Q: My son was sentenced to life for armed robbery with a firearm to wit a bb gun, and under applicable statutes , a bb gun
Is not a firearm under sec 790.01(6) fss 1993. At the sentencing hearing the court believed that it would be invading the province of the jury to find that the evidence did not meet the statutory definition of a firearm. In spite of the law, the court imposed a life sentence. Is this legal? My son has been locked up for 30 years, could this sentence stand as a matter of law?
A: You are correct that a BB gun is not a firearm and the charge would be wrong. Robbery with any deadly weapon is a PBL, that is punishable by life. You would have to go back into the record to find out if the information made an allegation of a deadly weapon. The maximum sentence for a simple weapon would have been 30 years. As important as these considerations would be, the sentencing guideline calculations from way back then could be more important. 30 years ago was a completely different sentencing scheme. There could be an error in the offense computation which could affect the recommended and permitted sentencing ranges. You need help on this from an experienced post conviction relief lawyer. There could be grounds for relief, or maybe not, depending on all the circumstances, including the criminal history and victim injury computations.
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