DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part of the
legislative instrument. The keyword, one-liner, abstract, and digest do not constitute part of the law
or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HB 376 Engrossed 2019 Regular Session Huval
Abstract: Provides that the determination of whether a person discharged, used, or actually
possessed a firearm during the commission of certain enumerated offenses is a specific
finding of fact to be submitted to the jury, and provides relative to the penalties imposed in
such cases.
Present law (C.Cr.P. Art. 817) provides that any qualification of or addition to a verdict of guilty,
beyond a specification of the offense as to which the verdict is found, is without effect upon the
finding.
Proposed law provides that, notwithstanding present law, any fact that increases the maximum or
mandatory minimum penalty for a crime, other than the fact of a prior conviction, may be submitted
to the jury, and the verdict may include a specific finding of fact as to that issue.
Present law (C.Cr.P. Art. 893.1 et seq.) provides for the imposition of certain sentences when a
firearm was discharged, used, or actually possessed during the commission of the certain offenses
set forth in present law. In this regard, present law provides for the following:
(1)Authorizes the district attorney to file a motion for the imposition of such sentence within
a reasonable period of time prior to the commencement of trial.
(2)Authorizes the court to conduct a contradictory hearing following conviction to determine
whether a firearm was discharged, used, or actually possessed during the commission of the
specific offenses enumerated in present law. However, present law also provides that if at
any time during or at the completion of the trial, the court finds by clear and convincing
evidence that the state has established that a firearm was discharged, used, or actually
possessed during the commission of the offense the court may dispense with the hearing.
(3)Authorizes the court to consider any evidence introduced at the trial on the merits, at
defendant's guilty plea, or at the hearing of any motion filed in the case, and any other
relevant evidence presented by either party at the contradictory hearing.
(4)Provides that the burden shall be upon the state to establish by clear and convincing evidence
that the defendant actually discharged, used, or actually possessed a firearm during the
commission of the offense.
(5)If the court finds by clear and convincing evidence that the offender discharged, used, or actually possessed a firearm during the commission of the offense, the following penalties
shall apply:
(a)For actual possession of the firearm: the court shall impose a term of imprisonment
of two years; however, if the maximum sentence for the underlying offense is less
than two years, the court shall impose the maximum sentence.
(b)For actual use of the firearm: the court shall impose a term of imprisonment of five
years; however, if the maximum sentence for the underlying offense is less than five
years, the court shall impose the maximum sentence.
(c)For actual discharge of the firearm: the court shall impose a term of imprisonment
of ten years; however, if the maximum sentence for the underlying offense is less
than ten years, the court shall impose the maximum sentence.
(d)For actual use or discharge that results in bodily injury: the court shall impose a term
of imprisonment of fifteen years; however, if the maximum sentence for the
underlying felony is less than fifteen years, the court shall impose the maximum
sentence.
(e)For commission of a violent felony with a firearm, the court shall impose a minimum
term of imprisonment of ten years; and for the discharge of a firearm during the
commission of a violent felony, the court shall impose a minimum term of
imprisonment of twenty years. In this regard, present law defines "violent felony" as
second degree sexual battery, aggravated burglary, carjacking, armed robbery, second
degree kidnapping, manslaughter, or forcible or second degree rape.
Proposed law amends present law to provide that the determination as to whether a firearm was
discharged, used, or actually possessed during the commission of one of the specifically enumerated
offenses in present law is a specific finding of fact to be submitted to the jury and proven by the state
beyond a reasonable doubt.
As such, proposed law repeals the present law provisions which authorize the court to conduct a
contradictory hearing, provide for the type of evidence the court may consider, and provide that the
burden of proof is by clear and convincing evidence.
With regard to the penalties imposed, proposed law provides that the term of imprisonment provided
in present law is a minimum and that the court shall impose a term of imprisonment not less than
the minimum amount set forth in present law and not more than the term of imprisonment imposed
for the underlying offense.
Effective upon signature of governor or lapse of time for gubernatorial action.
(Amends C.Cr.P. Art. 817, 893.2, and 893.3(A), (B), (C), (D), and (E)(1)(a))