Author Topic: extra charge for carrying  (Read 7170 times)

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Offline kryptonian

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extra charge for carrying
« on: November 05, 2010, 10:12:38 PM »
not sure on this one. if you are OC and accidentally or even intentionally commit a crime and you are armed - can the possesion of a weapon legally casrried during the commision of the offense be tacked on?
here's the situation i ran into. after work i stopped off at walmart to grab some things. OC of course. after i checked out i went to put stuff in my jeep. it was only then that i noticed that an item (sinus medication) wasn't bagged and receipt showed i didn't pay for it. i returned in the store and paid at self checkout as i did before. the cashier running self checkout remembered me from 3 minutes earlier and asked what happened and told him i didn't see it and came in to pay. he thanked me for my honesty and i left. if leaving the initial time and was confronted by walmart security or whoever and was accused of the theft would my firearm automatically be a kicker on top of the charge? it wouldn't have been used to effect the commision.
quick legal lesson - all crimes are attached a culpable mental state. intentionally, knowingly, recklessly or carelessly. i guess mine would have been carelessly but commited anyway. rather than a simple theft charge to defend i may have had to defend against the automatic 2 year sentence for the handgun on me legal carry or not. if nothing else i was a good, honest example of OC to the store manager who was standing there when i returned.
any simple little thing could put us in that situation.
any ideas?
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Offline CV67PAT

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Re: extra charge for carrying
« Reply #1 on: November 05, 2010, 10:20:08 PM »
I think that it is a mandatory two year sentence for the possession of a gun during the commission of a felony.
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Offline TheQ

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Re: extra charge for carrying
« Reply #2 on: November 18, 2010, 11:45:48 PM »
No mens rea, no crime.
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Offline Bronson

  • Posts: 554
Re: extra charge for carrying
« Reply #3 on: November 19, 2010, 01:13:45 AM »
No mens rea, no crime.

It doesn't apply in MI  but I've read (I can't cite it because I can't remember where I read it) that in at least one state trespassing while in a possession of a firearm automatically jumps to felonious trespass.  I just did a quick Google search for "felony trespass" and found that FL has this provision.  

Quote
(c)  If the offender is armed with a firearm or other dangerous weapon, or arms himself or herself with such while in the structure or conveyance, the trespass in a structure or conveyance is a felony of the third degree,

So again, while MI doesn't have this provision in our law it isn't beyond the realm of possibility.

http://www.heritage.org/research/reports/2010/05/the-criminal-intent-report-congress-is-eroding-the-mens-rea-requirement-in-federal-criminal-law

This is a good book that many here would probably enjoy "The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice"

Bronson
Those who expect to reap the benefits of freedom, must, like men, undergo the fatigue of supporting it. – Thomas Paine