Penalty Statute - 775.083
Penalty Statute - 775.084
775.084 Violent career criminals; habitual felony offenders
and habitual violent felony offenders; three-time violent felony
offenders; definitions; procedure; enhanced penalties or mandatory
minimum prison terms.
(1) As used in this act:
(a) "Habitual felony offender" means a defendant for whom the court
may impose an extended term of imprisonment, as provided in
paragraph (4)(a), if it finds that:
1. The defendant has previously been convicted of any combination
of two or more felonies in this state or other qualified offenses.
2. The felony for which the defendant is to be sentenced was
committed:
a. While the defendant was serving a prison sentence or other
sentence, or court-ordered or lawfully imposed supervision that is
imposed as a result of a prior conviction for a felony or other
qualified offense; or
b. Within 5 years of the date of the conviction of the defendant's
last prior felony or other qualified offense, or within 5 years of
the defendant's release from a prison sentence, probation, community
control, control release, conditional release, parole or
court-ordered or lawfully imposed supervision or other sentence that
is imposed as a result of a prior conviction for a felony or other
qualified offense, whichever is later.
3. The felony for which the defendant is to be sentenced, and one
of the two prior felony convictions, is not a violation of s. 893.13
relating to the purchase or the possession of a controlled
substance.
4. The defendant has not received a pardon for any felony or other
qualified offense that is necessary for the operation of this
paragraph.
5. A conviction of a felony or other qualified
offense necessary to the operation of this paragraph has not been
set aside in any postconviction proceeding.
(b) "Habitual violent felony offender" means a defendant for whom
the court may impose an extended term of imprisonment, as provided
in paragraph (4)(b), if it finds that:
1. The defendant has previously been convicted of a felony or an
attempt or conspiracy to commit a felony and one or more of such
convictions was for:
a. Arson;
b. Sexual battery;
c. Robbery;
d. Kidnapping;
e. Aggravated child abuse;
f. Aggravated abuse of an elderly person or disabled adult;
g. Aggravated assault with a deadly weapon;
h. Murder;
i. Manslaughter;
j. Aggravated manslaughter of an elderly person or disabled adult;
k. Aggravated manslaughter of a child;
l. Unlawful throwing, placing, or discharging of a destructive
device or bomb;
m. Armed burglary;
n. Aggravated battery; or
o. Aggravated stalking.
2. The felony for which the defendant is to be sentenced was
committed:
a. While the defendant was serving a prison sentence or other
sentence, or court-ordered or lawfully imposed supervision that is
imposed as a result of a prior conviction for an enumerated felony;
or
b. Within 5 years of the date of the conviction of the last prior
enumerated felony, or within 5 years of the defendant's release from
a prison sentence, probation, community control, control release,
conditional release, parole, or court-ordered or lawfully imposed
supervision or other sentence that is imposed as a result of a prior
conviction for an enumerated felony, whichever is later.
3. The defendant has not received a pardon on the ground of
innocence for any crime that is necessary for the operation of this
paragraph.
4. A conviction of a crime necessary to the
operation of this paragraph has not been set aside in any
postconviction proceeding.
(c) "Three-time violent felony offender" means a defendant for whom
the court must impose a mandatory minimum term of imprisonment, as
provided in paragraph (4)(c), if it finds that:
1. The defendant has previously been convicted as an adult two or
more times of a felony, or an attempt to commit a felony, and two or
more of such convictions were for committing, or attempting to
commit, any of the following offenses or combination thereof:
a. Arson;
b. Sexual battery;
c. Robbery;
d. Kidnapping;
e. Aggravated child abuse;
f. Aggravated abuse of an elderly person or disabled adult;
g. Aggravated assault with a deadly weapon;
h. Murder;
i. Manslaughter;
j. Aggravated manslaughter of an elderly person or disabled adult;
k. Aggravated manslaughter of a child;
l. Unlawful throwing, placing, or discharging of a destructive
device or bomb;
m. Armed burglary;
n. Aggravated battery;
o. Aggravated stalking;
p. Home invasion/robbery;
q. Carjacking; or
r. An offense which is in violation of a law of any other
jurisdiction if the elements of the offense are substantially
similar to the elements of any felony offense enumerated in
sub-subparagraphs a.-q., or an attempt to commit any such felony
offense.
2. The felony for which the defendant is to be sentenced is one of
the felonies enumerated in sub-subparagraphs 1.a.-q. and was
committed:
a. While the defendant was serving a prison sentence or other
sentence imposed as a result of a prior conviction for any offense
enumerated in sub-subparagraphs 1.a.-r.; or
b. Within 5 years after the date of the conviction of the last
prior offense enumerated in sub-subparagraphs 1.a.-r., or within 5
years after the defendant's release from a prison sentence,
probation, community control, or other sentence imposed as a result
of a prior conviction for any offense enumerated in
sub-subparagraphs 1.a.-r., whichever is later.
3. The defendant has not received a pardon on the ground of
innocence for any crime that is necessary for the operation of this
paragraph.
4. A conviction of a crime necessary to the
operation of this paragraph has not been set aside in any
postconviction proceeding.
(d) "Violent career criminal" means a defendant for whom the court
must impose imprisonment pursuant to paragraph (4)(d), if it finds
that:
1. The defendant has previously been convicted as an adult three or
more times for an offense in this state or other qualified offense
that is:
a. Any forcible felony, as described in s. 776.08;
b. Aggravated stalking, as described in s. 784.048(3) and (4);
c. Aggravated child abuse, as described in s. 827.03(2);
d. Aggravated abuse of an elderly person or disabled adult, as
described in s. 825.102(2);
e. Lewd or lascivious battery, lewd or lascivious molestation, lewd
or lascivious conduct, or lewd or lascivious exhibition, as
described in s. 800.04;
f. Escape, as described in s. 944.40; or
g. A felony violation of chapter 790 involving the use or
possession of a firearm.
2. The defendant has been incarcerated in a state prison or a
federal prison.
3. The primary felony offense for which the defendant is to be
sentenced is a felony enumerated in subparagraph 1. and was
committed on or after October 1, 1995, and:
a. While the defendant was serving a prison sentence or other
sentence, or court-ordered or lawfully imposed supervision that is
imposed as a result of a prior conviction for an enumerated felony;
or
b. Within 5 years after the conviction of the last prior enumerated
felony, or within 5 years after the defendant's release from a
prison sentence, probation, community control, control release,
conditional release, parole, or court-ordered or lawfully imposed
supervision or other sentence that is imposed as a result of a prior
conviction for an enumerated felony, whichever is later.
4. The defendant has not received a pardon for any felony or other
qualified offense that is necessary for the operation of this
paragraph.
5. A conviction of a felony or other qualified
offense necessary to the operation of this paragraph has not been
set aside in any postconviction proceeding.
(e) "Qualified offense" means any offense, substantially similar in
elements and penalties to an offense in this state, which is in
violation of a law of any other jurisdiction, whether that of
another state, the District of Columbia, the United States or any
possession or territory thereof, or any foreign jurisdiction, that
was punishable under the law of such jurisdiction at the time of its
commission by the defendant by death or imprisonment exceeding 1
year.
(2) For the purposes of this section, the placing of a person on
probation or community control without an adjudication of guilt
shall be treated as a prior conviction.
(3)(a) In a separate proceeding, the court shall determine if the
defendant is a habitual felony offender or a habitual violent felony
offender. The procedure shall be as follows:
1. The court shall obtain and consider a presentence investigation
prior to the imposition of a sentence as a habitual felony offender
or a habitual violent felony offender.
2. Written notice shall be served on the defendant and the
defendant's attorney a sufficient time prior to the entry of a plea
or prior to the imposition of sentence in order to allow the
preparation of a submission on behalf of the defendant.
3. Except as provided in subparagraph 1., all evidence presented
shall be presented in open court with full rights of confrontation,
cross-examination, and representation by counsel.
4. Each of the findings required as the basis for such sentence
shall be found to exist by a preponderance of the evidence and shall
be appealable to the extent normally applicable to similar findings.
5. For the purpose of identification of a habitual felony offender
or a habitual violent felony offender, the court shall fingerprint
the defendant pursuant to s. 921.241.
6. For an offense committed on or after October 1, 1995, if the
state attorney pursues a habitual felony offender sanction or a
habitual violent felony offender sanction against the defendant and
the court, in a separate proceeding pursuant to this paragraph,
determines that the defendant meets the criteria under subsection
(1) for imposing such sanction, the court must sentence the
defendant as a habitual felony offender or a habitual violent felony
offender, subject to imprisonment pursuant to this section unless
the court finds that such sentence is not necessary for the
protection of the public. If the court finds that it is not
necessary for the protection of the public to sentence the defendant
as a habitual felony offender or a habitual violent felony offender,
the court shall provide written reasons; a written transcript of
orally stated reasons is permissible, if filed by the court within 7
days after the date of sentencing. Each month, the court shall
submit to the Office of Economic and Demographic Research of the
Legislature the written reasons or transcripts in each case in which
the court determines not to sentence a defendant as a habitual
felony offender or a habitual violent felony offender as provided in
this subparagraph.
(b) In a separate proceeding, the court shall determine if the
defendant is a three-time violent felony offender. The procedure
shall be as follows:
1. The court shall obtain and consider a presentence investigation
prior to the imposition of a sentence as a three-time violent felony
offender.
2. Written notice shall be served on the defendant and the
defendant's attorney a sufficient time prior to the entry of a plea
or prior to the imposition of sentence in order to allow the
preparation of a submission on behalf of the defendant.
3. Except as provided in subparagraph 1., all evidence presented
shall be presented in open court with full rights of confrontation,
cross-examination, and representation by counsel.
4. Each of the findings required as the basis for such sentence
shall be found to exist by a preponderance of the evidence and shall
be appealable to the extent normally applicable to similar findings.
5. For the purpose of identification of a three-time violent felony
offender, the court shall fingerprint the defendant pursuant to s.
921.241.
6. For an offense committed on or after the effective date of this
act, if the state attorney pursues a three-time violent felony
offender sanction against the defendant and the court, in a separate
proceeding pursuant to this paragraph, determines that the defendant
meets the criteria under subsection (1) for imposing such sanction,
the court must sentence the defendant as a three-time violent felony
offender, subject to imprisonment pursuant to this section as
provided in paragraph (4)(c).
(c) In a separate proceeding, the court shall determine whether the
defendant is a violent career criminal with respect to a primary
offense committed on or after October 1, 1995. The procedure shall
be as follows:
1. Written notice shall be served on the defendant and the
defendant's attorney a sufficient time prior to the entry of a plea
or prior to the imposition of sentence in order to allow the
preparation of a submission on behalf of the defendant.
2. All evidence presented shall be presented in open court with
full rights of confrontation, cross-examination, and representation
by counsel.
3. Each of the findings required as the basis for such sentence
shall be found to exist by a preponderance of the evidence and shall
be appealable only as provided in paragraph (d).
4. For the purpose of identification, the court shall fingerprint
the defendant pursuant to s. 921.241.
5. For an offense committed on or after October 1, 1995, if the
state attorney pursues a violent career criminal sanction against
the defendant and the court, in a separate proceeding pursuant to
this paragraph, determines that the defendant meets the criteria
under subsection (1) for imposing such sanction, the court must
sentence the defendant as a violent career criminal, subject to
imprisonment pursuant to this section unless the court finds that
such sentence is not necessary for the protection of the public. If
the court finds that it is not necessary for the protection of the
public to sentence the defendant as a violent career criminal, the
court shall provide written reasons; a written transcript of orally
stated reasons is permissible, if filed by the court within 7 days
after the date of sentencing. Each month, the court shall submit to
the Office of Economic and Demographic Research of the Legislature
the written reasons or transcripts in each case in which the court
determines not to sentence a defendant as a violent career criminal
as provided in this subparagraph.
(d)1. A person sentenced under paragraph (4)(d)
as a violent career criminal has the right of direct appeal, and
either the state or the defendant may petition the trial court to
vacate an illegal sentence at any time. However, the determination
of the trial court to impose or not to impose a violent career
criminal sentence is presumed appropriate and no petition or motion
for collateral or other postconviction relief may be considered
based on an allegation either by the state or the defendant that
such sentence is inappropriate, inadequate, or excessive.
2. It is the intent of the Legislature that, with respect to both
direct appeal and collateral review of violent career criminal
sentences, all claims of error or illegality be raised at the first
opportunity and that no claim should be filed more than 2 years
after the judgment and sentence became final, unless it is
established that the basis for the claim could not have been
ascertained at the time by the exercise of due diligence. Technical
violations and mistakes at trials and sentencing proceedings
involving violent career criminals that do not affect due process or
fundamental fairness are not appealable by either the state or the
defendant.
3. It is the intent of the Legislature that no funds, resources, or
employees of the state or its political subdivisions be used,
directly or indirectly, in appellate or collateral proceedings based
on violent career criminal sentencing, except when such use is
constitutionally or statutorily mandated.
(4)(a) The court, in conformity with the procedure established in
paragraph (3)(a), may sentence the habitual felony offender as
follows:
1. In the case of a life felony or a felony of the first degree,
for life.
2. In the case of a felony of the second degree, for a term of
years not exceeding 30.
3. In the case of a felony of the third degree, for a term of years
not exceeding 10.
(b) The court, in conformity with the procedure established in
paragraph (3)(a), may sentence the habitual violent felony offender
as follows:
1. In the case of a life felony or a felony of the first degree,
for life, and such offender shall not be eligible for release for 15
years.
2. In the case of a felony of the second degree, for a term of
years not exceeding 30, and such offender shall not be eligible for
release for 10 years.
3. In the case of a felony of the third degree, for a term of years
not exceeding 10, and such offender shall not be eligible for
release for 5 years.
(c)1. The court, in conformity with the procedure established in
paragraph (3)(b), must sentence the three-time violent felony
offender to a mandatory minimum term of imprisonment, as follows:
a. In the case of a felony punishable by life, to a term of
imprisonment for life;
b. In the case of a felony of the first degree, to a term of
imprisonment of 30 years;
c. In the case of a felony of the second degree, to a term of
imprisonment of 15 years; or
d. In the case of a felony of the third degree, to a term of
imprisonment of 5 years.
2. Nothing in this subsection shall prevent a court from imposing a
greater sentence of incarceration as authorized by law.
(d) The court, in conformity with the procedure established in
paragraph (3)(c), shall sentence the violent career criminal as
follows:
1. In the case of a life felony or a felony of the first degree,
for life.
2. In the case of a felony of the second degree, for a term of
years not exceeding 40, with a mandatory minimum term of 30 years'
imprisonment.
3. In the case of a felony of the third degree, for a term of years
not exceeding 15, with a mandatory minimum term of 10 years'
imprisonment.
(e) If the court finds, pursuant to paragraph (3)(a) or paragraph
(3)(c), that it is not necessary for the protection of the public to
sentence a defendant who meets the criteria for sentencing as a
habitual felony offender, a habitual violent felony offender, or a
violent career criminal, with respect to an offense committed on or
after October 1, 1995, sentence shall be imposed without regard to
this section.
(f) At any time when it appears to the court that the defendant is
eligible for sentencing under this section, the court shall make
that determination as provided in paragraph (3)(a), paragraph
(3)(b), or paragraph (3)(c).
(g) A sentence imposed under this section shall not be increased
after such imposition.
(h) A sentence imposed under this section is not subject to s.
921.002.
(i) The
provisions of this section do not apply to capital felonies, and a
sentence authorized under this section does not preclude the
imposition of the death penalty for a capital felony.
(j) The provisions of s. 947.1405 shall apply to persons sentenced
as habitual felony offenders and persons sentenced as habitual
violent felony offenders.
(k)1. A defendant sentenced under this section as a habitual felony
offender, a habitual violent felony offender, or a violent career
criminal is eligible for gain-time granted by the Department of
Corrections as provided in s. 944.275(4)(b).
2. For an offense committed on or after October 1, 1995, a
defendant sentenced under this section as a violent career criminal
is not eligible for any form of discretionary early release, other
than pardon or executive clemency, or conditional medical release
granted pursuant to s. 947.149.
3. For an offense committed on or after July 1, 1999, a defendant
sentenced under this section as a three-time violent felony offender
shall be released only by expiration of sentence and shall not be
eligible for parole, control release, or any form of early release.
(5) In order to be counted as a prior felony for purposes of
sentencing under this section, the felony must have resulted in a
conviction sentenced separately prior to the current offense and
sentenced separately from any other felony conviction that is to be
counted as a prior felony.
(6) The purpose of this section is to provide uniform punishment
for those crimes made punishable under this section, and to this
end, a reference to this section constitutes a general reference
under the doctrine of incorporation by reference.
History.--s.
5, ch. 71-136; s. 7, ch. 74-383; s. 1, ch. 75-116; s. 2, ch. 75-298;
s. 1, ch. 77-174; s. 6, ch. 88-131; s. 1, ch. 89-280; s. 2, ch.
93-406; s. 2, ch. 95-182; s. 8, ch. 95-195; s. 14, ch. 96-322; s.
44, ch. 96-388; s. 12, ch. 97-78; s. 12, ch. 97-194; s. 11, ch.
98-204; s. 3, ch. 99-188; s. 3, ch. 99-201; s. 3, ch. 2000-246; ss.
1, 2, ch. 2002-210; s. 2, ch. 2003-23.
The material on this page is not intended to be legal advice. Florida criminal law is continually changing therefore some of the provisions contained here may be out of date. It is always best to consult a Florida criminal defense lawyer about your legal rights and responsibilities regarding your particular case.
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