Possession of Firearm During Felony

A Separate Crime

This statute makes it a separate offense to possess a firearm during the commission certain crimes.  Most of these applications are not controversial.  For example, carjacking, kidnapping, attempted murder are included.  Few people would dispute that enhanced punishment is appropriate for such crimes because the possession of a firearm during these crimes ramps up the probability of death or serious bodily injury.

(Read the statute: TCA 39-17-1324)

Enhanced Punishment

The danger is that a citizen who is charged with felony possession of a small amount of drugs, for example, less than an ounce of marijuana, is then facing a mandatory minimum three years, day for day prison time without the possibility of probation.  The sentencing judge will have no discretion to soften the sentence.  If the defendant has a “prior felony“ conviction that mandatory minimum rises to five years of prison time without the possibility of probation.  (“Prior felony” includes a conviction for which the defendant received a sentence of probation.)

The practical effect of this is to give prosecutors a bludgeon to force a plea deal in otherwise weak cases. The criminal defense lawyer must handicap the chances of acquittal against the potential prison time and lay it out for the client.

In cases where a firearm is actually displayed or “employed” during a dangerous felony, the mandatory minimum goes up to six years and if the defendant has a prior felony conviction, ten years.