irresponsible,
negligent, and/or uninformed individuals. For those identified as members of the latter category,
a diversion program is an ideal alternative to incarceration to address the conduct and educate the
defendant. To this end, we have launched a Diversion Program focused on responsible gun
ownership. Defendants who successfully complete the program will be eligible to have their case
dismissed. Prosecutors are encouraged to refer all eligible and appropriate defendants to this
program. When determining appropriate referrals, the Aggravators and Mitigators Checklist for
Unlicensed Carrying of a Concealed Firearm should be reviewed.

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 This policy does not strip you of your discretion, but seeks to (1) ensure uniformity and
consistency in our office’s prosecution of these cases, and (2) provide sure and certain punishment
for offenses that meet certain criteria. The checklists are intended to provide you direction in
identifying and accounting for those circumstances in firearms cases that are indicia of heightened
risk. Unlike policies in past years that mandated standard state offers for certain offenses –
without regard to aggravation (or mitigation) – this policy does the opposite. The tools are
focused on behaviors and conditions that are dangerous and pose threats to our collective public
safety.
We hope you will find these checklists and guidance helpful. We will continue to audit their use,
application, and effectiveness. Thank you in advance for your cooperation.

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