Florida Sentencing Enhancements Pt. 3: Three Time Violent Felony Offenders & Violent Career Criminals


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This article is the third installment in our Florida Sentencing Enhancements series and presents an overview of the Three Time Violent Felony Offender and Violent Career Criminal statutes.

In Florida, a three time violent felony offender designation requires the court to impose specified minimum mandatory terms of imprisonment upon conviction. To qualify for this particular enhancement, the accused person must have been previously convicted, two or more times, of any of the following offenses, or an attempt to commit any of the following offenses: Arson; Sexual battery; Robbery;
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Kidnapping; Aggravated child abuse; Aggravated abuse of an elderly person or disabled adult; Aggravated assault with a deadly weapon; Murder; Manslaughter; Aggravated manslaughter of an elderly person or disabled adult; Aggravated manslaughter of a child; Unlawful throwing, placing, or discharging of a destructive device or bomb; Armed burglary; Aggravated battery; Aggravated stalking; Home invasion robbery; Carjacking; any offense committed in another jurisdiction with elements similar to the preceding list of offenses, or an attempt to commit any of the preceding offenses.

Next, the offense for which the defendant is to be sentenced must be one of the enumerated preceding offenses and must have been committed either: (1) while the defendant was serving a prison or other sentence imposed as a result of a prior conviction for any of the preceding offenses; or (2) within five years after the date of conviction for the last prior enumerated offense, or within five years after the defendant's release from a prison sentence, probation, community control, or other sentence imposed for a prior enumerated offense, whichever is later.

The applicable statute requires the court, in a "separate proceeding", to determine whether the defendant is a three time violent felony offender, in accordance with certain procedures. First, the court is required to obtain and consider a presentence investigation report (which is prepared by the Florida Department of Corrections and provides a detailed overview of the defendant's history and characteristics). Written notice must be served (by the state attorney) on the defendant and the defendant's attorney prior to the entry of a plea and well enough in advance to allow the defense to prepare for sentencing. This may very well include a challenge to the defendant's purported qualifications to be sentenced as a three time violent felony offender. All evidence must be presented in open court with full rights of confrontation, cross-examination, and, of course, representation by counsel. The state has the burden of establishing the defendant's qualifications for this enhancement only by a preponderance of the evidence.

If the court determines that the defendant qualifies as a three time violent felony offender, it must sentence the defendant to a mandatory minimum term of imprisonment as follows: (a) in the case of a felony punishable by life, to life; (b) in the case of a felony of the first degree, to a term of imprisonment of thirty years; (c) in the case of a felony of the second degree, to a term of imprisonment of fifteen years; and (d) in the case of a felony of third degree, to a term of imprisonment of five years. Much like the PRR statute, the sentencing guidelines do not apply in the case of a three time violent felony offender and the court has no discretion to impose a sentence that is less than the statutory maximum.

A violent career criminal designation authorizes the court to sentence the defendant to a period of years that far exceeds the otherwise applicable statutory maximum (for the pending offense) and to impose certain minimum mandatory sentences. To qualify as a violent career criminal, the defendant must first have been convicted, as an adult, three or more times for an offense that is: (a) a forcible felony, as defined in Florida Statutes section 776.08; (b) Aggravated stalking; (c) Aggravated child abuse; (d) Aggravated abuse of an elderly person or disabled adult; (5) Lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct, or lewd or lascivious exhibition; (e) Escape; or (f) a felony violation of chapter 790 involving involving the use or possession of a firearm. Next, the defendant must have been previously incarcerated in a state or federal prison. Finally, the primary offense for which the defendant is to be sentenced must be one of the preceding enumerated felonies, committed on or after October 1st, 1995, and must have been committed either (1) while the defendant was serving a prison or other sentence, or court ordered supervision that was imposed as a result of a prior conviction for an enumerated felony; or (2) within five years after the conviction of the last prior enumerated felony, or within five years after the defendant's release from a prison sentence, probation, community control, control release, conditional release, parole, or court ordered supervision imposed as a result of a conviction for an enumerated felony, whichever is later.

Like the three time violent felony offender, the court is required to determine the defendant's qualifications to be sentenced as a violent career criminal in a "separate proceeding". Here again, the state must provide written notice of its intent to seek this enhancement, well enough in advance of a plea, to allow the defense sufficient time to prepare for sentencing. All evidence must be presented in open court with full rights of confrontation, cross-examination, and the right to counsel. The state must prove the defendant's qualifications to be sentenced as a violent career criminal only by a preponderance of the evidence.

Where the defendant qualifies, the court may sentence the him or her as follows: (a) in the case of a life felony, or a felony of the first degree, for life; (b) in the case of a felony of the second degree, for a term of years not exceeding 40, with a mandatory minimum of 30 year's imprisonment; (c) 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 year's imprisonment. Unlike the three time violent felony offender provisions, the court has some discretion in deciding whether to sentence an accused person as a violent career criminal, where the person otherwise qualifies. In accordance with the applicable statute, if the court finds that it is not necessary for the protection of the public, sentence shall be imposed "without regard to this section".

Florida has some very draconian recidivist sentencing laws. If you have been charged with any of the offenses listed above, and have previously been convicted of two or more, there is a good chance that the state will file a notice of enhanced penalty and seek to have you sentenced as a three time violent felony offender or violent career criminal. In either instance, representation by an experienced criminal defense attorney is something you simply cannot go without.

ABOUT THE AUTHOR: Donald J. Kilfin, The Kilfin Law Firm, P.C.
Donald J. Kilfin is a former Pinellas county state prosecutor. He owns and operates The Kilfin Law Firm, P.C., a Tampa Bay area criminal defense firm representing clients in St. Petersburg, Clearwater, Tampa, New Port Richey, Dade City, and Bradenton.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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