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Missing the target? // Shotgun law comes up short for minor offenders

Published Oct. 16, 2005

TAMPA - Richard Lee Smith, who had never been arrested before, almost went to prison for five years because of a borrowed gun that was one-eighth of an inch too short. A new Florida law carries a mandatory minimum five-year term for anyone convicted of possession of a short-barreled shotgun.

"You can't be that rigid," said Hillsborough Circuit Judge Robert Bonanno. "Before, this guy could get probation, and a really bad guy, you could give the maximum."

Ultimately, Smith was able to wriggle away with probation, but only because prosecutors agreed the law was too harsh for his case. Still, critics say his close call illustrates the danger of inflexible laws that would force judges to treat hardened criminals and ignorant first-time offenders the same.

Smith helps his wife run River Breeze Mobile Home Park east of Tampa. He says he borrowed the shotgun for protection from an unruly tenant whom they were trying to evict, a tenant who confronted Smith in Smith's home. Even the prosecutor agreed it was tough to distinguish the the defendant from the victim.

Smith was arrested Oct. 15, two weeks after the tougher law took effect. He says his friend had assured him the barrel measured the legal 18-inch minimum. Actually, it was one-eighth to one-sixteenth of an inch short.

"I find it frightening that just an inch, even a fraction of an inch, is the difference between a man who's never been in trouble before having to go to prison," said Assistant Public Defender Carolle Hooper. "It's scary."

Hillsborough Assistant State Attorney Lee Atkinson says what's really scary are people who use shotguns to settle disputes. "There's only one purpose in the world to have a sawed-off shotgun, and that's to kill people or to threaten to kill people," he said.

"That's why mere possession of one is against state and federal law."

Besides, he says, prosecutors have the discretion to drop a case to avoid an injustice, precisely what was done in Smith's case.

"I think it's unfair," Smith said when he was still facing prison. "I should be the victim. I'm not a guilty person. The only thing I did wrong was wanting him to leave me alone and get out of my house. I had no idea the gun was illegal."

Protect or grandstand?

Calling short-barreled guns the drug dealers' "weapon of choice," a bill to toughen penalties for their possession flew through the Legislature last year. Five no votes were cast in the House; the Senate passed it unanimously.

Ignorance is no excuse, said the bill's sponsor, state Rep. Mario Diaz-Balart, R-Miami.

"The bottom line is, are we going to be serious about those who knowingly or unknowingly break the law," he said. "I think it's about time we start getting criminals before they actually kill somebody."

Carol Hanson, a Republican from Boca Raton who cast one of the five no votes, said she supports a waiting period for handguns but this legislation smelled political.

"I felt there was some grandstanding being done," Hanson said. "Legislators trying to look good at home by saying we're trying to protect you from the drug dealers."

She thought the existing statute, which didn't carry a mandatory minimum, was strong enough, especially with today's premium on prison space. "You have to look at the fiscal impact," Hanson said. "Everybody wants to do a minimum mandatory bill. Those are becoming buzzwords."

Until the new law was passed, about 90 percent of people convicted got probation. Defense attorneys say that suggests the guns aren't the "weapon of choice of drug dealers." Hardened criminals would have gotten more than probation.

Alan Fanter, a supervising public defender in Citrus and Hernando counties, said he can't remember one case in eight years where a short-barreled shotgun was used to commit a crime. The last one he remembers involved a man and wife fighting in their driveway.

"She tells the police, 'He's got a gun in his truck.' They look and, lo and behold, there it is, and it doesn't measure up."

Prosecutors read a different story in the same numbers. Atkinson thinks probation has been so common because those caught were headed off before they could commit more serious crimes. The tougher statute is designed to make sure they don't benefit from that.

"What would you think of a man stopped with a loaded sawed-off shotgun under his seat driving around your neighborhood?" Atkinson said. "I think he's carrying it because he wants to hold up your local 7-Eleven or kidnap one of your children."

Smith's close call

Smith, a 29-year-old truck driver for Florida Mining and Materials, pleaded guilty Monday under an agreement for probation.

Hillsborough Assistant State Attorney Shirley Williams said she offered probation because of several factors: The victim initially didn't want to prosecute; Smith had no prior record; the confrontation occurred in Smith's home; and the weapon was only one-sixteenth of an inch too short.

"The neighbors placed most of the blame on the victim," she said. "It was such a close call, it was hard to tell who was the victim, who was the aggressor."

Neither side told the judge their plea agreement ignored the mandatory minimum requirement. When Atkinson, William's superior, found out about the agreement Tuesday, he said it was illegal and would have to be corrected.

After reviewing the facts, Atkinson agreed that Smith's is one of those cases that merits a softened approach. Now the state will drop the shotgun charge. Smith will plead guilty, as he had Monday, to an accompanying aggravated battery charge. He will receive probation.

Diaz-Balart said he sympathizes with people such as Smith, but he compared the toughened statute with one that makes an adult criminally responsible if a child shoots someone with an unsecured weapon. The goal is to force people to pay attention.

"Now you've got to know that if you've got an illegal short-barreled gun," he said, "you're going to pay for it."