Advanced Sentencing Issues In Florida State Courts:

Alternatives to Criminal Punishment Code Sentencing, Enhancements, Reclassifications, and Special Sanctions
by

Hon. William H. Burgess, III, B.C.S.

Prepared for the Florida Association of Criminal Defense Lawyers Criminal Law Certification Review Seminar Tampa Marriott Westshore Hotel Tampa, Florida April 10-11, 2014
2014 William H. Burgess, III and Thomson Reuters No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without prior permission in writing from the author.

About the Author HON. WILLIAM H. BURGESS, III, is a circuit court judge in Floridas Sixth Judicial Circuit. Prior to taking the bench, he was a trial attorney and prosecutor for the State of Florida. Judge Burgess has been a member of The Florida Bar since 1995 and has been Board Certified in Criminal Trial since 2001. He is a past member of The Florida Bars Judicial Administration and Evaluation Committee, the Standing Committee on Professionalism, the Judicial Administration, Selection and Tenure Committee, and the Standing Committee on the Unlicensed Practice of Law. Mr. Burgess has also served as an adjunct professor at St. Petersburg College, lecturing on the law to future police officers. He lectures at the Criminal Law Certification Review for the Florida Association of Criminal Defense Lawyers, and has lectured on sentencing, evidence, professionalism, trial practice, and other criminal law-related topics for the Florida Prosecuting Attorneys Association, the Florida Public Defender Association, the Broward County Bar Association, the St. Petersburg Bar Association, the Pinellas County Association of Criminal Defense Lawyers, and the judges of the Sixth Judicial Circuit. He has also taught trial advocacy as an adjunct professor at Stetson Law School. Judge Burgess received his J.D. from Washington College of Law, The American University; his M.P.A. from Clark University; and his B.A. in Political Science from the University of Massachusetts. He served in the U.S. Army from 1976 to 1995, in Infantry, Military Intelligence, and, for most of his career, Special Forces, including wartime command experience in the Persian Gulf. Mr. Burgess resides in Seminole, Florida. He is the author of FLORIDA SENTENCING (Thomson-West 2006-2013), and also has a blog, Florida Sentencing, which can be found at http://floridasentencing.blogspot.com/ and http://floridasentencing.wordpress.com/. Judge Burgess also writes about other areas of the law and most recently authored Negotiability of Promissory Notes in Foreclosure Cases: Ballast is not Luggage, published as the cover article in the March 2014 issue of The Florida Bar Journal.

Contents
1. Alternatives to, and mitigation of, Criminal Punishment Code sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.1 Preemption of felony prosecution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.2. Non-prosecution agreements and deferred disposition agreements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.3. Pretrial diversion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.3.1. General pretrial diversion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1.3.2. Drug offender pretrial intervention.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1.3.3. Bad check pretrial intervention program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1.3.4. Misdemeanor drug pretrial diversion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 1.4. Post-adjudicatory drug treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 1.5. Prison diversion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 1.6. Drug offender probation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 1.7. Drug court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 1.8. Sentencing back as a juvenile. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 1.9. Downward departure from the presumptive minimum calculated sentence. . . . . . . . . . . . . . . . . . . . . . . . . . 15 1.9.1. Burden, level and sufficiency of proof in departure sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 1.9.2. Defense obligations in departure sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 1.9.3. Procedures to be followed by the judge in departure sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 1.9.4. Statutory mitigating circumstances.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 1.9.4.1. The departure results from a legitimate, uncoerced plea bargain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 1.9.4.2. The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 1.9.4.3. The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 1.9.4.4. The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.. . . . . . . . . . . . . . . . . . . . . . . . . . 24 1.9.4.5. The need for payment of restitution to the victim outweighs the need for a prison sentence. . . . . . . . . . 26 1.9.4.6. The victim was an initiator, willing participant, aggressor, or provoker of the incident. . . . . . . . . . . . . . 27 1.9.4.7. The defendant acted under extreme duress or under the domination of another person. . . . . . . . . . . . . . 29 1.9.4.8. Before the identity of the defendant was determined, the victim was substantially compensated. . . . . . . 30 1.9.4.9. The defendant cooperated with the State to resolve the current offense or any other offense.. . . . . . . . . 31 1.9.4.10. The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 1.9.4.11. At the time of the offense the defendant was too young to appreciate the consequences of the offense. 35 1.9.4.12. The defendant is to be sentenced as a youthful offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 1.9.4.13. The defendant is a nonviolent felony offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 1.9.4.14. The defendant was making a good faith effort to obtain or provide medical assistance for a drug-related overdose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 1.9.4.15. Substantial assistance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 1.9.5. Non-statutory mitigating circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 1.9.5.1. Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 1.9.5.2 Enticement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 1.9.5.3. Sentencing entrapment and sentence manipulation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 1.9.5.3.1. Sentencing entrapment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 1.9.5.3.2. Sentence manipulation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 1.9.5.4. Lower sentence of an equally or more culpable co-defendant.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 1.9.5.5. Diminished mental capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 1.9.5.6. Extraordinary susceptibility.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 1.9.5.7. Extraordinary restitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 1.9.5.8. Totality of circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 1.9.6. Nexus to offense.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

 1.9.7. Limits on sentence mitigation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 1.9.8. Resentencing on remand after reversal of a downward departure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 2. Enhancement of penalty and reclassification of offense.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 2.1. Proof of prison release date for enhancement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 2.2. Criminal gang. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 2.3. Wearing a mask or hood. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 2.4. Evidencing prejudice while committing offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 2.5. Sexual battery by multiple perpetrators.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 2.6. Unlawful taking, possession, or use of law enforcement officers firearm. . . . . . . . . . . . . . . . . . . . . . . . . . . 74 2.7. Reclassifications of various types of batteries and assaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 2.7.1. Battery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 2.7.2. Assault or battery on emergency medical care providers, firefighters, law enforcement explorers, law enforcement officers, public transit employees or agents, or other specified officers. . . . . . . . . . . . . . . . . . . . . . . . 76 2.7.3. Assault or battery on sexually violent predators detention or commitment facility staff. . . . . . . . . . . . . . . 78 2.7.4. Battery on detention or commitment facility staff or a juvenile probation officer. . . . . . . . . . . . . . . . . . . . 79 2.7.5. Battery on health services personnel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 2.7.6. Battery of facility employee by throwing, tossing, or expelling certain fluids or materials. . . . . . . . . . . . . 79 2.7.7. Assault or battery on persons 65 years of age or older.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 2.7.8. Assault or battery on specified officials or employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 2.7.9. Assault or battery by a person who is being detained in a prison, jail, or other detention facility upon visitor or other detainee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 2.7.10. Assault or battery on code inspectors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 2.8. Reclassifications of burglary and theft during states of emergency.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 2.9. Reclassifications of theft of emergency medical equipment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 2.10. Reclassifications of theft of law enforcement equipment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 2.11. Reclassifications of sexual performance by a child; computer pornography; transmission of pornography by electronic device; or transmission of material harmful to minors to a minor by electronic device or equipment.. . . 84 2.12. Reclassifications of offenses involving minors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 2.13. Unlawful filing of false documents or records against real or personal property. . . . . . . . . . . . . . . . . . . . . 85 2.14. False reports to law enforcement authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 2.15. Enhancement of penalty for cruelty to animals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 2.16. Minimum mandatory sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 2.16.1. Capital felonies.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 2.16.2. Life felonies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 2.16.3. Prison releasee reoffender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 2.16.4. Dangerous sexual felony offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 2.16.5. Felon in possession of firearms or ammunition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 2.16.6. Possession or use of firearm or destructive device in commission of crime.. . . . . . . . . . . . . . . . . . . . . . . 95 2.16.7. Drug possession, sale, and trafficking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 2.16.8. Manufacture of drugs in presence of children. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 2.16.9. DUI manslaughter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 2.16.10. Leaving the scene of a crash resulting in death. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 2.16.11. Fleeing or attempting to elude law enforcement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 2.16.12. Assault or battery on law enforcement officers and other designated persons. . . . . . . . . . . . . . . . . . . . 115 2.16.13. Murder or attempted murder of a law enforcement officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 2.16.14. Aggravated assault or battery on an elderly person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 2.16.15. Domestic violence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 2.16.16. Elimination of the Taylor window. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 2.17. Prison releasee reoffender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 2.18. Habitual felony offender, habitual violent felony offender, three-time violent felony offender, and violent career criminal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 2.18.1. Probation and community control versus sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

ii

 2.18.2. Determination hearing and presentence investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.18.3. Required notice of intent to seek enhanced penalties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.18.4. Fact of prior conviction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.18.5. Habitual felony offender.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.18.6. Habitual violent felony offender.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.18.7. Three-time violent felony offender.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.18.8. Violent career criminal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.18.9. Scoresheet preparation where PRR, VCC, HFO, HVFO and 3-Time VCC designations apply.. . . . . . . 2.19. 10/20/Life. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.20. Dangerous sexual felony offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Direct and collateral consequences and special sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1. DNA testing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2. Drivers license revocation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3. Loss of civil liberties upon conviction of a felony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4. Registration of convicted felons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5. Forfeiture.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6. HIV testing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.7. Castration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8. Sexual offender/sexual predator sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8.1. Sexual offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8.2. Sexual predator.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8.3. Mandatory designation on driver's license or identification card. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8.4. Mandatory designation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8.5. Removal of the requirement to register as a sexual offender or sexual predator in special circumstances. 3.9. Involuntary civil commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9.1. Baker Act commitment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9.2. Jimmy Ryce Act commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.10. Deportation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.11. Restraining orders upon conviction of stalking or cyberstalking.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TABLE 1: Summary of Punishments Authorized by Section 775.084.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FIGURE 1: Prison Releasee Reoffender Plea Colloquy.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FIGURE 2: Habitual Felony Offender Plea Colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FIGURE 3: Habitual Violent offender Plea Colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FIGURE 4: Violent Career Criminal Plea Colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

128 129 130 133 138 139 141 144 145 154 155 157 160 161 162 163 164 166 167 168 176 187 187 188 190 190 191 195 197 126 198 200 202 204

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 1. Alternatives to, and mitigation of, Criminal Punishment Code sentencing Although the Criminal Punishment Code is the primary sentencing scheme in operation in Florida, it is not the only sentencing regime; other schemes offering greater leniency or harsher punishment are available to a prosecutor or trial judge, and some are even mandated, under certain circumstances. Some are completely different alternatives to the Criminal Punishment Code; others provide an elevated floor for imprisonment, and others provide a ceiling that goes beyond the statutory maximum prison sentence that would otherwise cap the exposure of the defendant. A Criminal Punishment Code sentence may also be mitigated under certain circumstances. A mitigating circumstance, defined broadly as any aspect of a defendants character or record and any of the circumstances of the offense that reasonably may serve as a basis for imposing a sentence less than what would otherwise be required by law, may be statutory or non-statutory in nature.1 It is, therefore, very important that both prosecutors and defense attorneys familiarize themselves with these various enhancements, reclassifications, alternative sentencing schemes, and mitigators when assessing the possible sentence a defendant may be subject to upon conviction. What follows is a brief overview of these various aspects of non-Criminal Punishment Code sentencing. 1.1 Preemption of felony prosecution In certain unusual circumstances, a defendant may be able to preempt a felony prosecution and possible felony conviction through resolution in county court. This opportunity normally presents itself in one of two situations. The first situation is where a defendant is charged with a misdemeanor that, due to the defendant's prior record, can be enhanced as a recidivist crime. The most common examples are cases where the defendant has been charged with misdemeanor DUI, driving while license suspended or revoked, and/or battery, and those charges can be enhanced to felonies because of prior convictions for the same crimes. Normally, these charges are first docketed in county court, where they remain until the prosecutor elects to file a felony information in circuit court. If the sworn complaint charges the commission of a misdemeanor, the defendant may plead guilty to the charge at first appearance under Fla. R. Crim. P. 3.130 and the presiding judge may thereupon enter judgment and sentence without the necessity of any further formal charges being filed.2 An entry of judgment for the misdemeanor precludes the State from further prosecution of the charge as a felony. If the defendant does not elect to enter a plea to the misdemeanor at first appearance, he or she may do so for as long as the charge remains a misdemeanor. This is so even where a felony information has been filed in circuit court but the State does not object to the plea in county court and the defendant does not affirmatively mislead the court. Similarly, if the misdemeanor in question accompanies a felony to circuit court at the outset, the defendant can, with the courts permission, enter a plea to that misdemeanor before it is felonized, and thereby preclude felonization

See, Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978). Fla. R. Crim. P. 3.170(a).

of that charge.3 Where, for example, the defendant has been charged with a misdemeanor battery that can be felonized on the basis of the defendant's prior conviction for battery, and the felony would invoke the provisions of the Prison Releasee Reoffender Punishment Act, the decision to plea to the charge while it is still a misdemeanor can make a considerable difference in the defendants sentencing exposure. The second, and less common, situation is where the defendant has been cited for driving while license suspended or revoked for failure to appear or failure to pay civil penalty which, because of the defendants prior convictions can be enhanced to a felony. In addition to the option of pleading to the charge while it remains a misdemeanor, as described in the preceding paragraph, the defendant can elect pursuant to section 318.14(10)(a), before first appearance on the citation,4 to enter a plea of nolo contendere and provide proof of compliance to the clerk of the court or an authorized operator of a traffic violations bureau. In such a case, the citation will be disposed of as a civil infraction, and not as a criminal conviction, and adjudication will be withheld. A defendant may not make this election, however, if he or she has made an election under section 318.13(10)(a) in the preceding twelve months of the present election, and the defendant is allowed to make only three elections under this subsection.5 1.2. Non-prosecution agreements and deferred disposition agreements A defendant may be able to avoid the consequences that come with sentencing by avoiding prosecution itself. The two main methods of accomplishing this are through non-prosecution agreements and deferred disposition agreements with the prosecutor. A non-prosecution agreement is a voluntary arrangement between the defendant and the prosecutor in which the prosecutor does not file criminal charges and grants amnesty to the defendant in exchange for the defendant's agreement to fulfill certain conditions. Normally, the defendant is not required to admit guilt as part of the agreement and the agreement itself is in the form of an exchange of letters between the prosecutor and defense counsel rather than in the form of a formal written contract. In simplest form, such agreements involve an agreement not to prosecute an

See, McManama v. State, 816 So. 2d 781 (Fla. 2d DCA 2002).

Carter v. State, 763 So. 2d 1134 (Fla. 4th DCA 1999) (affirming summary denial of defendant's claim that he was entitled to resolve his felony driving while license suspended or revoked charge administratively through section 318.14(10) because defendant failed to avail himself of the statute until more than three months after his appearance date). 318.14(10)(a), Fla. Stat.; Janos v. State, 763 So. 2d 1094 (Fla. 4th DCA 1999); see also, Jones v. State, 832 So. 2d 207 (Fla. 1st DCA 2002) (facially sufficient allegation of ineffective assistance of counsel under Fla. R. Crim. P. 3.850 where defendant serving 53month sentence for felony driving while license suspended or revoked was not advised by counsel that he could have avoided an adjudication of guilt by taking advantage of the procedures in 318.14(10)(a), Fla. Stat.); also, Raulerson v. State, 763 So. 2d 285 (Fla. 2000); State v. Keirn, 720 So. 2d 1085 (Fla. 4th DCA 1998), decision approved, 763 So. 2d 285 (Fla. 2000).
5

individual in return for that individuals agreement to testify truthfully against other individuals or organizations. A more complex form of the non-prosecution agreement is the settlement agreement. A settlement agreement is a contractual resolution of interrelated civil and criminal cases under the terms of which the criminal defendant does not have to enter a plea in the criminal case, and any criminal charges or charges against the defendant are dismissed. Whereas the parties to a deferred prosecution agreement are the prosecutor and the defendant, parties to settlement agreements include the opposing litigants in the interrelated civil case or cases. Settlement agreements are most commonly used to resolve complex financial cases such as racketeering and organized fraud, and normally require settlement of civil claims through payment of large fines, costs, and restitution to those individuals who are, or would be, named as victims for purposes of restitution in the related criminal case. As with deferred prosecution agreements, settlement agreements may also provide for the appointment of a compliance monitor. A deferred disposition agreement, also known as a deferred prosecution agreement, is an out-of-court agreement between the defendant and the prosecutor, after formal charges have been filed, under the terms of which prosecution will be deferred for an agreed-upon time period during which the defendant must meet certain criteria, and if the defendant satisfies these criteria the prosecutor will dismiss any criminal charge or charge filed against the defendant, or commit to not filing a charge if one has not been filed. Deferred prosecution can be used with individuals and corporations, in cases involving simple or complex crimes. The most common type of deferred prosecution is found in the pretrial diversion programs of the Department of Corrections and the various State Attorney offices. Deferred prosecution agreements normally require the defendant admit guilt, waive speedy trial and, in some cases, waive attorney-client privilege and records confidentiality as to certain matters, for the term of the agreement and make restitution to the victims of any criminal conduct contemplated within the agreement. Where the defendant is a corporation, the agreement may include provisions by which the prosecutor can control certain activities of the corporate defendant. In complex cases, the agreement may also provide for the appointment of an independent compliance monitor to oversee the defendant's adherence to the agreement. Deferred prosecutions in which the charges have been dismissed may not be scored on a defendants scoresheet for a subsequent offense as prior record. Agreements not to prosecute and deferred prosecution agreements are out-of-court contractual resolutions to criminal cases and are subject to interpretation and enforcement under the law of contracts. They are subject to recision or, where one party has wholly or substantially complied with the terms, specific enforcement. The trial court also has the authority to dismiss the

criminal charges against the defendant as a remedy for the States refusal to comply with such an agreement.6 1.3. Pretrial diversion Defendants charged with a crime may be eligible, under certain circumstances, for pretrial diversion in lieu of prosecution pursuant to section 948.08, Fla. Stat. and other statutes, before or after the filing of an information or the return of an indictment against the defendant. A condition precedent to participation in such a diversion program is a binding agreement between the defendant and the State. A pretrial intervention (PTI) agreement is in the nature of a contract, similar to a plea agreement. Thus, rules of contract law apply, as they do to other types of plea agreements.7 A party to a plea agreement may waive any right to which he or she is legally entitled under the Constitution, a statute, or a contract.8 Diversion programs are not without direct and collateral consequences for the defendant, however, and it is not altogether rare for a defendant or the State to seek relief from contractual obligations, on the same bases that parties to civil contracts seek relief. A defendant will not, however, be relieved of an obligation that was included as a specific component of a plea agreement that was bargained for and voluntarily entered into by that defendant.9 Mutual mistake of material fact can, for example, be a basis on which to set aside a plea agreement.10 Unilateral mistake cannot, however, provide a basis for the trial court to set a PTI agreement aside where the State has fully performed its obligations under the agreement.11 Similarly, the foreseeable collateral consequences

State v. Simons, 22 So. 3d 734 (Fla. 1st DCA 2009) (Court can dismiss charges where State refuses to honor terms of settlement agreement). A.D.W. v. State, 777 So. 2d 1101 (Fla. 2d DCA 2001); see also, Metellus v. State, 817 So. 2d 1009 (Fla. 5th DCA 2002), decision approved, 900 So. 2d 491 (Fla. 2005) (holding that a defendant will not be relieved of an obligation that was included as a specific component of a plea agreement that was bargained for and voluntarily entered into by him), approved on other grounds, 900 So. 2d 491 (Fla. 2005); State v. Frazier, 697 So. 2d 944 (Fla. 3d DCA 1997).
8 7

State, Dept. of Health and Rehabilitative Services v. E.D.S. Federal Corp., 631 So. 2d 353 (Fla. 1st DCA

1994).
9

Allen v. State, 642 So. 2d 815 (Fla. 1st DCA 1994).

See, Handley v. State, 890 So. 2d 529 (Fla. 2d DCA 2005) (citing Fulcher v. State, 875 So. 2d 647, 650 (Fla. 3d DCA 2004) (Cope, J., specially concurring)). See, Hinzelin v. Bailly, 155 Fla. 837, 22 So. 2d 43 (1945) (holding that where a contract for exchange of deeds was fully performed, it could not be rescinded based on unfulfilled promises that were collateral to the contract); see also Kent v. Water Com'rs of Barnstable Fire Dist., 339 Mass. 160, 158 N.E.2d 140 (1959) (holding the defendant to the terms of his contract where the other party had fully performed its obligations under it).
11

10

of participation in a diversion program will not serve to effect a retroactive renunciation and abrogation of such an agreement.12 Pretrial diversion is not, strictly speaking, a sentencing scheme but rather a means of avoiding sentencing, and thus a criminal record, altogether. As such, it is normally the first type of resolution sought by defense counsel in a criminal case where the State is going to file an Information, or has already done so, against a defendant who has committed a relatively minor criminal offense. There are two types of pretrial diversion programs available to adults who have been charged with a felony or felonies: general pretrial diversion and drug offender pretrial diversion. Other statutory programs include the bad check intervention program pursuant to section 832.08 and the misdemeanor pretrial diversion program pursuant to section 948.16. There is presently a conflict between the Third and Fourth District Courts of Appeal as to whether a defendant is entitled to an evidentiary hearing following the States unilateral termination of a PTI agreement. The Third District Court of Appeal has held that a defendant is entitled to such a hearing, though the Third District has not stated what the burden of proof is supposed to be and none is referenced in the statute authorizing PTI.13 The Fourth District has held that it could find no basis in the statutory scheme authorizing PTI, to require that every time the State elects to terminate PTI and resume prosecution, the State has the burden of proof to prove, in an evidentiary hearing, that its reasons for electing to terminate PTI are valid.14 The Fourth District has noted in dicta, however, that a trial court may have authority, to insure fundamental fairness, to require the state to explain its decision to terminate PTI where a defendant states, under oath, that there has been no violation of PTI terms.15 1.3.1. General pretrial diversion General pretrial diversion is also known as the state attorneys pretrial intervention (PTI) program. Any first offender, or any person previously convicted of not more than one nonviolent misdemeanor, who is charged with any misdemeanor or felony of the third degree is eligible for release to the pretrial intervention program on the approval of the administrator of the program and the consent of the victim, the state attorney, and the judge who presided at the initial appearance hearing of the offender. The defendant may not be released to the pretrial intervention program unless, after consultation with his or her attorney, he or she has voluntarily agreed to such program and has knowingly and intelligently waived his or her right to a speedy trial for the period of his or

See, State v. Dempsey, 916 So. 2d 856 (Fla. 2d DCA 2005) (fact that defendants participation in PTI program could prevent her from obtaining employment as teacher was not mutual mistake of material fact). State v. Gorayeb, 510 So. 2d 1168 (Fla. 3d DCA 1987) (reversing for hearing to determine whether defendant breached PTI agreement).
14 13

12

Batista v. State, 951 So. 2d 1008 (Fla. 4th DCA 2007). Batista v. State, 951 So. 2d 1008 (Fla. 4th DCA 2007).

15

her diversion. The defendant or the defendants immediate family may not personally contact the victim or the victim's immediate family to acquire the victims consent under this section.16 The consent of the state attorney is a prerequisite for admission into the general PTI program. A court may not of its own volition place someone in the general pretrial intervention program. The consent of the state attorney is required.17 Nor may a court dismiss a charge that is not eligible for dismissal through the general PTI program.18 A PTI agreement is a contract under Florida law.19 A valid PTI agreement is a condition precedent to dismissal of a cause under the program and, as such, the lack of a valid agreement will preclude dismissal of charges. As an example, a PTI agreement procured through misrepresentation to, or fraud upon, the state attorney is voidable by the State. Similarly, mutual mistake may entitle the State to reformation or recission of the agreement.20 The criminal charges against an offender admitted to the program are continued without final disposition for a period of 90 days after the date the offender was released to the program, if the offenders participation in the program is satisfactory, and for an additional 90 days upon the request of the program administrator and consent of the state attorney, if the offenders participation in the program is satisfactory.21 The law provides that resumption of pending criminal proceedings shall be undertaken at any time if the program administrator or state attorney finds that the offender is not fulfilling his or her obligations under this plan or if the public interest so requires. The court may not appoint the public defender to represent an indigent offender released to the pretrial intervention

16

948.08(2), Fla. Stat.

State v. Pugh, 42 So. 3d 343 (Fla. 5th DCA 2010); State v. Gullett, 652 So. 2d 1265 (Fla. 4th DCA 1995); State v. Winton, 522 So. 2d 463 (Fla. 3d DCA 1988). State v. Green, 527 So. 2d 941 (Fla. 2d DCA 1988) (trial court exceeded its authority when it allowed defendant to complete PTI program after termination by state attorney and when it dismissed second-degree felony that was not part of the PTI agreement along with third-degree felony that was). See, Flaherty v. State, 367 So. 2d 1111 (Fla. 3d DCA 1979) (referring to the agreement as a bargain with the State of Florida). In one Pinellas County case, Stewart v. State, CRC9905458CFANOK, the defendant was charged with Resisting Arrest With Violence and Driving Under the Influence. The state attorney agreed to pretrial intervention for the resisting charge, but not for the DUI charge. When the PTI paperwork for the resisting charge was sent to the Department of Corrections, an official there acting without the knowledge or authority of the state attorney added the case number for the DUI on the forms for the resisting charge and, through a series of oversights, the DUI charge was inadvertently dismissed along with the resisting charge after the defendant had completed the PTI program. The state attorney, arguing contract law and specifically that there was no meeting of the minds as to PTI for the dismissal of the DUI charge, was able to successfully move after the fact to have that part of the dismissal order dealing with the DUI vacated and that offense re-established on the courts docket.
21 20 19 18

17

948.08(3), Fla. Stat.

program unless the offenders release is revoked and the offender is subject to imprisonment if convicted.22 At the end of the intervention period, the administrator is required to recommend either that: (a) the case revert to normal channels for prosecution where the offenders participation in the program has been unsatisfactory; (b) the offender is in need of further supervision; or (c) the charge or charges be dismissed without prejudice in instances in which prosecution is not deemed necessary. The state attorney makes the final determination as to whether the prosecution shall continue.23 1.3.2. Drug offender pretrial intervention Defendants charged with nonviolent felonies may be eligible for drug offender pretrial intervention under certain circumstances pursuant to section 948.08. For purposes of that section, the term nonviolent felony means a third-degree felony violation of chapter 810 or any other felony offense that is not a forcible felony as defined in section 776.08. Notwithstanding any provision of section 948.08, a person who is charged with a nonviolent felony and is identified as having a substance abuse problem or is charged with a felony of the second or third degree for purchase or possession of a controlled substance under chapter 893, prostitution, tampering with evidence, solicitation for purchase of a controlled substance, or obtaining a prescription by fraud; who has not been charged with a crime involving violence, including, but not limited to, murder, sexual battery, robbery, carjacking, home-invasion robbery, or any other crime involving violence; and who has not previously been convicted of a felony is eligible for voluntary admission into a pretrial substance abuse education and treatment intervention program, including a treatment-based drug court program established pursuant to section 397.334, approved by the chief judge of the circuit, for a period of not less than one year in duration, upon motion of either party or the courts own motion,24 except: 1. If a defendant was previously offered admission to a pretrial substance abuse education and treatment intervention program at any time prior to trial and the defendant rejected that offer on the record, then the court or the state attorney may deny the defendants admission to such a program; and 2. If the state attorney believes that the facts and circumstances of the case suggest the defendants involvement in the dealing and selling of controlled substances, the court must hold a preadmission hearing. If the state attorney establishes, by a preponderance of the evidence at such hearing, that the defendant was involved in the dealing or selling of controlled substances, the court must deny the defendants admission into a pretrial intervention program.25
22

948.08(4), Fla. Stat. 948.08(5), Fla. Stat. 948.08(6)(a), Fla. Stat. 948.08(6)(a), Fla. Stat.

23

24

25

At the end of the pretrial intervention period, the court considers the recommendations of the administrator as to whether or not the defendant should be continued or terminated from the program and of the state attorney as to disposition of the pending charges. The court then determines, by written finding, whether the defendant has successfully completed the pretrial intervention program.26 If the court finds that the defendant has not successfully completed the pretrial intervention program, the court may order the person to continue in education and treatment or order that the charges revert to normal channels for prosecution. The statute provides that the court shall dismiss the charges upon a finding that the defendant has successfully completed the pretrial intervention program.27 Sec. 948.08(6) provides two alternatives when the defendant fails to successfully complete the pretrial intervention program. The court may either continue the defendant in education or treatment or revert the case for criminal prosecution. Where the administrative order setting up the program mandates that the program be voluntary, the defendant may elect to leave the program and face resumed prosecution in lieu of any court-imposed sanctions for failing to complete the program.28 Under the statutory scheme of section 948.08, Fla. Stat., once a defendant has been admitted to pretrial intervention, the decision to resume prosecution of the charges is solely up to the prosecutor;29 additionally, decisions concerning pretrial diversion programs is purely prosecutorial and not subject to judicial review.30 The drug pretrial intervention program of section 948.08(6)(a) and (b), however, is distinguished from the general pretrial intervention program, which explicitly conditions eligibility on the States consent and provides that the State must ultimately determine whether to dismiss the charges or continue prosecution in that the decision to place a defendant in a pretrial substance abuse education and treatment intervention program does not rest solely with the prosecutor: If a defendant meets the statutory requirements, he or she may be admitted to the program upon motion of the defendant or the court.31 1.3.3. Bad check pretrial intervention program Another program under the control of the state attorney is the state attorney bad check diversion program, which is normally available to first-time bad check offenders at the misdemeanor and felony levels. The state attorney may establish such a program, either within the state attorneys
26

948.08(6)(b), Fla. Stat. 948.08(6)(c), Fla. Stat. Mullin v. Jenne, 890 So. 2d 543 (Fla. 4th DCA 2005). Fieler v. State, 386 So. 2d 1310 (Fla. 3d DCA 1980). State v. Board, 565 So. 2d 880 (Fla. 5th DCA 1990). 948.08, Fla. Stat.; King v. Nelson, 746 So. 2d 1217 (Fla. 5th DCA 1999).

27

28

29

30

31

office or through an independent contractor, for the purpose of diverting from prosecution certain persons accused of a violation of section 832.04, section 832.041, section 832.05, or section 832.06. The use of such a diversion program does not, however, affect the authority of the state attorney to prosecute any person for any such violation.32 Upon receipt of a complaint alleging any such violation, the state attorney determines if the case is appropriate for referral to the bad check diversion program by considering: (1) the amount of the bad check; (2) the prior criminal record of the defendant; (3) whether or not there are other bad check complaints currently pending against the defendant; and (4) the strength of the evidence of intent to defraud the victim.33 Upon referral of a complaint to the bad check diversion program, the state attorney forwards a notice of the complaint by mail to the defendant. The notice contains all of the following information: (1) the date and amount of the check; (2) the name of the payee; (3) the date before which the defendant must contact the bad check office concerning the complaint; and (4) a statement of the penalty for issuance of a bad check.34 If the state attorney allows the defendant to enter into a diversion program, the state attorney enters into a written agreement with the defendant to divert him or her on bad check charges. The diversion agreement includes all of the following conditions, which must be accepted by the defendant: 1) Attendance at a program designed to assist and educate persons who have violated the provisions of chapter 832. Full restitution on the check. Full payment of fees due under section 832.08(5). Any individual who does not fulfill the agreements for diversion could then be prosecuted under the appropriate section. A knowing and intelligent waiver of the defendant's right to a speedy trial for the period of his or her diversion.35

2) 3) 4)

5)

To fund the diversion program, the state attorney may collect a fee on each check that is collected through the state attorneys office, whether it is collected through prosecution or through the diversion program. However, the state attorney may not collect such a fee on any check collected through a diversion program which was in existence in another office prior to October 1, 1986. A fee may be collected by an office operating such a preexisting diversion program for the purpose of
32

832.08(1), Fla. Stat. 832.08(2), Fla. Stat. 832.08(3), Fla. Stat. 832.08(4), Fla. Stat.

33

34

35

funding such program. The amount of the fee for each check cannot exceed: (1) $25, if the face value does not exceed $50; (2) $30, if the face value is more than $50 but does not exceed $300; and (3) $40, if the face value is more than $300.36 1.3.4. Misdemeanor drug pretrial diversion Defendants charged with a misdemeanor-level drug crimes may be eligible, under certain circumstances, for pretrial diversion in lieu of prosecution pursuant to section 948.16, Fla. Stat., before or after the filing of an information or the return of an indictment against the defendant. A defendant who is charged with a nonviolent, nontraffic-related misdemeanor and identified as having a substance abuse problem or who is charged with a misdemeanor for possession of a controlled substance or drug paraphernalia under chapter 893, prostitution under section 796.07, possession of alcohol while under 21 years of age under section 562.111, or possession of a controlled substance without a valid prescription under section 400.03, and who has not previously been convicted of a felony, is eligible for admission into a misdemeanor pretrial substance abuse education and treatment intervention program approved by the chief judge of the circuit, for a period based on the program requirements and the treatment plan for the defendant, upon motion of either party or the courts own motion, except, if the State Attorney believes the facts and circumstances of the case suggest the defendant is involved in dealing and selling controlled substances, the court shall hold a preadmission hearing. If the state attorney establishes, by a preponderance of the evidence at such hearing, that the defendant was involved in dealing or selling controlled substances, the court shall deny the defendants admission into the pretrial intervention program.37 At the end of the pretrial intervention period, the court is required to consider the recommendation of the treatment program and the recommendation of the state attorney as to disposition of the pending charges. The court is further required to determine, by written finding, whether the defendant successfully completed the pretrial intervention program. If the court finds that the defendant has not successfully completed the pretrial intervention program, the court may order the person to continue in education and treatment or return the charges to the criminal docket for prosecution.38 The court is required to dismiss the charges upon finding that the defendant has successfully completed the pretrial intervention program.39 1.4. Post-adjudicatory drug treatment Under certain circumstances and subject to available funding, the sentencing court has the authority to divert a defendant into a supervisory sentence in lieu of a presumptive sentence of
36

832.08(5), Fla. Stat. 948.16(1), Fla. Stat. 948.16(2)(a), Fla. Stat. 948.16(2)(b), Fla. Stat.

37

38

39

10

imprisonment under the Criminal Punishment Code in order to mandate drug treatment for that defendant. There are four avenues by which the court may order a probationer to complete a drug treatment program: (1) as a special condition of probation, (2) as part of a prison diversion sentence, (3) as a condition of drug offender probation under section 948.20, Fla. Stat. or (4) as part of a treatment based drug court program under section 397.334. 1.5. Prison diversion Notwithstanding section 921.0024 and effective for offenses committed on or after July 1, 2009, a court may divert from the state correctional system a defendant who would otherwise be sentenced to a state facility by sentencing the defendant to a nonstate prison sanction as provided in subsection 921.00241(2).40 A defendant may be sentenced to a nonstate prison sanction if the offender meets all of the following criteria: (a) the defendants primary offense is a felony of the third degree;41 (b) the defendants total sentence points score, as provided in section 921.0024, is not more than 48 points, or the defendants total sentence points score is 54 points and six of those points are for a violation of probation, community control, or other community supervision, and do not involve a new violation of law;42 (c) the defendant has not been convicted or previously convicted of a forcible felony as defined in section 776.08, but excluding any third-degree felony violation under chapter 810;43 and (d) the defendants primary offense does not require a minimum mandatory sentence.44 If the court elects to impose a sentence as provided in section 921.00241, the court must sentence the offender to a term of probation, community control, or community supervision with mandatory participation in a prison diversion program of the Department of Corrections if such program is funded and exists in the judicial circuit in which the defendant is sentenced. The prison diversion program must be designed to meet the unique needs of each judicial circuit and of the offender population of that circuit. The program may require residential, nonresidential, or day reporting requirements, substance abuse treatment, employment, restitution, academic or vocational opportunities, or community service work.45 The court that sentences a defendant to a nonstate prison sanction pursuant to subsection 921.00241(2) must make written findings that the defendant meets the criteria in subsection 921.00241(1) and the sentencing order must indicate that the defendant was sentenced to the prison
40

921.00241(1), Fla. Stat. 921.00241(1)(a), Fla. Stat. 921.00241(1)(b), Fla. Stat. 921.00241(1)(c), Fla. Stat. 921.00241(1)(d), Fla. Stat.; Fla. R. Crim. P. 3.704(d)(28). 921.00241(2), Fla. Stat.

41

42

43

44

45

11

diversion program pursuant to subsection 921.00241(2). The court may order the defendant to pay all or a portion of the costs related to the prison diversion program if the court determines that the defendant has the ability to pay.46 The wording of section 921.00241(1)(b) has been a source of confusion for some prosecutors and judges, as regards whether the last words in that subsection, and do not involve a new violation of law, apply to the entire subsection thereby limiting application of the law to violations of supervision and precluding prison diversion from all cases involving a new law violation or whether their application is limited to that portion of the subsection appearing after the first or pertaining to the situation in which the defendant has a total sentence points score of 54 points and six of those points are for a violation of probation, community control, or other community supervision. In response to such confusion, it should be pointed out that the Florida Legislature placed the statute in Chapter 921, pertaining to sentencing in general, and not in Chapter 948, pertaining to probation and community control. All three of the legislative staff analyses of C.S.S.B. No. 1722, which was signed into law by the Governor on May 27, 2009 as Chapter 2009-63, Laws of Florida, describe eligibility for the prison diversion program as requiring either a total sentence points score of 48 points or a total sentence points score of 54 points of which six are for a violation of supervision that does not involve a new law violation.47 The statute is thus of general application in sentencing cases and is not limited to violations of probation that do not involve new law violations. While a section 921.00241 sentence is not classified as a downward departure, the net effect is the same. 1.6. Drug offender probation Drug offender probation, is a form of intensive supervision which emphasizes treatment of drug offenders in accordance with individualized treatment plans administered by officers with restricted caseloads.48 It is for chronic substance abusers who commit non-violent drug crimes and is an alternative sentencing scheme independent of the Criminal Punishment Code49 and is generally the sentencing scheme of choice for defense counsel seeking to avoid prison for clients with significant drug problems.

46

921.00241(3), Fla. Stat.

See, PCS/SB 1722 Florida Senate Criminal and Civil Justice Appropriations Committee Bill Analysis and Fiscal Impact Statement, March 27, 2009; PCS/SB 1722 Florida Senate Criminal and Civil Justice Appropriations Committee Bill Analysis and Fiscal Impact Statement, April 1, 2009; PCS/SB 1722 Florida Senate Policy and Steering Committee on Ways and Means Bill Analysis and Fiscal Impact Statement, April 6, 2009.
48

47

948.001(6), Fla. Stat. See, Jones v. State, 813 So. 2d 22 (Fla. 2002).

49

12

 1.7. Drug court Notwithstanding section 921.0024 and effective for offenses committed on or after July 1, 2009, the sentencing court may place the defendant into a postadjudicatory treatment based drug court program if the defendants Criminal Punishment Code scoresheet total sentence points under section 921.0024 are 60 points or fewer, the offense is a nonviolent felony, the defendant is amenable to substance abuse treatment, and the defendant otherwise qualifies under section 397.334(3). The satisfactory completion of the program must be a condition of the defendants probation or community control. As used in section 948.01(6), the term nonviolent felony means a third-degree felony violation under chapter 810 or any other felony offense that is not a forcible felony as defined in section 776.08.50 The defendant must be fully advised of the purpose of the program and the defendant must agree to enter the program. The original sentencing court must relinquish jurisdiction of the defendants case to the postadjudicatory drug court program until the defendant is no longer active in the program, the case is returned to the sentencing court due to the defendant's termination from the program for failure to comply with the terms thereof, or the defendants sentence is completed.51 1.8. Sentencing back as a juvenile In some situations, defendants who committed crimes as juveniles (i.e., while under the age of 18 years) are placed under the jurisdiction of adult court, where they may be sentenced as adults. There are, however, alternatives for juveniles sentenced as adults, as set forth in section 985.565(4), Fla. Stat. This statute provides that a child who is found to have committed a violation of law may, as an alternative to adult dispositions, be committed to the Department of Juvenile Justice (DJJ) for treatment in an appropriate program for children outside the adult correctional system or be placed on juvenile probation. If the child is found to have committed the offense punishable by death or life imprisonment, the law provides that the child shall be sentenced as an adult. If the child is not found to have committed the indictable offense but is found to have committed a lesser included offense or any other offense for which he or she was indicted as a part of the criminal episode, the court may sentence as follows: a. As an adult; b. Pursuant to chapter 958, Fla. Stat. (Youthful Offender); or c. As a juvenile pursuant to chapter 985, Fla. Stat.

50

948.01(7)(a), Fla. Stat. 948.01(7)(b), Fla. Stat.

51

13

The same options are available to the court where a child who has been transferred for criminal prosecution pursuant to information or waiver of juvenile court jurisdiction is found to have committed a violation of state law or a lesser included offense for which he or she was charged as a part of the criminal episode. Notwithstanding any other provision to the contrary, if the state attorney is required to file a motion to transfer and certify the juvenile for prosecution as an adult pursuant to section 985.556(3) and that motion is granted, or if the state attorney is required to file an information pursuant to section 985.557(2)(a) or (b), the court must impose adult sanctions. Any sentence imposing adult sanctions is presumed appropriate, and the court is not required to set forth specific findings or enumerate the criteria in this subsection as any basis for its decision to impose adult sanctions. For juveniles transferred to adult court but who do not qualify for such transfer pursuant to section 985.556(3) or section 985.557(2)(a) or (b), the court may impose juvenile sanctions. If juvenile sanctions are imposed, the court shall adjudge the child to have committed a delinquent act. Adjudication of delinquency is not be deemed a conviction, nor does it operate to impose any of the civil disabilities ordinarily resulting from a conviction. The court has to impose either an adult sanction or a juvenile sanction and may not sentence the child to a combination of adult and juvenile punishments. An adult sanction or a juvenile sanction may include enforcement of an order of restitution or probation previously ordered in any juvenile proceeding. However, if the court imposes a juvenile sanction and DJJ determines that the sanction is unsuitable for the child, DJJ is required to return custody of the child to the sentencing court for further proceedings, including the imposition of adult sanctions. Upon adjudicating a child delinquent under this provision of the law, the court may: 1) Place the child in a probation program under the supervision of DJJ for an indeterminate period of time until the child reaches the age of 19 years or sooner if discharged by order of the court. Commit the child to DJJ for treatment in an appropriate program for children for an indeterminate period of time until the child is 21 or sooner if discharged by DJJ. Order disposition under sections 985.435, 985.437, 985.439, 985.441, 985.445, 985.45, and 985.455 as an alternative to youthful offender or adult sentencing if the court determines not to impose youthful offender or adult sanctions.

2)

3)

Sentencing back to juvenile court is not, however, a guarantee that the juvenile will remain under the juvenile court's jurisdiction. If a child proves not to be suitable to a commitment program, in a juvenile probation program, or treatment program, DJJ has to provide the sentencing court with a written report outlining the basis for its objections to the juvenile sanction and shall simultaneously provide a copy of the report to the state attorney and the defense counsel. DJJ is required to schedule a hearing within 30 days. Upon hearing, the court may revoke the previous adjudication, impose an 14

adjudication of guilt, and impose any sentence which it may lawfully impose, giving credit for all time spent by the child in DJJ. The court may also classify the child as a youthful offender pursuant to section 958.04, if appropriate. A child may be found not suitable to a juvenile commitment program, community control program, or treatment program if the child commits a new violation of law while under juvenile sanctions, if the child commits any other violation of the conditions of juvenile sanctions, or if the childs actions are otherwise determined by the court to demonstrate a failure of juvenile sanctions. This means that, even where a juvenile defendant has been sentenced back for juvenile sanctions, violations of those sanctions can result in the return of the juvenile to adult court for the imposition of any sentence that could be imposed on an adult in the same circumstances. 1.9. Downward departure from the presumptive minimum calculated sentence At a minimum, the trial court must impose the lowest permissible sentence calculated according to the applicable guidelines or the Criminal Punishment Code unless the court finds that the evidence supports a valid reason for a downward departure.52 Any downward departure from the lowest permissible sentence, as calculated according to the total sentence points under section 921.0024, Fla. Stat., is prohibited unless there are circumstances or factors that reasonably justify the downward departure.53 Judicial leniency, in terms of reliance on mitigating factors to reduce a Criminal Punishment Code or guidelines sentence, only functions within prescribed parameters of the sentencing laws and the rules adopted to implement them. These laws and rules clearly provide that downward departure is prohibited unless there are circumstances or factors that reasonably justify the downward departure.54 The plenary power of the legislature to prescribe punishment for criminal offenses cannot be abrogated by the courts in the guise of fashioning an equitable sentence outside the statutory provisions.55 In any event, sentencing alternatives should not be used to thwart the guidelines or Criminal Punishment Code.56 Nonetheless, one of the most practiced ways to mitigate a defendant's sentence, where no other alternatives are available, is through a downward departure from the Criminal Punishment Code sentencing floor. It is, in fact the practice of some defense counsel to seek a departure
52

See, e.g., 921.002(1)(f) and (3), Fla. Stat.; State v. Henderson, 766 So. 2d 389 (Fla. 2d DCA 2000). Fla. R. Crim. P. 3.704(d)(27).

53

State v. Mann, 866 So. 2d 179 (Fla. 5th DCA 2004) (record did not support downward departure based on finding that offense was isolated incident and committed in unsophisticated manner given fact that defendant was 39year-old police sex crimes investigator at time he entered into ongoing sexual relationship with 14year-old girl.). McKendry v. State, 641 So. 2d 45 (Fla. 1994); State v. Coban, 520 So. 2d 40 (Fla. 1988) (error for trial judge to waive 25year minimum mandatory sentence for first-degree murder).
56 55

54

See, Disbrow v. State, 642 So. 2d 740 (Fla. 1994).

15

hearing before a defendant enters a plea to test the court for leniency, although some courts will not entertain such a hearing until the defendant has pled. Pre-plea departure hearings comprise an unauthorized blending of plea discussion and agreement with the conduct of a sentencing hearing, and the creation of a legal fiction that an offense is not before the court for sentencing, so as to evade the requirements of the Florida Rules of Criminal Procedure and statutory law. Such hearings are a means for the defendant to get a commitment from the presiding judge as to whether and how much of a downward departure sentence he or she will impose if and when the defendant decides to plea without making any commitment in return. Typically, these hearings are used by the defendant to put on evidence in mitigation without the defendant accepting any responsibility for having committed any wrongful act, which is a contradiction the Rules of Criminal Procedure are designed to prevent. This technique also places a legally unrecognizable burden on the prosecutor and any victim or victims involved to overcome such mitigation and persuade the judge not to depart downward in the event that the defendant does decide to enter a plea. Under the former guidelines, where upward departure was a possibility, the prosecutor would often try to blunt the defense request for downward departure by putting on evidence in aggravation and requesting an upward departure during the same hearing. Additionally, the conduct of a pre-plea departure hearing tends to invert and short-circuit the trial process by substituting the defendants case for leniency for the prosecutors presentation of all relevant evidence of guilt before a jury in a trial. Such a procedure is also contrary to principles of judicial economy and entails the potential for otherwise unnecessary and avoidable recusal consequences. The jurisdiction of circuit courts is defined by section 26.012, Fla. Stat.; that of the county courts by section 34.01, Fla. Stat. Plea discussion and agreement is governed by Fla. R. Crim. P. 3.171; the conduct of a sentencing hearing is governed by Fla. R. Crim. P. 3.720 and is predicated upon a finding of guilt after plea or jury verdict. While the trial court may participate in plea discussions upon request of a party and once involved, the court may actively discuss potential sentences and comment on proposed plea agreements, so long as the court acts to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter,57 nothing in the plain language of the applicable statutes or rules authorizes either the prosecution or the defense to request, or the presiding judge to issue, non-binding advisory opinions as are sought in such pre-plea departure sentencing hearings. A trial judge does not, therefore, have discretion to conduct a sentencing departure hearing prior to the entry of a plea or a conviction by jury. Regardless, absent explicit statutory authority, downward departure from statutorily-imposed non-guidelines or non-Criminal Punishment Code minimum mandatory sentencing is prohibited.58 A judges decision not to depart is non-reviewable, as the statutory scheme of the Criminal
57

Wilson v. State, 845 So. 2d 142 (Fla. 2003).

See, State v. Crews, 884 So. 2d 1139 (Fla. 2d DCA 2004) (delivery of cocaine within 1,000 feet of a school); State v. Andrews, 875 So. 2d 686 (Fla. 4th DCA 2004) (aggravated assault on a law enforcement officer); Kelley v. State, 821 So. 2d 1255 (Fla. 4th DCA 2002) (trafficking in cocaine).

58

16

Punishment Code does not give an appellate court the authority to review a trial courts discretionary decision to deny a request for a downward departure.59 1.9.1. Burden, level and sufficiency of proof in departure sentencing The defendant has the burden of proving the basis for a departure sentence by a preponderance of the evidence, and the evidence must be competent and substantial.60 A preponderance of the evidence is evidence which as a whole shows that the fact sought to be proved is more probable than not.61 Substantial evidence is evidence which a reasoning mind would accept as sufficient to support a particular conclusion.62 Section 921.002(1)(f), Fla. Stat., provides that The level of proof necessary to establish facts that support a departure from the lowest permissible sentence [under the Criminal Punishment Code] is a preponderance of the evidence. Of course, where no evidence is submitted to support the departure sentence, the statutory standard is not met.63 Defense counsels unsworn statements of fact cannot serve as evidence to substantiate a downward departure sentence; if an attorney wishes to establish a fact, he or she must provide sworn testimony through competent witnesses other than himself or herself or a stipulation to which his or her opponent agrees.64 Where a defendant presents no evidence in support of a downward departure,

59

Stancliff v. State, 996 So. 2d 259 (Fla. 1st DCA 2008).

See, State v. Bell, 854 So. 2d 686 (Fla. 5th DCA 2003); State v. Silver, 723 So. 2d 381 (Fla. 4th DCA 1998). Note that other states have a more stringent standard for departures. In Michigan, for example, a court may depart from the appropriate sentence range established under that state's guidelines if the court has a substantial and compelling reason for that departure and states on the record the reasons for the departure. M.C.L. 769.34(3). A substantial and compelling reason has been interpreted by that state's supreme court to mean an objective and verifiable reason that keenly or irresistibly grabs our attention; is of considerable worth in deciding the length of a sentence; and exists only in exceptional cases. People v. Babcock, 469 Mich. 247, 666 N.W.2d 231, 258 (2003).
61

60

State v. Edwards, 536 So. 2d 288, 292 n.3 (Fla. 1st DCA 1988). State v. Morales, 460 So. 2d 410 (Fla. 2d DCA 1984).

62

See, State v. Scott, 879 So. 2d 99 (Fla. 2d DCA 2004) (where no evidence is presented to support downward departure based on restitution need on a worthless check case, the departure is reversed); State v. Amodeo, 750 So. 2d 664, 666 (Fla. 5th DCA 1999) (holding that record utterly failed to support the reasons given for the departure sentence where no testimony was given under oath by anyone); State v. Bleckinger, 746 So. 2d 553, 556 (Fla. 5th DCA 1999) (holding that since no evidence was adduced at the sentencing hearing the court could not find that cooperation by the defendant warranted a downward departure); see also, State v. Braley, 832 So. 2d 255, 256 (Fla. 2d DCA 2002); State v. Petringelo, 762 So. 2d 965, 966 (Fla. 2d DCA 2000); State v. Owens, 848 So. 2d 1199, 1202 (Fla. 1st DCA 2003); State v. Quintanal, 791 So. 2d 23, 24 (Fla. 3d DCA 2001); State v. Schillaci, 767 So. 2d 598, 600 (Fla. 4th DCA 2000); State v. Silver, 723 So. 2d 381 (Fla. 4th DCA 1998). State v. Champion, 898 So. 2d 1111 (Fla. 2d DCA 2005) (unsworn statements of counsel cannot support a downward departure sentence); State v. Bleckinger, 746 So. 2d 553, 55556 (Fla. 5th DCA 1999) (same).
64

63

17

he or she fails to carry his or her burden, notwithstanding any unsworn statements made by defense counsel.65 1.9.2. Defense obligations in departure sentencing First and foremost, a defense attorney has an obligation to investigate and present available mitigating evidence at sentencing.66 Where the defendant who has previously elected to participate in reciprocal discovery is seeking a departure, Rule 3.220(d)(1)(A) applies and obligates the defendant to provide the State on a timely basis with: (1) a written list of the names and addresses of all persons whom the defendant expects to call at any hearing on said motion for departure sentencing; (2) the statement of any witness whose name is furnished in compliance with the discovery rule, other than the defendant; (3) reports or statements of experts made in connection with or relevant to departure sentencing in the case for which departure is sought, including results of physical or mental examinations and of scientific tests, experiments, or comparisons which the defendant intends to use at the departure hearing; and (4) any tangible objects that the defendant intends to use in at the departure hearing.67 Consistent with the notion that a dispositive order entered without affording the State proper notice and opportunity to be heard, a necessary corollary to the discovery rule is that the defendant provide the State with some statement as to the particular ground or grounds of the departure sentence sought by the defendant, in that the contents of a motion must be sufficient to put the other party on notice as to the specific relief sought from the court.68 When the defense obtains appointment of an expert to evaluate the defendant in an attempt to obtain mental condition evidence going to a sentencing mitigator, the provisions of Florida Rule of Criminal Procedure 3.216(f) apply, even though the appointment and evaluation are obtained post-plea or post-sentencing. Pursuant to Rule 3.216(f), if the notice to rely on any mental health defense other than insanity indicates the defendant will rely on the testimony of an expert who has examined the defendant, the court must, upon motion of the state, order the defendant be examined by one qualified expert for the state as to the mental health defense raised by the defendant. Upon a showing of good cause, the court may order additional examinations upon motion by the state or the defendant. Attorneys for the state and defendant may be present at the examination. When the defendant relies on the testimony of an expert who has not examined the defendant, the state is not

65

State v. Arvinger, 751 So. 2d 74 (Fla. 5th DCA 1999); State v. Silver, 723 So. 2d 381 (Fla. 4th DCA

1998). See, e.g., Rose v. State, 675 So. 2d 567 (Fla. 1996) (an attorney has a duty to conduct a reasonable investigation for possible mitigating evidence). See, State v. Clark, 644 So. 2d 556 (Fla. 2d DCA 1994) (defendants discovery obligations under Rule 3.220 apply to sentencing). See, Metropolitan Dade County v. Curry, 632 So. 2d 667 (Fla. 3d DCA 1994) (an order entered without notice or opportunity to be heard is a void order and may be attacked at any time).
68 67 66

18

be entitled to a compulsory examination of the defendant.69 Thus, if the defendant intends to use expert testimony to obtain a sentence less than the Criminal Punishment Code minimum presumptive sentence, the defendant must give notice to the State and allow an opportunity for the State to depose the expert and obtain rebuttal evidence.70 When the defendant lists as a potential witness a person with whom the defendant has a privileged relationship (e.g., the defendants spouse, psychologist, physician, priest or spouse) or a relationship which is otherwise encompassed within the defendants attorney-client relationship, the State cannot ordinarily take pre-hearing discovery of that witness as to privileged matters absent a waiver of privilege. The mere relevance of the information is not sufficient grounds for the State to be allowed to override the privilege involved.71 Simply listing a witness or providing the State with a written report prepared by the witness is also not sufficient to waive the privilege, although the privilege is waived at the point where the defendant actually calls the witness to the stand to testify.72 When, however, the defendant asserts a claim based upon a matter ordinarily privileged, the proof of which will necessarily require that the privileged matter be offered into evidence, the defendant loses his or her right to insist, in pretrial discovery proceedings, that the matter is privileged.73 This is known as the sword and shield doctrine and means that, where the defendant so uses the shield of privilege as a sword to thwart the States right to discovery, the State may file an appropriate motion to exclude the testimony of such witnesses at any sentencing hearing on the basis of actual prejudice arising from surprise in fact or unfair advantage.74 A motion for departure should also be in writing. Fla. R. Crim. P. 3.060 requires that a copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing thereof, shall be served on the adverse party a reasonable time before the time specified for the hearing. Reasonable notice is such notice or information of a fact as may fairly and properly be expected or required in the particular circumstances.75 While there are no hard and fast rules about how many days constitute a reasonable time, the party served with notice must have actual notice

69

Fla. R. Crim. P. 3.216(f). State v. Massingill, 77 So. 3d 677 (Fla. 3d DCA 2011). See, Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So. 2d 1021 (Fla. 4th DCA 1998). See, Sagar v. State, 727 So. 2d 1118 (Fla. 5th DCA 1999); Ursry v. State, 428 So. 2d 713 (Fla. 4th DCA

70

71

72

1983).
73

See, Savino v. Luciano, 92 So. 2d 817 (Fla. 1957). See, Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981).

74

Sterling Mfg. Co. v. Hough, 49 Neb. 618, 68 N.W. 1019 (1896); Mallory v. Leiby, 1 Kan. 97, 1862 WL 403 (1862) at 102.

75

19

and time to analyze the arguments of the movant, prepare counterargument, and assemble necessary witnesses and evidence. Lack of reasonable notice is a denial of due process.76 The motion also has to be legally sufficient. Fla. R. Crim. P. 3.190(h)(3) states that, Before hearing evidence, the court shall determine if the motion is legally sufficient. If it is not, the motion shall be denied. 1.9.3. Procedures to be followed by the judge in departure sentencing A trial courts decision whether to depart from the guidelines, or below the Criminal Punishment Code sentencing minimum, is a two-part process. First, it must determine whether a valid legal ground and factual support for that ground exist. Legal grounds are set forth in case law and statute, and facts supporting the ground must be proven at trial (or at a sentencing hearing based on a change of plea) by a preponderance of the evidence.77 If a sentencing judge imposes a sentence that is below the lowest permissible sentence under the Criminal Punishment Code, it is a departure sentence and must be accompanied by a written statement by the sentencing court delineating the reasons for the departure, filed within seven days of the date of sentencing. A written transcription of orally stated reasons for departure articulated at the time sentence was imposed is sufficient if it is filed by the court within seven days after the date of sentencing.78 The sentencing judge may also list the written reasons for departure in the space provided on the Criminal Punishment Code scoresheet.79 Similar provisions are found in the rules pertaining to the former guidelines.80 Note, however, that the sentence will be affirmed where the trial court orally pronounces a valid reason or reasons for departure at the time of sentencing but inadvertently fails to enter contemporaneous written reasons.81 A trial court is, however, without jurisdiction to file written reasons for departure once a notice of appeal has been filed from a properly rendered judgment.82

See, Harreld v. Harreld, 682 So. 2d 635 (Fla. 2d DCA 1996) (two working days' notice of contested final hearing in dissolution action is not notice reasonable time before the hearing where husband resides outside the state and is not represented by counsel); Russ v. State, 622 So. 2d 501 (Fla. 5th DCA 1993) (scheduling of contempt hearing less than two days after service of order to show cause violated criminal procedural rule requiring that reasonable time be allowed for preparation of defense); see, Sklandis v. Walgreen Co., 832 So. 2d 942 (Fla. 3d DCA 2002) (one day's notice for a non-emergency dispositive motion was unreasonably short); Montgomery v. Cribb, 484 So. 2d 73 (Fla. 2d DCA 1986) (two days notice for a hearing on a motion to strike a claim against an estate based upon a summary judgment was inadequate).
77

76

See, Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999). See, Pierre v. State, 971 So. 2d 825 (Fla. 3d DCA 2007). Fla. R. Crim. P. 3.704(d)(27)(a). See, Fla. R. Crim. P. 3.702(d)(18)(A) and 3.703(d)(30)(A). Pease v. State, 712 So. 2d 374 (Fla. 1997); Gibson v. State, 661 So. 2d 288 (Fla. 1995). Domberg v. State, 661 So. 2d 285 (Fla. 1995).

78

79

80

81

82

20

The trial courts decision regarding the first step will be affirmed on appeal if the reason given by the trial judge is valid and supported by competent, substantial evidence.83 If the trial court finds that the initial requirements for a downward departure are satisfied, the second step requires the court to exercise discretion as to whether departure is truly the best sentencing option for the defendant in the pending case. When a trial court determines whether it should depart downward from the presumptive minimum sentence prescribed by the Criminal Punishment Code, it must weigh the totality of factors, including aggravating factors.84 With respect to the second step, the trial court is afforded considerable discretion in making its decision and will be reversed only if the appellate court finds the trial court abused its discretion.85 When an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the applicable guidelines or Criminal Punishment Code.86 The Florida Supreme Court promulgated this rule out of concern that sentencing judges on remand would search for reasons to justify a departure sentence when the judges initial reasons for departure had been reversed by an appellate court.87 This rule does not apply, however, where the sentencing court unknowingly imposes a departure sentence, hence not submitting written reasons to justify the departure, and in those cases the court may impose a departure sentence provided that proper written findings are made.88 1.9.4. Statutory mitigating circumstances Statutory mitigating circumstances sufficient to justify departure are as set forth in section 921.0026, Fla. Stat., which applies to any felony offense, except any capital felony, and are as follows: 1.9.4.1. The departure results from a legitimate, uncoerced plea bargain89 A plea bargain for purposes of a departure sentence contemplates an agreement between the State and the defendant which is approved by the court, and not between the court and the defendant. When a plea agreement is between a defendant and the court without the State's

Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999); see also, State v. Clay, 780 So. 2d 269, 270 (Fla. 5th DCA 2001).
84

83

See, Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999). Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999). Pope v. State, 561 So. 2d 554 (Fla. 1990). See, Troutman v. State, 630 So. 2d 528, n.6 (Fla. 1993). See, Baker v. State, 852 So. 2d 441 (Fla. 5th DCA 2003). 921.0026(2)(a), Fla. Stat.

85

86

87

88

89

21

agreement, it is impermissible to then allow the court to use this statutory reason to justify a departure sentence.90 In Florida, entry of an open plea is not a valid reason for a departure sentence where there was no plea agreement entered into between the defendant and the State.91 Where the State makes an offer of a departure sentence but does not have an agreement with the defendant as to the length of sentence, the extent of the departure is within the sound discretion of the trial judge.92 The trial court does not have to follow through with the prosecutors recommendation as to the magnitude of the departure and may impose a more lenient sentence than recommended by the prosecutor.93 Once the decision as to the minimum sentence has been removed from the prosecutors sphere, continued control over the sentence would violate the Florida constitutions separation of powers. An example of the application of this rule is where the prosecutor files a motion pursuant to section 893.135(4), Fla. Stat., to reduce or suspend the sentence of a person convicted under that section and who provides substantial assistance in the identification, arrest, or conviction of any of that persons accomplices, accessories, coconspirators, or principals or of any other person engaged in trafficking in controlled substances: Once a motion for reduction of the minimum mandatory sentence has been filed under that section, the sentence is in the trial courts discretion.94 Where there is an agreement between the State and the defendant for a specific departure sentence, however, the sentencing court cannot impose a different departure sentence. A diversion from the agreement is not the result of a legitimate plea bargain and so cannot be supported by the record.95 The notion is that if the sentencing court unilaterally deviates from the agreement, there is no longer any agreement, and if there is no longer any agreement there is no longer a valid downward departure reason under section 921.0026(2)(a), Fla. Stat.96 Similarly, where an offer of

See, State v. Bell, 854 So. 2d 686 (Fla. 5th DCA 2003); State v. Beck, 763 So. 2d 506 (Fla. 4th DCA 2000); State v. Sawyer, 753 So. 2d 737 (Fla. 2d DCA 2000) (Although an uncoerced plea bargain is a valid reason to depart from the guidelines, the downward departure in this case cannot be upheld on this basis because the State did not join in the plea agreement.) (citing State v. Laperreri, 710 So. 2d 119 (Fla. 2d DCA 1998) (Because the State did not join in the plea agreement, there is no possibility that the sentence is a valid downward departure based on uncoerced plea agreement.); State v. Kennedy, 698 So. 2d 349 (Fla. 4th DCA 1997); State v. Smallwood, 664 So. 2d 309 (Fla. 5th DCA 1995); State v. McCarthy, 502 So. 2d 955 (Fla. 2d DCA 1987).
91

90

State v. Brannum, 876 So. 2d 724 (Fla. 5th DCA 2004).

State v. Aguilar, 775 So. 2d 994 (Fla. 3d DCA 2000) (where the State and the defendant agree that a departure from the sentencing guidelines is appropriate, the extent of the departure is within the sound discretion of the trial judge); see, State v. Nunez, 855 So. 2d 698 (Fla. 3d DCA 2003); State v. Leggett, 792 So. 2d 646 (Fla. 3d DCA 2001); State v. Andrews, 778 So. 2d 1100 (Fla. 3d DCA 2001).
93

92

State v. Cure, 760 So. 2d 243 (Fla. 3d DCA 2000); State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985).

Cherry v. State, 439 So. 2d 998 (Fla. 4th DCA 1983) (where State Attorney agrees to less than the minimum mandatory sentence under section 893.135, the sentence is in trial courts discretion).
95

94

State v. Hale, 682 So. 2d 613 (Fla. 2d DCA 1996). See, Dozier v. State, 881 So. 2d 662 (Fla. 3d DCA 2004) (Cope, J., concurring).

96

22

a downward departure from the State has been unequivocally revoked prior to acceptance, the court cannot use that offer as a basis for a downward departure sentence.97 Trial courts are, in any event, free to plea bargain with defendants as to possible sentencing on the charges filed by the State within certain limits for purposes other than departure under section 921.0026(2)(a), Fla. Stat.98 A plea agreement cannot, however, frustrate sentencing consistent with the Criminal Punishment Code or applicable guidelines, as a defendant cannot by agreement confer on the court the authority to impose an illegal sentence. If a departure is not supported by clear and convincing reasons, the mere fact that a defendant agrees to it does not make it a legal sentence.99 Note, also, that a defendant is not entitled to negotiate a plea for a departure sentence, accept the benefit of it, and then ask the trial court, or the appellate court, to set aside the sentence and grant him or her a better deal than the one agreed to by the State on the basis that the court should not have departed; in challenging his or her conviction under such circumstances, the defendant is not entitled to any sentence that the State did not agree to in the negotiations.100 1.9.4.2. The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct101 The court may consider the defendant's alleged personality trait of being more a follower than a leader, but this basis of departure is not available if the defendant was the principal perpetrator in the underlying crime.102

97

State v. Berry, 976 So. 2d 645 (Fla. 3d DCA 2008); State v. Watson, 971 So. 2d 946 (Fla. 3d DCA 2007). See, State v. Warner, 762 So. 2d 507 (Fla. 2000).

98

State v. McCarthy, 502 So. 2d 955 (Fla. 2d DCA 1987); see, Williams v. State, 500 So. 2d 501 (Fla. 1986); Henry v. State, 498 So. 2d 1006 (Fla. 2d DCA 1986).
100

99

Scott v. State, 465 So. 2d 1359 (Fla. 5th DCA 1985). 921.0026(2)(b), Fla. Stat.

101

See, State v. Woodson, 745 So. 2d 570 (Fla. 5th DCA 1999) (felon on probation when charged with burglary, grand theft and dealing in stolen property, and who admitted to being dealer in stolen property, is not minor participant; It was error to allow him to stay out of prison.); State v. Silver, 723 So. 2d 381 (Fla. 4th DCA 1998) (defendant who was a closer in a telemarketing scheme with significant involvement in the scheme, was not minor participant); State v. Licea, 707 So. 2d 1155 (Fla. 2d DCA 1998).

102

23

 1.9.4.3. The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired103 Emotional immaturity coupled with chronological young age is a sufficient basis to allow a sentencing judge to depart downwards.104 A substantial impairment of a defendants capacity to appreciate the criminal nature of his or her conduct or to conform that conduct to the requirements of law, although not reaching the level of insanity, can be a sufficient enough mitigator to support a downward departure.105 Historically, impairment due to addiction to drugs could not be used to support this basis of departure, because the legislature had eliminated substance abuse or addiction, including intoxication at the time of the offense, as a mitigating factor at sentencing. In 2009, however, the Florida Legislature created an exception for non-violent felony offenders in paragraph (2)(m) of 921.0026.106 1.9.4.4. The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment107 In order to avail himself or herself of this basis of departure, the defendant must establish, and the trial court must find, (1) the existence of a mental disorder, or physical disability, (2) the need for specialized treatment, and (3) that the defendant is amenable to treatment.108 Over the years, some appellate courts added a fourth requirement, namely that the mental disorder or physical disability requires treatment that is not available in the Department of Corrections,109 and requiring the defendant to establish by a preponderance of evidence that is both

103

921.0026(2)(c), Fla. Stat. See, State v. Gilson, 800 So. 2d 727 (Fla. 5th DCA 2001).

104

State v. Chapman, 805 So. 2d 906 (Fla. 2d DCA 2001) (court may not base a downward departure based upon the defendants intoxication at the time of the offense by finding he lacked the capacity to appreciate the criminal nature of the offense and that his conduct was substantially impaired); State v. Clark, 745 So. 2d 1116 (Fla. 4th DCA 1999). 921.0026(3), Fla. Stat.; see, State v. ODorle, 738 So. 2d 987 (Fla. 2d DCA 1999); State v. Norris, 724 So. 2d 630 (Fla. 5th DCA 1998); State v. Brown, 717 So. 2d 625 (Fla. 5th DCA 1998).
107 106

105

921.0026(2)(d), Fla. Stat. 921.0026(2)(d), Fla. Stat.

108

State v. Mann, 866 So. 2d 179 (Fla. 5th DCA 2004); see also, State v. Porche, 826 So. 2d 1062 (Fla. 2d DCA 2002); State v. Tyrrell, 807 So. 2d 122 (Fla. 5th DCA 2002); State v. White, 755 So. 2d 830 (Fla. 5th DCA 2000); State v. Thompson, 754 So. 2d 126 (Fla. 5th DCA 2000) (noninsulin diabetes, sciatica, and heart problems were not valid reasons to depart downward in the absence of evidence that defendant required specialized treatment that could not be provided by DOC); State v. Stewart, 749 So. 2d 555 (Fla. 2d DCA 2000); State v. Abrams, 706 So.

109

24

factual and reliable that the required treatment is not available from the Department of Corrections.110 In other words, the burden on the defendant is to show that the Department of Corrections cannot provide the required specialized treatment.111 In this regard, testimony from a treating physician regarding the defendants mental disabilities and his or her need for specialized treatment, without more, does not satisfy the defendants burden for a departure under section 921.0026(2)(d).112 The defendants burden as to this element is also not satisfied by inconclusive or equivocal statements by a treating physician as to whether or not the Department of Corrections can provide such treatment.113 Where there is no showing either that the defendant requires any treatment that cannot be provided by the Department of Corrections or that there is a reasonable possibility that the treatment would be successful, there is no factual predicate for a departure on this basis.114 The Fourth and Fifth District Courts of Appeals have, however, receded from the Department of Corrections treatment requirement, holding that the plain language of subsection 921.0026(2)(d) does not require the defendant to make such a showing.115 A finding that a defendant is amenable to treatment means there is a reasonable probability he or she will successfully overcome the mental disorder or physical disability through a treatment program, and this finding must be supported by some competent substantial evidence. Minimally, this requires proof of a reasonable possibility that the treatment will be successful.116 Something more than a defendants perfunctory statement that he or she is a fit subject to rehabilitation is

2d 903 (Fla. 2d DCA 1998). State v. Scherber, 918 So. 2d 423 (Fla. 2d DCA 2006) (testimony of psychologist that the Department of Corrections could provide any required medication but that she did not know if the Department could provide a formal plan to deal with coping skills, etc., did not provide by a preponderance of the evidence that Department could not provide the specialized treatment required); State v. Green, 890 So. 2d 1283 (Fla. 2d DCA 2005) (testimony of psychologist, based on his observations from the Department of Corrections Web site, that he was unsure whether required treatment was available from the Department, did not meet burden of establishing that the Department could not provide the specialized treatment required). State v. Ford, 48 So. 3d 948 (Fla. 3d DCA 2010); State v. Gatto, 979 So. 2d 1232 (Fla. 4th DCA 2008); State v. Scherber, 918 So. 2d 423 (Fla. 2d DCA 2006).
112 111 110

State v. Ford, 48 So. 3d 948 (Fla. 3d DCA 2010).

State v. Ford, 48 So. 3d 948 (Fla. 3d DCA 2010); State v. Green, 890 So. 2d 1283 (Fla. 2d DCA 2005); State v. Gatto, 979 So. 2d 1232 (Fla. 4th DCA 2008).
114

113

State v. Wheeler, 891 So. 2d 614 (Fla. 2d DCA 2005). State v. Owens, 95 So. 3d 1018 (Fla. 5th DCA 2012); State v. Chubbuck, 83 So. 3d 918 (Fla. 4th DCA

115

2012). State v. Cummings, 748 So. 2d 388, 113 A.L.R.5th 761 (Fla. 5th DCA 2000); State v. Parker, 733 So. 2d 1074 (Fla. 5th DCA 1999); see also, State v. Hillhouse, 708 So. 2d 326 (Fla. 2d DCA 1998).
116

25

needed.117 Dependency treatment as a mitigating factor is not a get out of jail free card to be used by a judge to entice a plea: There must be convincing evidence that the defendants future conduct will change because of treatment for defendants addiction.118 For example, the sua sponte determination of the trial court at an arraignment hearing that the defendant had an anger management problem, absent any evidence or testimony to support that contention, cannot be the basis of a downward departure.119 1.9.4.5. The need for payment of restitution to the victim outweighs the need for a prison sentence120 In weighing the need for restitution versus the need for imprisonment, a court must take into consideration all of the relevant factors, including the victims need for restitution and the defendants ability to pay. Evidence in support of restitution includes findings such as the nature of the victims loss, the effectiveness of restitution, and the consequences of imprisonment.121 The amount of restitution due must be substantial and not be minor.122 The victim must have a pressing need to recover the restitution amount specified.123 Ordinarily, the defendants ability to pay restitution need only be considered at the time of enforcement of the restitution order.124 However, where the purpose of sentencing a defendant to a downward departure is based on the need to reimburse the victim for his or her loss, it necessarily presupposes that restitution can be paid, and there must be competent substantial evidence of the defendants ability to pay, if this reason for departure is not to be defeated.125 There must also be competent, substantial evidence showing that

State v. Bostick, 715 So. 2d 298 (Fla. 4th DCA 1998); State v. Gordon, 645 So. 2d 140, 142 (Fla. 3d DCA 1994) (a defendants word alone is insufficient to establish that he or she is a suitable candidate for drug rehabilitation).
118

117

State v. Clark, 724 So. 2d 653 (Fla. 5th DCA 1999).

State v. Skidmore, 755 So. 2d 647 (Fla. 4th DCA 1999) (We need not address whether an inability to control anger, taken alone, rather than as a symptom of a medically recognized mental disorder, can constitute a basis for departure under [this section]); see also, State v. Coleman, 780 So. 2d 1004 (Fla. 4th DCA 2001) (departure for treatment of pedophilia upheld); State v. Osborn, 717 So. 2d 1110 (Fla. 5th DCA 1998) (evidence of Avoidant Personality Disorder and Dysthymic Disorder).
120

119

921.0026(2)(e), Fla. Stat.; see also, State v. White, 755 So. 2d 830 (Fla. 5th DCA 2000). State v. Petringelo, 762 So. 2d 965 (Fla. 2d DCA 2000).

121

State v. ODorle, 738 So. 2d 987 (Fla. 2d DCA 1999) (restitution amount of $112.62 will not support downward departure sentencing).
123

122

See, State v. Adkison, 56 So. 3d 880 (Fla. 1st DCA 2011). Sec. 775.089(6)(b), Fla. Stat. State v. Baker, 713 So. 2d 1027 (Fla. 2d DCA 1998), opinion quashed, 733 So. 2d 992 (Fla. 1999).

124

125

26

the victims need for restitution outweighs the need for a prison sentence.126 The test is the victims need, not the victims desire or preference.127 The trial court needs non-hearsay evidence of the extent of loss suffered by the victim.128 In the absence of testimony or a showing of the need for restitution by the victims or evidence that the defendant would be able to provide restitution if spared a longer sentence, a downward departure based on the need for restitution is improper.129 Simply pleading guilty to the crimes committed, thereby saving the State the cost of prosecution will not support a downward departure sentence on this basis because there is a distinction between restitution and the taxation of the costs of investigation and prosecution.130 Restitution can be made a condition of post-incarceration probation, however. 1.9.4.6. The victim was an initiator, willing participant, aggressor, or provoker of the incident131 The term incident, for purposes of this statutory mitigator, means the circumstances immediately surrounding the offense with which the defendant has been convicted, and not the more remote circumstances out of which the offense arose.132 In determining whether this mitigator applies in sex crimes when the victim is a minor, the trial court must consider the victims age and maturity and the totality of the circumstances of the relationship between the defendant and the victim: the younger and less mature the victim, the less likelihood of a finding that even willing

State v. Kasten, 775 So. 2d 992 (Fla. 3d DCA 2000) (downward departure on ground that defendant could pay for therapy for child victim of sexual offenses if he were not incarcerated reversed because there was no record testimony as to cost of future counseling, and victim was presently receiving counseling at no cost, and there was no record supporting the need for restitution); State v. White, 755 So. 2d 830 (Fla. 5th DCA 2000); State v. Bleckinger, 746 So. 2d 553 (Fla. 5th DCA 1999). Demoss v. State, 843 So. 2d 309 (Fla. 1st DCA 2003); Banks v. State, 732 So. 2d 1065 (Fla. 1999) (victims wishes not dispositive, for it is the judge, not the victim, who must weigh society's competing needs); see also, State v. Quintanal, 791 So. 2d 23 (Fla. 3d DCA 2001) (reversing downward departure sentence where victims lost approximately $200,000 and preferred restitution over incarceration, but no evidence was presented as to victims' need for restitution). State v. Schillaci, 767 So. 2d 598 (Fla. 4th DCA 2000) (downward departure improper where there was no evidence that the victims had any particular need or desire for restitution nor any evidence regarding the amount of restitution).
129 128 127

126

State v. Amodeo, 750 So. 2d 664 (Fla. 5th DCA 1999).

State v. Bleckinger, 746 So. 2d 553 (Fla. 5th DCA 1999); State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985); see, State v. Tyrrell, 807 So. 2d 122 (Fla. 5th DCA 2002).
131

130

921.0026(2)(f), Fla. Stat. See, State v. Morales, 718 So. 2d 272 (Fla. 5th DCA 1998).

132

27

participation is sufficient for mitigating a defendants sentence on the basis of consent.133 The statute does not exempt children, and so a court may consider a downward departure sentence on this basis in sex cases where the child victim could not legally consent to the sexual activity if factually the victim had been an initiator and a willing participant in the illegal conduct.134 Consent in this regard means intelligent, knowing, and voluntary consent.135 In crimes of violence, the mere fact that the victim was armed is not, in and of itself, sufficient to justify a departure on this basis.136 There must be some provocation on the part of the victim, although the provocation does not have to be legally sufficient to warrant a finding that the defendant acted in self-defense.137 This mitigator is not available in cases involving the sale of illegal drugs.138 While in the civil context a passengers voluntary action of knowingly riding in an automobile with an intoxicated driver can implicate comparative negligence principles to reduce damage awards,139 these comparative negligence principles do not extend to the statutory sentence mitigator of willing participation by the victim

See, State v. Johns, 576 So. 2d 1332 (Fla. 5th DCA 1991) (reversal of downward departure sentence where the victim was a 14-year old prostitute and the defendant was a police officer).
134

133

Holland v. State, 953 So. 2d 19 (Fla. 2d DCA 2007).

State v. Rife, 789 So. 2d 288 (Fla. 2001) (downward departure allowed in statutory rape case where victim was a willing participant despite fact that consent is not a defense to the crime); see also, Knox v. State, 814 So. 2d 1185 (Fla. 2d DCA 2002); see, however, State v. Johns, 576 So. 2d 1332 (Fla. 5th DCA 1991) (fact that 14year-old prostitute charged defendant for sex cannot be used as basis to mitigate sentence).
136

135

Fonte v. State, 913 So. 2d 670 (Fla. 3d DCA 2005).

Hines v. State, 817 So. 2d 964 (Fla. 2d DCA 2002) (downward departure sentence could be imposed even though jury rejected self-defense claim); State v. Mathis, 541 So. 2d 744, 745 (Fla. 3d DCA 1989) (affirming downward departure sentence in aggravated battery case where victim provoked defendant); State v. Tai Van Le, 553 So. 2d 258 (Fla. 2d DCA 1989) (affirming downward departure sentence in murder case on basis that victim was aggressor despite fact that jury apparently rejected defendants claim of self-defense). State v. Holmes, 909 So. 2d 526 (Fla. 1st DCA 2005) (fact that undercover officer was initiator, willing participant, aggressor, or provoker with respect to the drug sale was not a mitigating circumstance under which departure from lowest permissible sentence under sentencing guidelines would be reasonably justified, at sentencing for felony convictions for sale of cocaine within 1,000 feet of place of worship and conspiracy to sell/deliver cocaine within 1,000 feet of place of worship); State v. Holsey, 908 So. 2d 1159 (Fla. 1st DCA 2005) (fact that undercover officer was initiator, willing participant, aggressor, or provoker of incident leading to charges against defendant was not proper ground for downward departure in sentencing). See, e.g., Gerena v. Carter, 496 So. 2d 1009 (Fla. 2d DCA 1986) (in a civil action a victim's intoxication may preclude recovery if he or she was more than 50% at fault for his or her own harm); Florida East Coast Ry. Co. v. Keilen, 183 So. 2d 547, 54950 (Fla. 3d DCA 1966) (Florida imposes a duty upon the guest to make a reasonable attempt, suitable to the occasion, to rectify the conduct of the driver whom he knows or by the exercise of ordinary and reasonable care should know is not exercising that degree of care in the operation of the vehicle compatible with the guests safety.).
139 138

137

28

in a criminal DUI manslaughter case140 absent a causal connection between the victims conduct and defendants reckless driving.141 1.9.4.7. The defendant acted under extreme duress or under the domination of another person142 The mitigator of extreme duress presupposes that a harm or crime of greater magnitude is avoided when the subjected person succumbs to the duress.143 Duress as used in this sense does not mean internal pressure, but actually refers to external provocation such as imprisonment or the use of force or threats.144 The compulsion or coercion which will support a departure sentence is akin to the common law defense of duress used to excuse the commission of a criminal act: It must be present, imminent, and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done; it must be continuous, and there must be no reasonable opportunity to escape the compulsion without committing the crime. A threat of future injury is not enough, particularly after danger from the threat has passed. However, it is not necessary that the defendant show that he or she was absolutely driven and made to commit the act charged as a crime.145 Legal recognition of duress as a defense to crimes other than homicide necessarily assumes a working hypothesis that a harm or crime of greater magnitude is avoided when the subjected person succumbs to the duress.146 As to domination by another person, the domination must be substantial and evidence that the defendant was easily led is insufficient, in and of itself, to establish this mitigator.147 Evidence that the defendant played a substantial part in the planning and/or execution of the offense can be sufficient to rebut or deny this mitigator.148

140

State v. Torres, 60 So. 3d 560 (Fla. 2d DCA 2011).

See, e.g., State v. Hinds, 85 Wash. App. 474, 936 P.2d 1135 (Div. 1, 1997) (willing participant mitigating factor may be applicable in sentencing for vehicular homicide where victim provided alcohol to 18-year-old and allowed him to drive her automobile and causal connection is found between victims conduct and defendants recklessness).
142

141

921.0026(2)(g), Fla. Stat. See, Wright v. State, 402 So. 2d 493 (Fla. 3d DCA 1981).

143

Pooler v. State, 704 So. 2d 1375 (Fla. 1997) (fact that his former girlfriend had been seeing another man, even if it caused defendant to become distraught, simply does not qualify as external provocation for purposes of this statutory mitigator); Toole v. State, 479 So. 2d 731, 51 A.L.R.4th 1231 (Fla. 1985).
145

144

See, Hall v. State, 136 Fla. 644, 187 So. 392 (1939). Wright v. State, 402 So. 2d 493 (Fla. 3d DCA 1981). See, Lawrence v. State, 846 So. 2d 440 (Fla. 2003). See, Philmore v. State, 820 So. 2d 919 (Fla. 2002); White v. State, 817 So. 2d 799 (Fla. 2002).

146

147

148

29

 1.9.4.8. Before the identity of the defendant was determined, the victim was substantially compensated149 This provision has not been the subject of appellate litigation in this state, but the litigation of equivalent provisions150 in other states provides insights into the appropriate application in Florida of this basis for departure sentencing. This provision represents a legislative distinction between the objective manifestation of remorse as a reaction to the commission of the crime and subjective manifestations of remorse as a reaction to potential sentencing consequences: Efforts to compensate before and after the identity of the defendant is determined, (e.g., pre-detection provision of first aid, payment of medical bills, return of all property taken, etc.) comprise more reliable evidence of remorse than the often dubious expression of remorse made only after the defendant is called into account for his or her actions. This legislative determination thus allows inclusion of reliable pre-detection evidence of remorse in sentence determination.151 This departure is also based on the fact of compensation of the victim.152 A mere promise or willingness to pay restitution is not enough.153 The compensation must be substantial.154 The actions of the defendant also must occur before detection.155 The actions of the defendant must also demonstrate remorse, as opposed to actions undertaken by the defendant for other considerations.156
149

921.0026(2)(h), Fla. Stat.

E.g., Tenn. Code Ann. 4035113(5) (2004) allows for sentence mitigation if Before detection, the defendant compensated or made a good faith attempt to compensate the victim of criminal conduct for the damage or injury the victim sustained; Rev. Code. Wash. 9.94A.535(1)(b) (2004) allows for departure downward from that state's sentencing guidelines if Before detection, the defendant compensated, or made a good faith attempt to compensate, the victim of the criminal conduct for the damage or injury sustained.
151

150

See, State v. McClarney, 107 Wash. App. 256, 26 P.3d 1013 (Div. 1, 2001). State v. McClarney, 107 Wash. App. 256, 26 P.3d 1013 (Div. 1, 2001). See, State v. Morris, 1998 WL 508053 (Tenn. Crim. App. 1998).

152

153

See, State v. Ramsey, 2003 WL 21658589 (Tenn. Crim. App. 2003) (in course of home-invasion robbery involving theft of firearm and computer CPU and monitor, after removing batteries from victims cellular telephone and taking cord from victims other telephone, giving victim $4 to replace telephone cord before leaving crime scene not sufficient compensation). See, State v. Kinneman, 120 Wash. App. 327, 84 P.3d 882 (Div. 1 2003) (payment of restitution into court registry after apprehension); State v. Burns, 2000 WL 1858997 (Tenn. Crim. App. 2000) (payment of restitution before sentencing hearing but after defendant charged); State v. Wallace, 2000 WL 1782757 (Tenn. Crim. App. 2000) (payment to business for forged check before defendant charged but subsequent to police involvement); State v. Burgess, 1997 WL 154058 (Tenn. Crim. App. 1997) (defendant made no effort to compensate victim until day of sentencing hearing). See, State v. Goltz, 111 S.W.3d 1 (Tenn. Crim. App. 2003) (return of stolen items not motivated by good faith, but rather, in an attempt to avoid detection); State v. Bruce, 2002 WL 31154602 (Tenn. Crim. App. 2002) (return of stolen items was not an attempt to compensate the victim but was rather a product of the abusive and controlling relationship by the [defendant] towards the victim); State v. Galindo, 2000 WL 378314 (Tenn. Crim.
156 155

154

30

 1.9.4.9. The defendant cooperated with the State to resolve the current offense or any other offense157 The court must also make a finding based on competent substantial evidence that a crime, or crimes, had been resolved as a result of the defendant's cooperation.158 A departure sentence cannot be based on cooperation where the assistance does not result in solving any crimes or the arrest of other persons.159 A defendants act of turning himself or herself in to the police does not constitute cooperation with authorities and cannot serve as the basis for a downward departure.160 A defendants action in not requiring police officers to get a search warrant to search his or her home and giving a statement to officers does not rise to the level of cooperation required in order to justify a downward departure sentence.161 Confessing to the crimes for which he or she is charged and allowing the police to search his or her room, where no contraband is found or crimes solved as a result and where it does not lead to the arrest of other persons, cannot serve as the basis for a downward departure.162 Merely pleading guilty is not sufficient cooperation for departure below the required sentence.163 Prior cooperation with the State that results in sentence mitigation cannot be used to mitigate sentencing for a new offense or a violation of probation or community control.164 A defendants cooperation can also be devalued for departure purposes where he or she commits additional offenses that undermine his or her credibility and value as a witness.165 Section 921.0026(2)(I), Fla. Stat. Does not place a temporal limit on when cooperation was provided, and so the cooperation can occur before the commission of the offense for which mitigation is sought.166

App. 2000) (offer or restitution when defendant knew she was about to get caught).
157

921.0026(2)(i), Fla. Stat. See, State v. Bell, 854 So. 2d 686 (Fla. 5th DCA 2003); State v. Beck, 763 So. 2d 506 (Fla. 4th DCA

158

2000).
159

State v. Ertel, 886 So. 2d 423 (Fla. 2d DCA 2004). State v. Laroe, 821 So. 2d 1199 (Fla. 5th DCA 2002). State v. Ertel, 886 So. 2d 423 (Fla. 2d DCA 2004). State v. White, 894 So. 2d 293 (Fla. 2d DCA 2005). State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985). See, State v. Bell, 854 So. 2d 686 (Fla. 5th DCA 2003). State v. Pita, 54 So. 3d 557 (Fla. 3d DCA 2011). Hill v. State, 122 So. 3d 1003 (Fla 1st DCA 2013).

160

161

162

163

164

165

166

31

Substantial assistance can also be a basis for post sentencing mitigation of a defendants sentence. Notwithstanding any other law, the state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of violating any felony offense or who provides substantial assistance in the identification, arrest, or conviction of any of that persons accomplices, accessories, coconspirators, or principals or of any other person engaged in criminal activity that would constitute a felony. The arresting agency must be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered such substantial assistance.167 The decision to reduce a sentence in response to a motion under section 921.186 is entirely within the discretion of the trial court and orders denying such motions are not appealable.168 1.9.4.10. The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse169 Section 921.0026(2)(j), Fla. Stat. requires that the defendant prove three elements: (1) the offense was committed in an unsophisticated manner, (2) it was an isolated incident, and (3) the defendant has shown remorse.170 All three elements must be proven, not just one or two.171 For purposes of a departure sentence the word unsophisticated is generally defined as being the opposite of sophisticated; further, as having acquired worldly knowledge or refinement; lacking natural simplicity or naivete.172 While lack of sophistication is demonstrated by artlessness, simplicity, naivet, and unrefinement, sophistication sufficient to defeat this basis for downward departure can be found where the defendant has taken careful, distinctive, and deliberate steps to perpetrate the offense. Sophistication can be shown, for example, where a defendant makes a surgical strike and takes only a certain coveted item from the victim,173 a defendant throws an object at the windshield of the vehicle his or her victim is operating in order to get the victim to stop

167

921.186, Fla. Stat. Cooper v. State, 106 So. 3d 32 (Fla. 1st DCA 2013). 921.0026(2)(j), Fla. Stat.

168

169

State v. Jordan, 867 So. 2d 635 (Fla. 5th DCA 2004); State v. Bell, 854 So. 2d 686 (Fla. 5th DCA 2003); State v. Bleckinger, 746 So. 2d 553 (Fla. 5th DCA 1999).
171

170

State v. Deleon, 867 So. 2d 636 (Fla. 5th DCA 2004); State v. Falocco, 730 So. 2d 765 (Fla. 5th DCA

1999). American Heritage Dictionary of the English Language (1981); Staffney v. State, 826 So. 2d 509 (Fla. 4th DCA 2002) (sexual battery was not unsophisticated); State v. Fleming, 751 So. 2d 620 (Fla. 4th DCA 1999) (purchase of marijuana was unsophisticated).
173 172

State v. PerezGonzalez, 884 So. 2d 1031 (Fla. 3d DCA 2004).

32

and be accessible to the defendant,174 where the defendant gains entry to the victim's residence by deceit,175 or where the defendant makes a calculated decision not to flee after detection and to continue the offense or defeat the detection.176 Neither the legislature nor the courts has established a bright-line rule for determining whether an offense is an isolated incident. A trial court is not, however, precluded from giving a defendant a downward departure sentence just because the defendant has any prior criminal history.177 Isolated offenses do not include continuing offenses.178 A crime may not be considered an isolated incident for purposes of this basis of departure where the defendant has been convicted of other felonies and misdemeanors.179 A prior history of like crimes can render this basis for departure unavailable.180 A defendants extensive prior criminal record precludes a showing that an offense was an isolated incident.181 Note that it is proper for the sentencing court to consider the defendants prior juvenile record when determining whether or not an offense is isolated.182

174

State v. Chestnut, 718 So. 2d 312 (Fla. 5th DCA 1998). State v. Morales, 718 So. 2d 272 (Fla. 5th DCA 1998). State v. Salgado, 948 So. 2d 12 (Fla. 3d DCA 2006).

175

176

See, e.g., State v. Fontaine, 955 So. 2d 1248, 1251 (Fla. 4th DCA 2007) (Warner, J., concurring) (the defendants current offense was an isolated incident where his criminal record included two misdemeanors that were committed ten years earlier); State v. Randall, 746 So. 2d 550, 552 (Fla. 5th DCA 1999) (the defendants current offense was an isolated incident where he had only one prior criminal conviction). State v. Hinson, 855 So. 2d 119 (Fla. 1st DCA 2003) (fleeing after VOP sentencing is not an isolated incident, but rather a continuous violation of the law; living at liberty for six and one-half years, solely due to leaving the area and successfully avoiding arrest and living as a fugitive on an outstanding warrant, is not a valid ground on which to depart downward). State v. Tice, 898 So. 2d 268 (Fla. 5th DCA 2005) (departure sentence of defendant convicted of burglary and resisting an officer without violence vacated where defendant had been previously convicted of resisting an officer without violence, two violations of probation, aggravated battery with a deadly weapon, and fleeing or attempting to elude a police officer); see also, State v. Jordan, 867 So. 2d 635 (Fla. 5th DCA 2004). State v. White, 894 So. 2d 293 (Fla. 2d DCA 2005) (defendant sold cocaine during four-month period and was still consuming cocaine four months after arrest, as revealed by testing during supervised pretrial release); State v. Bell, 854 So. 2d 686 (Fla. 5th DCA 2003) (two prior convictions for driving on a suspended drivers license for person charged with driving getaway car on suspended license).
181 180 179 178

177

State v. Ayers, 901 So. 2d 942 (Fla. 2d DCA 2005); State v. McGriff, 698 So. 2d 331 (Fla. 2d DCA

1997).
182

State v. Waterman, 12 So. 3d 1265 (Fla. 4th DCA 2009).

33

Remorse is defined as a gnawing distress arising from a sense of guilt for past wrongs (as injuries done to others).183 The remorse expressed has to be for the offense before the court for sentencing, not for matters that gave rise to that offense.184 Guided statements elicited by the court or counsel, simply saying I'm sorry at sentencing, or apologizing for pain the defendant caused the victims family is not enough to satisfy the requirements of this basis for departure.185 It is impossible for a defendant who refuses to accept responsibility for an offense to show remorse for that offense.186 Sympathy is not the same as remorse, and a defendants expression of sorrow that a victim was injured or suffered some loss is not what the legislature contemplated in creating this basis for downward departure.187 Note that, ironically, this basis is available to support a downward departure from a sentence for a driving under the influence (DUI) conviction; there is in fact no prohibition on such use of any of the mitigators listed in section 921.0026(2), Fla. Stat., where the offense is intoxication, even though intoxication itself is not a valid reason for downward departure.188 This basis for departure has been sustained on appeal where a 25year-old defendant convicted of committing a lewd and lascivious or indecent act on an almost 16year-old sexually experienced minor and enticing a minor to commit a lewd, lascivious or indecent act where there was evidence that the three sex acts committed by the defendant were isolated because they were something the defendant had never engaged in before, that the acts took place in a relatively short span of time, that the defendant had no prior criminal history, that the sex acts were performed in an unsophisticated manner, and that the defendant truly was remorseful about his activities immediately after being accused.189 Where an adult defendant has committed lewd molestation on a child victim, however, it might be difficult, if not impossible, to prove that the defendant committed the offense in an unsophisticated manner.190 This basis for departure has also been sustained on appeal where the defendant was charged with sale and possession of cocaine arising out

183

Beasley v. State, 774 So. 2d 649 (Fla. 2000).

State v. Michels, 59 So. 3d 1163 (Fla. 4th DCA 2011), reh'g granted, (Apr. 27, 2011) (remorse for incident that gave rise to defendant being required to register as sexual offender does not meet statutory departure requirement where defendant is charged with failure to register). State v. Tyrrell, 807 So. 2d 122 (Fla. 5th DCA 2002); State v. Baker, 713 So. 2d 1027 (Fla. 2d DCA 1998), opinion quashed, 733 So. 2d 992 (Fla. 1999); State v. Whiting, 711 So. 2d 1212 (Fla. 2d DCA 1998).
186 185

184

State v. Ayers, 901 So. 2d 942 (Fla. 2d DCA 2005). State v. Chestnut, 718 So. 2d 312 (Fla. 5th DCA 1998). State v. VanBebber, 848 So. 2d 1046 (Fla. 2003). State v. Merritt, 714 So. 2d 1153 (Fla. 5th DCA 1998).

187

188

189

See, State v. Subido, 925 So. 2d 1052 (Fla. 5th DCA 2006) (15-year-old sleeping victim); State v. Munro, 903 So. 2d 381 (Fla. 2d DCA 2005) (seven-year-old victim); State v. Bernard, 744 So. 2d 1134 (Fla. 2d DCA 1999).

190

34

of four instances when the defendant sold a total of 1.8 gram of cocaine to the same confidential informant over a period of several days, netting the defendant $220, where the defendant had no prior history of drug charges, made a full confession to the police after his arrest, claimed the only reason he was selling drugs was to buy Christmas presents for his children, and appeared to be remorseful.191 1.9.4.11. At the time of the offense the defendant was too young to appreciate the consequences of the offense192 The youthful age of an offender is not a valid reason for a departure sentence unless there are other factors present, such as emotional immaturity or lack of intelligence.193 In other words, a defendants youthful age alone will not justify a departure sentence. There must also be evidence that the defendant is emotionally immature or lacks ordinary intelligence.194 Section 921.0026(2)(k) specifically requires that the defendant be both youthful and unable to appreciate the consequences of the offense in order to be eligible for a downward departure sentence on this basis.195 In those cases where age has been considered as a basis of departure, it has generally been accompanied by a clean record, although some courts have required an even greater showing, such as the support of friends and family.196 In some cases youthful age of the defendant, coupled with some reasonable chance for the defendants rehabilitation, has been deemed a sufficient foundation for departure on this basis.197

191

State v. Randall, 746 So. 2d 550 (Fla. 5th DCA 1999). 921.0026(2)(k), Fla. Stat.

192

State v. Evans, 630 So. 2d 203 (Fla. 2d DCA 1993); see also, State v. Williams, 963 So. 2d 281 (Fla. 4th DCA 2007), on reh'g, 978 So. 2d 187 (Fla. 4th DCA 2007) (the age of twenty-two does not place a defendant in the category of being too young to appreciate the consequences of driving with a revoked license); State v. Gilson, 800 So. 2d 727 (Fla. 5th DCA 2001) (age of 18 years is not, alone, a sufficient basis for departure but may be if coupled with competent substantial evidence of emotional immaturity); State v. Thompson, 754 So. 2d 126 (Fla. 5th DCA 2000) (age is not a legitimate basis for departure when defendant is 48 years old at time of sentencing); State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985) (23 years of age is not considered young for a robber). State v. Salgado, 948 So. 2d 12 (Fla. 3d DCA 2006); State v. Gilson, 800 So. 2d 727, 730 (Fla. 5th DCA 2001); State v. Licea, 707 So. 2d 1155, 1157 (Fla. 2d DCA 1998); State v. Ashley, 549 So. 2d 226 (Fla. 3d DCA 1989).
195 194

193

State v. Salgado, 948 So. 2d 12 (Fla. 3d DCA 2006). See, State v. Licea, 707 So. 2d 1155 (Fla. 2d DCA 1998); State v. Williams, 637 So. 2d 45 (Fla. 2d DCA

196

1994).
197

State v. Whiddon, 554 So. 2d 651 (Fla. 1st DCA 1989).

35

 1.9.4.12. The defendant is to be sentenced as a youthful offender198 A Youthful offender (YO) is any person who is sentenced as such by the court or is classified as such by the Department of Corrections pursuant to section 958.04.199 There are two ways by which a defendant can become entitled to the benefits of the YO statute. Either the trial court can sentence the defendant as a YO, or the Department of Corrections can designate a defendant who was sentenced as an adult to be a YO.200 Pursuant to section 958.04, Fla. Stat., the court may sentence as a YO any person: (a) Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 985; (b) Who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime that is, under the laws of this state, a felony if the offender is younger than 21 years of age at the time sentence is imposed;201 and (c) Who has not previously been classified as a youthful offender under the provisions of chapter 985; however, a person who has been found guilty of a capital or life felony may not be sentenced as a YO under the Youthful Offender Act. The defendant is entitled to an opportunity to present to the court facts which would materially affect the decision of the court to adjudicate the defendant a YO. The defendant, his or her attorney, and the state are entitled to inspect all factual material contained in the comprehensive presentence report or diagnostic reports prepared or received by the Department of Corrections. The victim, the victims parent or guardian if the victim is a minor, the lawful representative of the victim or of the victims parent or guardian if the victim is a minor, or the victims next of kin in the case of a homicide may review the presentence investigation report as provided in section 960.001(1)(g) 2. The court may withhold from disclosure to the defendant and his or her attorney sources of information which have been obtained through a promise of confidentiality. In all cases in which

198

921.0026(2)(l), Fla. Stat. 958.03(5), Fla. Stat. See, Smith v. State, 750 So. 2d 754 (Fla. 1st DCA 2000).

199

200

On October 1, 2008, section 958.04(1)(b) was amended by Ch. 2008-250, 7(1), Laws of Florida by substituting the offender is younger than 21 years of age at the time sentence is imposed for such crime was committed before the defendant's 21st birthday following felony if in paragraph (b). This change has not been given retroactive effect, however, making defendants who were under 21 years of age at the time of their offenses but over the age of 21 at the time of sentencing eligible for youthful offender status after this change in the law went into effect. See, Urban v. State, 46 So. 3d 1113 (Fla. 5th DCA 2010).

201

36

parts of the report are not disclosed, the court must state for the record the reasons for its action and shall inform the defendant and his or her attorney that information has not been disclosed.202 In lieu of other criminal penalties authorized by law and notwithstanding any imposition of consecutive sentences, the court is required to dispose of the criminal case as follows: (a) The court may place a YO under supervision on probation or in a community control program, with or without an adjudication of guilt, under such conditions as the court may lawfully impose for a period of not more than six years. Such period of supervision may not exceed the maximum sentence for the offense for which the YO was found guilty. (b) The court may impose a period of incarceration as a condition of probation or community control, which period of incarceration shall be served in a county facility, a Department of Corrections probation and restitution center, or a community residential facility that is owned and operated by any public or private entity providing such services. A YO may not be required to serve a period of incarceration in a community correctional center as defined in section 944.026, Fla. Stat. Admission to a Department of Corrections facility or center is contingent upon the availability of bed space, taking into account the purpose and function of such facility or center, and placement in such a facility or center may not exceed 364 days. (c) The court may impose a split sentence whereby the YO is to be placed on probation or community control upon completion of any specified period of incarceration; however, if the incarceration period is to be served in a Department of Corrections facility other than a probation and restitution center or community residential facility, such period must be for not less than one year or more than four years. The period of probation or community control must commence immediately upon the release of the YO from incarceration. The period of incarceration imposed or served and the period of probation or community control, when added together, may not exceed six years. (d) The court may commit the YO to the custody of the Department of Corrections for a period of not more than six years, provided that any such commitment may not exceed the maximum sentence for the offense for which the YO has been convicted. Successful participation in the YO program by an offender who is sentenced as a YO by the court pursuant to this section, or is classified as such by the Department of Corrections, may result in a recommendation to the court, by the Department of Corrections, for a modification or early termination of probation, community control, or the sentence at any time prior to the scheduled expiration of such term. When a modification of the sentence results in the reduction of a term of incarceration, the court may impose a term of probation or community control which, when added to the term of incarceration, shall not exceed the original sentence imposed.

202

958.07, Fla. Stat.

37

Consecutive YO sentences exceeding the applicable maximum of six years are illegal.203 A sentencing court can impose any YO sentence, so long as no matter how many sentences are imposed, the total does not exceed four years incarceration followed by two years probation or community control allowed by the applicable youthful offender statute.204 A violation or alleged violation of probation or the terms of a community control program subjects the youthful offender to the provisions of section 948.06. However, no youthful offender can be committed to the custody of the Department of Corrections for a substantive violation for a period longer than the maximum sentence for the offense for which the youthful offender was found guilty, with credit for time served while incarcerated, or for a technical or nonsubstantive violation for a period longer than six years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated.205 The legislature has not defined substantive violation or technical or nonsubstantive violation, but courts examining the Youthful Offender Act have defined substantive violation as a new separate criminal offense by a youthful offender,206 whether or not he or she is ever charged or convicted of that new criminal offense.207 In contrast, a technical violation is a violation of a rule of probation or community control.208 The provisions of the YO Act cannot be used to impose a greater sentence than the permissible sentence range as established by the Criminal Punishment Code pursuant to chapter 921 unless reasons are explained in writing by the trial court judge which reasonably justify departure. A sentence imposed outside of the Criminal Punishment Code is subject to appeal pursuant to section 924.06 or section 924.07, Fla. Stat. No one who has been found guilty of a life felony can be sentenced as a YO.209 Otherwise, a trial court may exercise discretion and not impose a youthful offender sentence.210 Failure to

203

Schebel v. State, 721 So. 2d 1177 (Fla. 1st DCA 1998). Nguyen v. State, 566 So. 2d 368 (Fla. 5th DCA 1990). 958.14, Fla. Stat.

204

205

Swilley v. State, 781 So. 2d 458 (Fla. 2d DCA 2001); Meeks v. State, 754 So. 2d 101, 103 (Fla. 1st DCA 2000), approved in part, 789 So. 2d 982 (Fla. 2001); Robinson v. State, 702 So. 2d 1346, 1347 (Fla. 5th DCA 1997); Johnson v. State, 678 So. 2d 934 (Fla. 3d DCA 1996).
207

206

See Christian v. State, 84 So. 3d 437 (Fla. 5th DCA 2012).

See, Swilley v. State, 781 So. 2d 458 (Fla. 2d DCA 2001); Meeks v. State, 754 So. 2d 101, 103 (Fla. 1st DCA 2000), approved in part, 789 So. 2d 982 (Fla. 2001). 958.04(1)(c), Fla. Stat.; Beatrice v. State, 832 So. 2d 972 (Fla. 4th DCA 2003) (conviction for first degree felony reclassified under 10/20/Life statute as life felony precludes sentencing as youthful offender).
210 209

208

Legette v. State, 694 So. 2d 826 (Fla. 2d DCA 1997).

38

sentence a defendant as a youthful offender does not result in an illegal sentence.211 A defendant may not be simultaneously sentenced as both a youthful offender and as an adult.212 The sentencing court may not impose a youthful offender sentence on one count, but not another, even if part of a plea agreement.213 As the intent of the Youthful Offender Act was to provide a sentencing alternative more stringent than the juvenile system but less harsh than the adult system, imposition of consecutive sentences as a youthful offender and as an adult would thwart the purpose of the Act.214 Imposition of sanctions other than those of the Youthful Offender Act is, in fact, prohibited once a court classifies a defendant as a YO. Minimum mandatory sentencing, in fact, is not applicable when a defendant is sentenced as a YO.215 A YO sentence may be imposed on a defendant in lieu of a mandatory sentence under the 1020Life scheme mandated by the firearm enhancement statute, section 775.087, Fla. Stat., because the firearm enhancement statute contains no language to supersede a YO sentence.216 Imposition of the statutorily mandated minimum mandatory prison sentence and fine under the drug trafficking statute, section 893.135, Fla. Stat., is also preempted by the YO statute.217 A defendant classified as a YO is not subject to the minimum mandatory provisions of the DUI manslaughter statute,218 and the trial court can withhold adjudication for DUI offenses notwithstanding the mandatory language of section 316.656(1), Fla.
211

Edwards v. State, 830 So. 2d 141 (Fla. 5th DCA 2002).

See, Johnson v. State, 596 So. 2d 495 (Fla. 5th DCA 1992) (a defendant simultaneously sentenced to four years incarceration in two cases as a youthful offender, followed by ten years probation as an adult in two other cases, received an illegal sentence).
213

212

Goelz v. State, 937 So. 2d 1237 (Fla. 4th DCA 2006). Kelly v. State, 739 So. 2d 1164 (Fla. 5th DCA 1999); see, Allen v. State, 526 So. 2d 69 (Fla. 1988).

214

See, State v. Oglester, 830 So. 2d 124 (Fla. 3d DCA 2002); State v. Drury, 829 So. 2d 287 (Fla. 1st DCA 2002); State v. Fernandez, 819 So. 2d 945 (Fla. 3d DCA 2002); Darrow v. State, 789 So. 2d 552 (Fla. 5th DCA 2001); State v. Bynes, 784 So. 2d 1145 (Fla. 2d DCA 2001); Porter v. State, 702 So. 2d 257 (Fla. 4th DCA 1997); Ellis v. State, 475 So. 2d 1021 (Fla. 2d DCA 1985). Bennett v. State, 24 So. 3d 693 (Fla. 1st DCA 2009); Windham v. State, 14 So. 3d 255 (Fla. 5th DCA 2009); State v. Wooten, 782 So. 2d 408 (Fla. 2d DCA 2001) (minimum mandatory sentencing provisions of 10/20/Life statute applicable to enumerated felonies involving firearm do no supercede youthful offender sentence); Salazar v. State, 544 So. 2d 313 (Fla. 2d DCA 1989) (3year minimum mandatory for use of firearm does not apply to youthful offender); Patterson v. State, 408 So. 2d 785 (Fla. 2d DCA 1982) (same). Inman v. State, 842 So. 2d 862 (Fla. 2d DCA 2003) ($50,000 drug trafficking fine prohibited); Mendez v. State, 835 So. 2d 348 (Fla. 4th DCA 2003) (three-year minimum mandatory and $50,000 fine for drug trafficking cannot be imposed on defendant sentenced as youthful offender); State v. Richardson, 766 So. 2d 1111 (Fla. 3d DCA 2000) (mitigating 15year minimum mandatory sentence as a youthful offender for 19year-old defendant convicted of trafficking in excess of 400 grams of cocaine was within trial court's discretion); Jones v. State, 588 So. 2d 73 (Fla. 4th DCA 1991) (mandatory three-year sentence for conviction of selling drugs within 1,000 feet of school does not apply to defendant sentenced as youthful offender).
218 217 216

215

State v. Gibron, 478 So. 2d 475 (Fla. 2d DCA 1985).

39

Stat.219 A defendant classified as a YO may, however, also be designated as a sexual offender or sexual predator.220 If designated a sexual offender or sexual predator, the defendant is subject to the mandatory conditions of probation set out in section 948.30, Fla. Stat., notwithstanding the defendants designation as a YO.221 An otherwise qualified defendant who was originally sentenced as an adult can be sentenced as a YO upon revocation of probation or community control.222 1.9.4.13. The defendant is a nonviolent felony offender A departure from the lowest permissible sentence of imprisonment may be justified when the defendant's offense is a nonviolent felony, the defendants Criminal Punishment Code scoresheet total sentence points under section 921.0024 are 60 points or fewer, and the court determines that the defendant is amenable to the services of a postadjudicatory treatment-based drug court program and is otherwise qualified to participate in the program as part of the sentence. For purposes of this paragraph, the term nonviolent felony has the same meaning as provided in section 948.08(6).223 1.9.4.14. The defendant was making a good faith effort to obtain or provide medical assistance for a drug-related overdose224 Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified includes situations where the defendant was making a good faith effort to obtain or provide medical assistance for an individual experiencing a drug-related overdose.225 This statutory basis for downward departure sentencing was enacted by the Florida Legislature in the 2012 session as part of the 911 Good Samaritan Act, SB 278, that created section 893.21, Fla. Stat., which provides that a person who in good faith seeks medical assistance for an individual experiencing a drug-related overdose may not be charged, prosecuted, or penalized for possession of a controlled substance if the evidence for possession was obtained as a result of the person's seeking medical assistance. This law provides that a person who experiences a drug-related overdose and is in need of medical assistance may not be charged, prosecuted, or penalized for possession of a controlled substance if the evidence for possession was obtained as a result of the

219

Sloan v. State, 884 So. 2d 378 (Fla. 2d DCA 2004). Dejesus v. State, 862 So. 2d 847 (Fla. 4th DCA 2003). State v. Miller, 888 So. 2d 76 (Fla. 5th DCA 2004).

220

221

See, Hill v. State, 927 So. 2d 1047 (Fla. 2d DCA 2006); Williams v. State, 889 So. 2d 969 (Fla. 4th DCA 2004); Mearns v. State, 779 So. 2d 282 (Fla. 2d DCA 1998).
223

222

921.0026(2)(m), Fla. Stat. 921.0026(2)(n), Fla. Stat. 921.0026(2)(n), Fla. Stat.

224

225

40

overdose and the need for medical assistance. The law also states that the above-described protection from prosecution for possession offenses may not be grounds for suppression of evidence in other criminal prosecutions. Because there is no stated exclusion from being charged, prosecuted or penalized for a person who has committed any other offenses or who has an outstanding arrest warrant, such an exclusion should not be presumed. Persons who are in possession of trafficking amounts of controlled substances are not meant to benefit from the bills provisions. Likewise persons who possess a controlled substance with the intent to sell, deliver, manufacture or purchase would be eliminated from claiming the benefits of the law.226 1.9.4.15. Substantial assistance Another statutory mitigator and basis for departure sentencing, applicable to drug traffickers, is the provision of substantial assistance to law enforcement. In enacting section 893.135, the legislature provided that the various crimes included therein mandatory minimum sentences should be imposed. However, as part of the legislative scheme to stem trafficking in drugs, the legislature authorized trial courts to mitigate a mandatory sentence upon motion by the state attorney if the convicted person provides substantial assistance in the identification, arrest, or conviction of any of that persons accomplices, accessories, co-conspirators, or principals or of any other person engaged in trafficking in controlled substances. As part of this provision, the arresting agency must be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered such substantial assistance.227 In the absence of such a motion and a finding of substantial assistance, the court does not have any authority to sentence a defendant convicted of drug trafficking below the minimum mandatory sentence.228 Note that, where the defendant enters into a plea agreement that he or she is able to provide substantial assistance in exchange for the possibility of a sentence below the statutory minimum mandatory and the State refuses to allow the defendant to provide this assistance, such constitutes good cause for the defendant to withdraw his or her plea prior to sentencing.229 1.9.5. Non-statutory mitigating circumstances A court can properly enter a departure sentence for a factor that is not specifically enumerated in the sentencing statutes.230 The list of statutory grounds for both upward and downward departure
See 2012 Florida S.B. 278, Bill Analysis and Fiscal Impact Statement, Professional Staff of the Criminal Justice Committee, January 10, 2012.
227 226

893.135(4), Fla. Stat.; see also, State v. Taylor, 411 So. 2d 993 (Fla. 4th DCA 1982).

893.135(3), Fla. Stat.; State v. Senich, 543 So. 2d 804 (Fla. 4th DCA 1989); State v. Gallagher, 573 So. 2d 164 (Fla. 4th DCA 1991); State v. Swider, 654 So. 2d 562 (Fla. 4th DCA 1995).
229

228

Arzola v. State, 994 So. 2d 1209 (Fla. 5th DCA 2008). McCorvey v. State, 872 So. 2d 395 (Fla. 1st DCA 2004).

230

41

for the former guidelines provided in section 921.0016(4), Fla. Stat., and for downward departure in section 921.0026(2), Fla. Stat., for the Criminal Punishment Code, which are statutes of inclusion and not exclusion, is, therefore, not exclusive of other valid legal grounds.231 This is consistent with the established practice of individualized sentences resting on public policy considerations. In evaluating a nonstatutory mitigating circumstance, however, the question the trial court should ask is whether the nonstatutory reasons for downward departure given meet the legislative policy for departing downward.232 1.9.5.1. Generally Unlike statutory mitigation that has been clearly defined by the legislature, nonstatutory mitigation may consist of any factor that could reasonably bear on the sentence imposed. The parameters of nonstatutory mitigation are largely undefined, which is one of the reasons that the burden is placed on the defense to identify the specific nonstatutory mitigators relied on.233 Circumstances or factors that reasonably justify downward departure from the Criminal Punishment Code or guidelines minimum sentence may, in theory if not in actual fact, include virtually any justification that is reasonable under the circumstances. In the consideration of non-statutory reasons for mitigation, there is also no distinction to be drawn between capital and non-capital sentence mitigators that may be considered by a sentencing court.234 Factors that fall short of a defense sufficient to avoid responsibility for a crime by negating an element of an offense may even provide a basis for mitigation at sentencing, in the totality of the circumstances. In such a situation, the courts departure is reviewed under the abuse of discretion standard.235 The defense is required to identify for the court specific nonstatutory mitigating circumstances it is attempting to establish as a basis for departure.236 Unlike statutory mitigation that has been clearly defined by the legislature, nonstatutory mitigation may consist of any factor that could reasonably bear on the sentence. A court may, therefore, impose a downward departure sentence for reasons

231

Franquiz v. State, 682 So. 2d 536, 538 (Fla. 1996); State v. Randall, 746 So. 2d 550, 552 (Fla. 5th DCA

1999).
232

State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998). Israel v. State, 837 So. 2d 381 (Fla. 2002). See, e.g., Campbell v. State, 571 So. 2d 415 (Fla. 1990).

233

234

See, e.g., State v. Williams, 870 So. 2d 938 (Fla. 5th DCA 2004) (departure on basis of diminished mental capacity); State v. Sachs, 526 So. 2d 48 (Fla. 1988) (downward departure may be based on finding that defendant poses no future threat to society and that his misconduct was isolated).
236

235

See, Lucas v. State, 568 So. 2d 18 (Fla. 1990).

42

not delineated in section 921.0026, so long as the reason given is supported by competent, substantial evidence and not otherwise prohibited.237 In seeking a downward departure for nonstatutory reasons (or for a combination of statutory reasons where the facts of the case and of mitigation do not by themselves warrant downward departure on the basis of any single statutory reason) the defense has to argue for, within the Criminal Punishment Codes framework, a downward departure from the presumptive minimum sentence on the ground that the defendants circumstances present an atypical case that falls outside the set of circumstances to which the Legislature intends the provisions of the Criminal Punishment Code to apply. This is analogous to the heartland rule for downward departures from the federal sentencing guidelines announced by the United States Supreme Court in Rita v. United States.238 This approach argues that the presumption of reasonableness afforded a sentence that is within the authorization of the Criminal Punishment Code does not mean that a departure sentence carries a presumption of unreasonableness or that only extraordinary circumstances can justify a sentence below that authorized by the Code.239 Note that the First District Court of Appeal has ruled that a trial courts reliance on the federal heartland doctrine for sentencing in atypical federal cases, without further explanation of how this policy corresponds to Floridas sentencing policies as set out by the Florida Legislature and case law interpretations, is not a valid ground for departure from Floridas Criminal Punishment Code.240 Regardless, in evaluating a nonstatutory mitigating circumstance, a reviewing court must consider the reasons given in light of the stated legislative sentencing policy.241 Because the first purpose of sentencing is to punish, a downward departure from the permissible sentence is discouraged and adequate justification is required.242

State v. Stephenson, 973 So. 2d 1259 (Fla. 5th DCA 2008); State v. Laroe, 821 So. 2d 1199 (Fla. 5th DCA 2002); State v. Randall, 746 So. 2d 550, 552 (Fla. 5th DCA 1999); State v. Turro, 724 So. 2d 1216, 1217 (Fla. 3d DCA 1998).
238

237

Rita v. U.S., 551 U.S. 338, 127 S. Ct. 2456, 168 L. Ed. 2d 203 (2007).

The United States Supreme Court has, for example, rejected an appellate rule that requires extraordinary circumstances to justify a sentence outside the federal Sentencing Guidelines range. See, Gall v. U.S., 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007).
240

239

State v. Bowman, 123 So. 3d 107 (Fla. 1st DCA 2013).

State v. McKnight, 35 So. 3d 995 (Fla. 5th DCA 2010); State v. Geoghagan, 27 So. 3d 111, 115 (Fla. 1st DCA 2009); Rafferty v. State, 799 So. 2d 243, 248, 106 A.L.R.5th 783 (Fla. 2d DCA 2001) (during sentencing, question trial court should ask is whether nonstatutory reasons given for downward departure meet legislative policy for departing downward in sentencing); State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998).
242

241

State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998).

43

 1.9.5.2 Enticement To entice a person typically means to attract that person artfully or adroitly or by arousing hope or desire; to tempt.243 The Fourth District Court of Appeal has rendered the opinion that law enforcement enticement of a defendant to commit a crime is not one of the statutory enumerated grounds for a downward departure sentence, but that imposition of a downward departure based on enticement is not prohibited either.244 The basic argument for imposition of a downward departure sentence on this basis is that but for the enticement of law enforcement there would be no crime. The most likely situation for assertion of this mitigator is where law enforcement has conducted a sting operation and created a temptation for the defendant to commit the crime that falls short of entrapment, but the evidentiary challenges to application of this mitigator are formidable.. In its opinion, the Fourth District rejected this basis for departure where the police, attempting to catch thieves stealing packages from vehicles in a business parking lot, left an unoccupied pickup truck in the lot with a box in the truck bed indicating that it contained a pressure cleaner. John Henry Simmons was captured by the police as he was stealing the box from the truck bed after pulling up alongside the truck, getting out, walking around the truck two times, reaching into the truck, dropping the tailgate of the truck, and reaching inside the truck bed to grab the box. There was no evidence that law enforcement encouraged or induced Simmons to commit the crime where law enforcement never even spoke to Simmons until after the crime was committed.245 A jury convicted Simmons for attempted burglary of a conveyance, and Simmons never admitted that the crime had occurred and did not assert entrapment as a defense at trial. At sentencing, Simmons moved for a downward departure from the Criminal Punishment Code presumptive sentence on the basis of enticement. The trial court granted the departure and the State appealed. The Fourth District reversed the downward departure sentence, finding that the trial court applied the correct rule of law (that enticement is an allowed nonstatutory basis for a downward departure), but that competent, substantial evidence did not support the courts reason for imposing the downward departure sentence in the facts of this case.246 1.9.5.3. Sentencing entrapment and sentence manipulation Doctrines of sentence entrapment and sentence manipulation have developed in response to perceived abuses of sentencing laws, particularly as to graduated mandatory minimum sentencing schemes. A finding of sentencing entrapment or sentence manipulation will reduce a defendants culpability and can be relied upon to mitigate that defendants sentence.
243

See Grohs v. State, 944 So.2d 450 (Fla. 4th DCA 2006). State v. Simmons, 80 So. 3d 1089 (Fla. 4th DCA 2012). State v. Simmons, 80 So. 3d 1089 (Fla. 4th DCA 2012). State v. Simmons, 80 So. 3d 1089 (Fla. 4th DCA 2012).

244

245

246

44

 1.9.5.3.1. Sentencing entrapment Although the doctrine of sentencing entrapment may be relied upon to depart from the Federal Sentencing Guidelines,247 and it has so far not been formally recognized as a nonstatutory basis for downward departure sentencing in Florida, it is not inconsistent with present sentencing doctrine in this state. Sentencing entrapment occurs when outrageous official conduct overcomes the will of an individual predisposed only to commit a minor or lesser offense and the individual is entrapped into committing a greater offense subject to greater punishment.248 The focus of this mitigator is on the defendants predisposition to commit the crime. A possible situation of sentencing entrapment would be where the government, in a reverse-sting operation, sets a price substantially below the market price that leads a defendant to purchase significantly more drugs than the defendants resources would have allowed him or her to do, thereby driving up the defendants sentencing range.249 Another possible situation would be where the government provides necessary critical ingredients for the production or manufacture of illegal drugs not otherwise within the means or resources of the defendant to procure.250 Under the doctrine of sentencing entrapment, the defendant bears the burden of showing by a preponderance of the evidence that he or she was predisposed only to sell smaller amounts of drugs or that he or she had neither the intent nor the resources for selling the larger amount he or she was entrapped into selling.251 If the defendant proves by a preponderance of the evidence that law enforcement engaged in sentence entrapment, the sentencing court may reduce the defendants prescribed sentence either by (1) granting a downward departure from the presumptive sentencing minimum or (2) applying only the penalty provision for the lesser offense the defendant was predisposed to commit.252 1.9.5.3.2. Sentence manipulation The doctrine of sentence manipulation, also known as sentencing factor manipulation, is a more recent development. Sentencing manipulation is outrageous government conduct aimed only at increasing a persons sentence. Whereas sentencing entrapment focuses on the predisposition of the defendant, the related concept of sentence manipulation is concerned with the conduct of government officials. Sentencing manipulation could occur, for example, where the government extends, prolongs, revives, or otherwise tailors an investigation merely to increase the defendants

247

U.S. v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996). See, U.S. v. Barth, 990 F.2d 422, 424 (8th Cir. 1993); U.S. v. Rogers, 982 F.2d 1241, 1245 (8th Cir.

248

1993).
249

See, U.S. v. Hulett, 22 F.3d 779 (8th Cir. 1994). See, U.S. v. Berg, 178 F.3d 976 (8th Cir. 1999). U.S. v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996). See, Ford v. State, 99 Ark. App. 119, 257 S.W.3d 560 (2007).

250

251

252

45

sentence.253 Sentence manipulation is most likely to occur in reverse-sting operations, where the government can easily manipulate the type, quantity, or sheer weight of drugs involved to purposely escalate a defendants potential prison sentence. Incremental minimum mandatory sentencing ranges based upon weight or type of drug sold, delivered or manufactured create the potential for sentencing abuse by government agents using their knowledge of incremental sentencing minimums to manipulate the quantity of drugs sold or manufactured in a reverse sting to increase a defendants sentence.254 Sentence manipulation by the police is a valid nonstatutory basis for downward departure sentencing in Florida. Although a defendant does not have a right to be arrested in order to be prevented from committing further crimes, a trial court has discretion to impose a downward departure sentence when law enforcement allows a defendant to continue criminal activities for no reason other than to enhance the defendants sentence. When considering sentence manipulation as a basis for downward departure, the trial court's inquiry should focus on law enforcement intent: Was the police operation continued only to enhance the defendants sentence or did legitimate law enforcement reasons exist to support the police conduct, such as to determine the extent of the criminal enterprise, to establish the defendants guilt beyond a reasonable doubt, or to uncover any co-conspirators? If legitimate law enforcement reasons exist, then a downward departure based on sentence manipulation is not warranted. If the sentencing court finds that the police did commit sentence manipulation, the departure sentence imposed should not go below what the defendant would have received in the absence of sentence manipulation.255 Most other state and federal courts reject sentence manipulation or sentencing entrapment, as articulated in the Steadman decision.256 Under the doctrine of sentence manipulation, the defendant seeking a downward departure bears the burden of showing sentence manipulation by a preponderance of the evidence.257 The defendant must do more than simply show that, as a result of the government's participation, the crime was prolonged beyond the first criminal act, or exceeded in degree or kind what the defendant had done before.258 Rather, the defendant must demonstrate that the governments activities were

253

U.S. v. Shephard, 4 F.3d 647, 649 (8th Cir. 1993). See, U.S. v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996); also, U.S. v. Calva, 979 F.2d 119 (8th Cir.

254

1992). State v. Steadman, 827 So. 2d 1022 (Fla. 3d DCA 2002); but see, Kelley v. State, 821 So. 2d 1255 (Fla. 4th DCA 2002) (mandatory minimum sentence in a drug trafficking case may not be avoided when there is evidence of police inducement or entrapment leading to quantity of contraband possessed or sold to be greater than defendant originally had disposition to possess or sell). See, People v. Smith, 31 Cal. 4th 1207, 7 Cal. Rptr. 3d 559, 80 P.3d 662 (2003) for a survey of federal and state case law on this topic.
257 256 255

See, U.S. v. Gibbens, 25 F.3d 28 (1st Cir. 1994). See, U.S. v. Montoya, 62 F.3d 1 (1st Cir. 1995).

258

46

carried to such a degree that the governments conduct must be viewed as extraordinary misconduct259 or egregious conduct that goes beyond legitimate police investigative purposes.260 1.9.5.4. Lower sentence of an equally or more culpable co-defendant As a general principle, co-defendants should not be treated differently on the same or similar facts.261 In an effort to provide equality of punishment for two or more persons who participated in committing the same crime, the sentencing court may consider the lower sentence of an equally or more culpable co-defendant as a basis for a downward departure from the presumptive sentencing range for a defendant to achieve parity with a co-defendant or co-defendants. This means that, where an equally or more culpable co-defendant has been granted a downward departure, the sentencing court can grant a downward departure to a defendant to achieve sentencing parity, so long as the record contains competent and substantial evidence showing that the defendants culpability was less or not greater than the culpability of the co-defendant.262 Mere proportionality with a co-defendants sentence does not, however, justify a downward departure.263 While upward departures under the former guidelines may not be justified solely in order to match the sentence of a co-defendant,264 a downward departure under the former guidelines or Criminal Punishment Code may be imposed for that reason.265 1.9.5.5. Diminished mental capacity The Florida Supreme Court has held that evidence of abnormal mental condition not constituting legal insanity is inadmissible for purposes of negating specific intent or state of mind necessary to prove a criminal offense, that persons with less serious mental deficiencies should be held accountable for their crimes just as everyone else, but that if mitigation is appropriate, it may be accomplished through sentencing.266 This means that, under appropriate circumstances and with

259

See, U.S. v. Montoya, 62 F.3d 1 (1st Cir. 1995). See, State v. Soto, 562 N.W.2d 299 (Minn. 1997). Slater v. State, 316 So. 2d 539 (Fla. 1975). Sanders v. State, 510 So. 2d 296 (Fla. 1987). State v. Leverett, 44 So. 3d 634 (Fla. 5th DCA 2010).

260

261

262

263

Von Carter v. State, 468 So. 2d 276 (Fla. 1st DCA 1985); Thomas v. State, 461 So. 2d 274 (Fla. 5th DCA 1985). See, State v. Fernandez, 927 So. 2d 939 (Fla. 3d DCA 2006); Marchetta v. State, 766 So. 2d 1126 (Fla. 2d DCA 2000).
266 265

264

Chestnut v. State, 538 So. 2d 820, 825 (Fla. 1989).

47

sufficient proof, a mental defect less than insanity can form the basis of a downward departure sentence. An example of such a downward departure is the case of Kevin C. Williams. Williams had a presumptive minimum sentence of 78 months imprisonment with the Department of Corrections, but the trial court granted a downward departure and imposed a sentence of 39 months imprisonment on the following facts, as summarized by the appellate court: There was ample evidence that the defendant suffers from diminished mental capacity as well as significant physical problems. The defendant scored 68 and 70 on his IQ tests. He has memory, concentration and attention problems. The defendant is morbidly obese with a pronounced difficulty in walking. He uses a cane and appears to have some long-standing orthopedic malformation of his legs and/or feet. The defendant lives with his mother and has received Social Security Supplemental Income for many years. There was evidence that the defendant receives treatment and therapy on his legs, back and spine. He is very reliant on his mother, who sometimes helps him dress and who prepares his meals. The defendant was deemed minimally competent to stand trial. Witnesses at the sentencing hearing testified that the defendant would not hold up well under incarceration, that from an emotional and physical standpoint, he could not handle prison.267 On appeal by the State of Florida, the Fifth District Court of Appeal found no abuse of discretion and upheld the departure sentence, finding that this was a case in which diminished mental capacity constituted a valid legal ground for mitigation and downward departure at sentencing and was supported by sufficient evidence of record.268 1.9.5.6. Extraordinary susceptibility The Fourth District Court of Appeal has rendered the opinion that extraordinary susceptibility to committing crimes can be a lawful basis for a downward departure sentence. Specifically, the Fourth District has held that a trial courts downward departure sentence for a third and fourth DUI, based on defendant Ariel Montanez experiencing great difficulty in his personal life due to his divorce which made him more susceptible to substance abuse applied the correct rule of law. The Fourth District reversed the trial court, however, on the basis that the downward departure but was not supported by competent, substantial evidence. In reaching this conclusion, the Fourth District cited the lack of evidence establishing that the great difficulty actually made the defendant more susceptible to substance abuse, and the fact that the defendant has committed two other DUIs which occurred before the defendants divorce.269

267

State v. Williams, 870 So. 2d 938 (Fla. 5th DCA 2004). State v. Williams, 870 So. 2d 938 (Fla. 5th DCA 2004). State v. Montanez, So. 3d , 2014 WL 620271 (Fla. 4th DCA 2014).

268

269

48

 1.9.5.7. Extraordinary restitution In unusual cases extraordinary restitution, whether paid before or after a defendant enters a plea, can support a downward departure sentence. Ordinarily, payment of restitution is not a basis for a downward departure and departures that are based on the payment of restitution are discouraged for situations other than where the victims need for restitution outweighs the States need for incarceration. The situation is different, however, when the defendant makes extraordinary efforts to pay restitution, especially prior to entering a plea, that demonstrate acceptance of responsibility and exceptional efforts to fully remedy the harm cause by the offense. The sentencing laws of Florida do not prohibit downward sentencing departures in such situations and no Florida appellate court has taken up the issue. Nonetheless, extraordinary restitution is a valid basis for downward departure under federal sentencing guidelines, and federal law is instructive in this regard. While there is no bright-line rule for determining when particular payments of restitution are extraordinary enough to warrant downward departures, factors that a sentencing court can look to include the degree of voluntariness, the efforts to which the defendant went to to make restitution, the percentage of funds restored, the timing of the restitution, and whether the defendants motive demonstrates sincere remorse and acceptance of responsibility.270 1.9.5.8. Totality of circumstances A downward departure sentence can be supported, in unusual cases, under a totality of circumstances analysis where no one statutory reason for departure is available. An example of a departure sentence granted on this basis is the case of Shawn Strawser. Strawser entered an open plea of nolo contendere to the crimes of sexual battery upon a child less than 12 years of age and lewd and lascivious molestation perpetrated by Strawser at age 15 or 16 on his younger sisters playmates. Strawser was charged as an adult and, under the applicable sentencing law, had a presumptive minimum sentencing range of 49 years in prison. Extensive testimony was taken at sentencing, including that of an expert in the field of sex offender treatment, Strawsers probation officer from his pretrial release program, persons with extensive experience in preparing pre-sentence investigation reports, Strawser, and adverse testimony from the States witnesses. The court sentenced Strawser to a downward departure sentence of 15 months in prison, followed by 75 months of sex offender probation for each of the counts and declared him to be a sexual predator.271 The trial judge, in accordance with the requirements of a downward departure utilizing section 921.0026(2)(j), found that Strawser, who had previously admitted to all offenses as charged, was remorseful and that the conduct was done in an unsophisticated manner. The trial judge failed to explicitly articulate a finding on the isolated incident aspect of section 921.0026(2)(j); however,

270

See, U.S. v. Kim, 364 F.3d 1235 (11th Cir. 2004). State v. Strawser, 921 So. 2d 705 (Fla. 4th DCA 2006).

271

49

the court did comment on Strawsers lack of a criminal record and his age and immaturity at the time of the crimes. The trial court also noted that the recommendations of the arresting detective and the pretrial release officer were for a strictly probationary sentence. On appeal, the Fourth District upheld the departure on the basis that there was testimony in the record, accepted by the trial court, concerning Strawsers youth, remorse, and immaturity to support the courts finding that the abuse was committed in an unsophisticated manner and reflected immaturity, that there was also evidence of Strawsers lack of prior criminal history, and that, taken as a whole, the record reflected the required support for the downward departure.272 1.9.6. Nexus to offense Generally, mitigating circumstances supporting a downward departure ameliorate the level of the defendants culpability.273 Many judges require a nexus between the proffered mitigation evidence and the offense, and such appears in some of the statutory mitigators. Florida law does not, however, require that a proffered mitigating circumstance have any significant nexus to a defendants actions for the mitigator to be given weight.274 The defense is required to identify for the court specific nonstatutory mitigating circumstances it is attempting to establish.275 1.9.7. Limits on sentence mitigation Mitigation is not, however, without limits. The purpose of the sentencing guidelines and the Criminal Punishment Code is to establish a uniform set of standards to guide the sentencing judge in the sentence decision-making process so as to eliminate unwarranted variation in sentencing. It is the stated policy of the courts of Florida that sentencing alternatives should not be used to thwart the sentencing guidelines or Criminal Punishment Code.276 These limits are particularly manifest where the defendant to be sentenced has a history of substance abuse and the sentencing court is inclined to avoid imposing a prison sentence otherwise mandated by the former guidelines or Criminal Punishment Code. In former times, substance abuse

272

State v. Strawser, 921 So. 2d 705 (Fla. 4th DCA 2006).

Rafferty v. State, 799 So. 2d 243, 106 A.L.R.5th 783 (Fla. 2d DCA 2001); State v. D'Alexander, 496 So. 2d 1007, 1008 (Fla. 2d DCA 1986).
274

273

See, Cox v. State, 819 So. 2d 705 (Fla. 2002) (penalty phase in a first degree murder case). See, Lucas v. State, 568 So. 2d 18 (Fla. 1990).

275

See, Disbrow v. State, 642 So. 2d 740 (Fla. 1994) ([T]his Court has made it clear that sentencing alternatives should not be used to thwart the [sentencing] guidelines.); also, Jones v. State, 813 So. 2d 22 (Fla. 2002) (Wells, C.J., dissenting) (same); Kelly v. State, 739 So. 2d 1164 (Fla. 5th DCA 1999); Louissaint v. State, 727 So. 2d 403 (Fla. 3d DCA 1999); Tripp v. State, 622 So. 2d 941 (Fla. 1993); Johnson v. State, 596 So. 2d 495 (Fla. 5th DCA 1992); Dimilta v. State, 590 So. 2d 1074 (Fla. 2d DCA 1991); Herrin v. State, 568 So. 2d 920 (Fla. 1990); Poore v. State, 531 So. 2d 161 (Fla. 1988).

276

50

in and by itself was a sufficient reason to sentence below minimum levels otherwise mandated by the former guidelines or Criminal Punishment Code. In response, the Legislature rewrote Chapter 921 to provide that [t]he defendants substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor and does not, under any circumstances, justify a downward departure from the permissible sentencing range.277 This means that substance abuse or addiction cannot be the basis of a downward departure, even if couched in terms of rehabilitation.278 In 2009 the Legislature created a narrow exception to this prohibition for cases falling under section 921.0026(2)(m). As a result, a defendants substance abuse or seeming amenability to drug rehabilitation presently does not, under most circumstances, justify a downward departure from sentencing guidelines or the Criminal Punishment Code minimum sentence, and such a reason would contravene the plain language of the applicable statutory law.279 Given the legislative constraint on the use of substance abuse or addiction as a basis for departure in the past, some courts have tried to avoid such otherwise mandated prison sentences by suspending all or most of the incarcerative portion of the sentence. Absent other justification, however, it is an impermissible downward departure sentence when a defendant is subject to a minimum prison term under the former guidelines or Criminal Punishment Code and the trial court suspends the incarcerative portion of the defendants sentence and places the defendant on probation. If there is justification, however, such sentences will withstand appellate scrutiny and if not they will

277

921.0026, Fla. Stat. State v. henderson, 108 So. 3d 1137 (Fla. 5th DCA 2013) and cases cited therein.

278

921.0016(5), 921.0026(3), Fla. Stat.; see also, State v. Owens, 848 So. 2d 1199 (Fla. 1st DCA 2003); State v. Paulk, 842 So. 2d 212 (Fla. 3d DCA 2003); State v. Thompson, 844 So. 2d 814 (Fla. 5th DCA 2003); State v. Lazo, 761 So. 2d 1244 (Fla. 2d DCA 2000); State v. Ford, 739 So. 2d 629 (Fla. 3d DCA 1999).

279

51

be reversed.280 A trial court may not depart, in any event, from a minimum mandatory sentence unless the prosecutor recommends otherwise.281 A downward departure sentence that is the product of a negotiated plea agreement with the State can not be subsequently reduced or mitigated without the States consent. A defendant may not accept the benefit of the bargain without accepting its burden, and so a defendant cannot use a

State v. Grayson, 916 So. 2d 51 (Fla. 2d DCA 2005) (when Criminal Punishment Code worksheet recommends minimum prison sentence and, instead, trial court suspends incarcerative portion of sentence and places defendant on probation, sentence constitutes downward departure); State v. Harvey, 909 So. 2d 989 (Fla. 5th DCA 2005) (defendant's suspended sentence conditioned on completion of inpatient treatment at drug rehabilitation facility was not functional equivalent of incarceration, in violation of statutes forbidding downward departure of a sentence due to a defendants substance addiction); State v. White, 842 So. 2d 257 (Fla. 1st DCA 2003); State v. Brannum, 876 So. 2d 724 (Fla. 5th DCA 2004); see, State v. VanBebber, 848 So. 2d 1046 (Fla. 2003) (downward departure sentence imposed when guidelines called for a prison sentence of 175.9 to 240 months and defendant sentenced to 200 months incarceration suspended upon completion of fifteen years of probation); State v. Tyrrell, 807 So. 2d 122 (Fla. 5th DCA 2002) (Because the prison sentences were suspended, the sentences fall below the lowest permissible sentence and are treated as downward departure sentences.); State v. Gilson, 800 So. 2d 727 (Fla. 5th DCA 2001) (when scoresheet permissible range was 50.7 months to 49 years incarceration and defendant sentenced to 50.7 months in prison suspended on condition of successful completion of two years on community control followed by three years on probation; sentence was downward departure requiring sufficient reasons for departure); State v. Clay, 780 So. 2d 269 (Fla. 5th DCA 2001); Richie v. State, 777 So. 2d 977 (Fla. 2d DCA 1999) (sentence within guideline range but with portion suspended constituted downward departure); State v. White, 755 So. 2d 830 (Fla. 5th DCA 2000) (departure sentence had been imposed where recommended guidelines sentence was 3050 months' incarceration and trial court imposed sentence of 35 months' incarceration suspended with credit for 517 days time served followed by five years drug offender probation); State v. Bray, 738 So. 2d 962, 963 (Fla. 2d DCA 1999) (Suspending the incarcerative portion of a sentence, as the court did in the present case, is appropriate if a valid reason for a downward departure exists.); State v. Norris, 724 So. 2d 630 (Fla. 5th DCA 1998) (when sentencing guidelines required sentence of 64100 months in prison and defendant sentenced to 70 months in prison, suspended upon completion of probation and attendance at six-month residential drug program, trial judge was required to state sufficient reasons for downward departure sentence); State v. Whiting, 711 So. 2d 1212 (Fla. 2d DCA 1998) (downward departure sentence imposed when guidelines sentencing range was 915 years in prison and defendant sentenced to 10 years' incarceration suspended upon completion of probation); State v. Licea, 707 So. 2d 1155 (Fla. 2d DCA 1998) (downward departure sentence imposed requiring sufficient reason for the departure when sentencing guidelines range was 36.7561.25 months state prison and defendant received sentence of three years state prison, suspended, and one year jail followed by two years community control); State v. Powell, 703 So. 2d 444 (Fla. 1997) (as long as there exists a valid reason for a downward departure, a trial court may impose a true split sentence in which the entire period of incarceration is suspended); State v. Solomon, 667 So. 2d 937 (Fla. 2d DCA 1996) (defendant received downward departure sentence when guidelines scoresheet reflected a range of 61.35102.5 months and trial court sentenced him to eight years in prison, suspended, and two years community control to be followed by three years probation); Salemi v. State, 636 So. 2d 824, 825 (Fla. 2d DCA 1994) (suspended sentence was technically a one-cell upward departure from the guidelines, although suspension had the effect of providing a significant downward departure). State v. Andrews, 875 So. 2d 686 (Fla. 4th DCA 2004) (trial court may not depart below three year minimum mandatory sentence for aggravated assault on a law enforcement officer); Kelley v. State, 821 So. 2d 1255 (Fla. 4th DCA 2002) (drug trafficking); State v. Cotton, 769 So. 2d 345 (Fla. 2000) (trial court has no discretion to depart below minimum mandatory PRR sentence when prosecutor seeks PRR sentencing of qualified defendant); State v. Randall, 627 So. 2d 571 (Fla. 2d DCA 1993) (certain types of drug sales); Adderly v. State, 605 So. 2d 459 (Fla. 1992); Scates v. State, 603 So. 2d 504, 77 Ed. Law Rep. 596 (Fla. 1992).
281

280

52

Rule 3.800(c) motion to evade any of the terms of a negotiated plea. A court cannot get around the terms of a negotiated plea through a modification of a defendants sentence at a later date, and such a change of the defendants sentence is reversible error.282 Interpretation of sentencing law by appellate courts has defined additional limits on departure sentencing, including but not limited to the following examples: Judicial determination that the State would not be able to meet its burden of proof. Such could only be made after a trial and an acquittal or after the granting of a motion made by the defendant pursuant to Fla. R. Crim. P. 3.190(c)(4).283 Disagreement on the part of the sentencing judge with the jurys verdict.284 The absence of a prior criminal record or criminal involvement for a period of time.285 Indeed, the complete absence of a prior record does not afford such a basis since the absence is already factored into the presumptive sentencing guidelines.286 Judicial determination that the recommended sentence does not reflect an appropriate sanction in light of the facts of the case. The Florida Supreme Court held in Scott v. State287 that a trial courts written finding that a recommended guidelines sentence is insufficient may never serve as a reason for departure unless there is at least one clear and convincing reason for departure in which case such a statement [i.e., that the guidelines sentence is inappropriate] should be considered the trial courts written conclusion that departure is necessary based on the valid reasons given. . . . The reason that the recommended sentence does not reflect an appropriate sanction in light of

282

State v. Szempruch, 935 So. 2d 66 (Fla. 2d DCA 2006).

State v. Perez, 802 So. 2d 1167 (Fla. 3d DCA 2001) (reservations on the part of the trial court about whether the State could prove its case is not a valid reason for a downward departure); Cf. State v. Wright, 473 So. 2d 268, 27172 (Fla. 1st DCA 1985). Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988); State v. Joiner, 498 So. 2d 1017 (Fla. 5th DCA 1986) (a judges personal view of the lack of credibility of the testimony is not a clear and convincing reason for a downward departure where the jury has determined otherwise). State v. Baker, 713 So. 2d 1027 (Fla. 2d DCA 1998), opinion quashed, 733 So. 2d 992 (Fla. 1999) (lack of criminal record); State v. Scaife, 676 So. 2d 1035 (Fla. 5th DCA 1996); Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988); Sanders v. State, 510 So. 2d 296, 297 (Fla. 1987); State v. Green, 511 So. 2d 734 (Fla. 2d DCA 1987); State v. Taylor, 482 So. 2d 578 (Fla. 5th DCA 1986); State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985). State v. Hinson, 855 So. 2d 119 (Fla. 1st DCA 2003) (living at liberty for six and one-half years, solely due to leaving the area and successfully avoiding arrest and living as a fugitive on an outstanding warrant, is not a valid ground on which to depart downward); State v. Green, 511 So. 2d 734 (Fla. 2d DCA 1987); State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985); see, State v. McMullen, 529 So. 2d 821 (Fla. 3d DCA 1988).
287 286 285 284

283

Scott v. State, 508 So. 2d 335, 337 (Fla. 1987).

53

the facts of the case, is clearly an expression of judicial dissatisfaction with the recommended guidelines sentence and cannot be a basis for departure.288 More specifically, a trial court may not depart downward based on its belief that the lowest permissible sentence is too harsh in accounting for the defendants prior record because the Criminal Punishment Code has already taken the defendants prior record into account; a downward departure on this basis represents nothing more than the trial courts disagreement with the weight the Criminal Punishment Code has given to prior convictions.289 Similarly, a finding that the defendant has suffered enough for his or her crime because of related sentences is insufficient to support a downward departure.290 The presumptive minimum sentence exceeds the statutory maximum for the offense.291 In drug offenses, judicial determination that the quantity of drugs involved was minuscule.292 The recommendation of a law enforcement officer or probation officer.293 The desire of the sentencing judge to place the defendant under supervision so that the judge can exercise more control over the defendant.294 The fact that the defendant harmed no one and failed to commit additional crimes.295 The absence of violence or danger to others does not constitute a valid ground for departure, because that
288

Scott v. State, 508 So. 2d 335, 337 (Fla. 1987); see, State v. Whiteside, 56 So. 3d 799 (Fla. 2d DCA 2011); State v. McMullen, 529 So. 2d 821 (Fla. 3d DCA 1988). State v. Valdes, 842 So. 2d 859 (Fla. 2d DCA 2003); see also, State v. Lerman, 624 So. 2d 849 (Fla. 2d DCA 1993) (trial courts departure on basis that defendants case was old and, if he had been sentenced earlier, he would have been serving the sentence in this case concurrently with his federal prison sentence reflects the trial courts disagreement with the guidelines and is invalid); State v. Baker, 498 So. 2d 1031 (Fla. 1st DCA 1986).
290 289

State v. Lacey, 553 So. 2d 778 (Fla. 4th DCA 1989). State v. Hall, 47 So. 3d 361 (Fla. 2d DCA 2010); 921.0024(2), Fla. Stat.

291

See, Atwaters v. State, 519 So. 2d 611 (Fla. 1988) (quantity of drugs involved in a crime may not be utilized as a proper reason to support departure from the sentencing guidelines). See, Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988) (recommendation against prison by state troopers who investigated crime not a valid reason for departure); Montgomery v. State, 489 So. 2d 1225 (Fla. 5th DCA 1986) (recommendation of a probation officer was not a valid reason for a departure sentence). Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988); see also, Kendricks v. State, 508 So. 2d 532 (Fla. 2d DCA 1987) (trial courts imposition of probation in order to have more control over defendant invalid reason for downward departure); State v. Daughtry, 505 So. 2d 537 (Fla. 4th DCA 1987) (fact that departure sentence keeps defendant longer under judicial control would not be acceptable reason for departure).
295 294 293

292

State v. Stanard, 859 So. 2d 572 (Fla. 5th DCA 2003).

54

factor is already considered in arriving at the presumptive Criminal Punishment Code or guidelines sentence.296 The fact that the defendant could have harmed the victim but did not,297 or committed the offense less heinously than other defendants.298 The fact that the victims were family members or loved ones and that a prison sentence would increase the hardship on those victims. The legislature did not intend lesser punishments when the victims of offenses are family members or loved ones,299 or to punish those with families to support less than those without families.300 The fact that the offense was committed when the defendant was a young adult.301 The fact that the defendant suffers from a physical infirmity or defect.302 Note, however, that a departure may be granted if the defendant requires specialized treatment for a physical disability that is not available within the Department of Corrections, and the defendant is amenable to treatment.303 The fact that the defendant had never been sent to prison before.304 The defendants forthrightness with the court.305

296

State v. Green, 511 So. 2d 734 (Fla. 2d DCA 1987); State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA

1985).
297

State v. Thompkins, 113 So. 3d 95 (Fla. 5th DCA 2013). State v. Subido, 925 So. 2d 1052 (Fla. 5th DCA 2006). Rafferty v. State, 799 So. 2d 243, 106 A.L.R.5th 783 (Fla. 2d DCA 2001).

298

299

Cf. State v. Bray, 738 So. 2d 962 (Fla. 2d DCA 1999) (holding that the fact that a defendant had a child to support did not support a downward departure).
301

300

See, State v. McMullen, 529 So. 2d 821 (Fla. 3d DCA 1988). State v. Thomas, 516 So. 2d 1058 (Fla. 3d DCA 1987) (defendants blindness in one eye). Sec. 921.0026(2)(d).

302

303

State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985) (The fact that this robber had never been sentenced to prison before is a compelling reason to do so now.).
305

304

State v. Thomas, 516 So. 2d 1058 (Fla. 3d DCA 1987).

55

 An expressed or indicated willingness to accept punishment and pay the debt to society.306 The willingness of the defendant to accept responsibility by entering a plea in exchange for a downward departure sentence.307 Saving the taxpayers money.308 The fact that the defendant paid the court-ordered restitution for the cases in which he or she was serving probation at the time he or she committed new felony offenses.309 The fact (or assertion) that the defendants conviction has caused, or would cause, an adverse impact on the defendants professional career or make it difficult for the defendant to regain employment.310 Pregnancy on the part of the defendant or the defendants girlfriend or spouse.311 A defendants need to support a child outweighing the need for prison.312 Representations by defense counsel that a defendant has already received a downward departure in another county.313

306

State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985). State v. Hall, 47 So. 3d 361 (Fla. 2d DCA 2010).

307

Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988); State v. Peters, 500 So. 2d 704 (Fla. 1st DCA 1987) (concern for social cost of incarceration not valid reason for departure sentence). State v. Pita, 54 So. 3d 557 (Fla. 3d DCA 2011), citing State v. Walters, 12 So. 3d 298 (Fla. 3d DCA 2009) (holding that the law does not excuse the consequences of a theft based on a thiefs ability to make his victim monetarily whole). State v. Johns, 576 So. 2d 1332 (Fla. 5th DCA 1991) (law enforcement officer); see, State v. Lacey, 553 So. 2d 778 (Fla. 4th DCA 1989) (All defendants suffer the consequences of a criminal conviction. The sentencing guidelines do not provide special treatment for the trained, educated, or licensed. To achieve equality in sentencing, trial judges must be blind to the color of a defendant's collar.). State v. Licea, 707 So. 2d 1155 (Fla. 2d DCA 1998) (Defendants certainly would seek to impregnate girlfriends or spouses, or become impregnated, if they believed that it would have an impact on an impending sentence, which is an unconscionable scenario.).
312 311 310 309

308

State v. Chapman, 805 So. 2d 906 (Fla. 2d DCA 2001). See, State v. Barnes, 753 So. 2d 605 (Fla. 2d DCA 2000).

313

56

 Mutual mistake as to the minimum sentencing range.314 Time served on a reversed conviction in an unrelated criminal case.315 Analogizing departure grounds found in the Federal Sentencing Guidelines that are not found in Florida statutory law.316 Note, however, that even if some of the courts stated reasons for departure are insufficient, only one valid reason is necessary to sustain a departure.317 If, however, the court's written specification of reasons for departure from the recommended guidelines sentence or Criminal Punishment Code presumptive minimum is permeated with impermissible considerations, and it is not clear beyond a reasonable doubt that the court would have imposed the same sentence in the absence of such invalid considerations, the sentence is subject to reversal on appeal.318 A trial court may not, in any event, enunciate new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by an appellate court.319 Where the defendant and the State enter into a plea agreement that results in a downward departure sentence and the defendant files a timely motion to reduce or modify the sentence pursuant to Fla. R. Crim. P. 3.800(c), the State is authorized pursuant to section 924.07(1)(i) to appeal any modification or reduction that is a downward departure from the minimum sentence that could have been imposed on the defendant absent the plea agreement. A negotiated departure to which the State is a party is a quid pro quo and the defendant cannot accept the benefit of the bargain without accepting its burden: To allow a defendant to use a Rule 3.800(c) motion to evade a negotiated plea would discourage the State from entering into plea bargains in the future.320

314

State v. Fulks, 884 So. 2d 1083 (Fla. 2d DCA 2004) (mutual mistake of law is not a valid basis for

departure).
315

State v. Stanton, 781 So. 2d 1129 (Fla. 3d DCA 2001). State v. Hall, 47 So. 3d 361 (Fla. 2d DCA 2010). State v. Randall, 746 So. 2d 550, 552 (Fla. 5th DCA 1999). State v. Peters, 500 So. 2d 704 (Fla. 1st DCA 1987). Shull v. Dugger, 515 So. 2d 748 (Fla. 1987).

316

317

318

319

State v. Brooks, 890 So. 2d 503 (Fla. 2d DCA 2005) (defendants progress and conduct while in prison do not comprise sufficient changes in circumstances as to provide a basis for a defendant to evade the obligations of his or her negotiated plea).

320

57

 1.9.8. Resentencing on remand after reversal of a downward departure The original guidelines sentencing scheme required a trial court to provide a contemporaneous written explanation for the imposition of any departure sentencing at a sentencing hearing. Fla. R. Crim. P. 3.701(b)(6) provides in relevant part that, while the sentencing guidelines are designed to aid the judge in the sentencing decision and are not intended to usurp judicial discretion, departures from the presumptive sentences established in the guidelines shall be articulated in writing and made when circumstances or factors reasonably justify the aggravation or mitigation of the sentence.321 Section 921.001(6) simply provides that any sentence imposed outside the range recommended by the guidelines must be explained in writing by the trial court judge.322 The Florida Supreme Court has interpreted these provision to require a trial court to provide a contemporaneous written explanation for the imposition of any departure sentence at a sentencing hearing.323 The Florida Supreme Court has also ruled that, generally, when all of the reasons stated by the trial court in support of departure are found invalid, resentencing following remand must be within the presumptive guidelines sentence. In other words, a trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by an appellate court. The Supreme Court has reasoned that the better policy requires the trial court to articulate all of the reasons for departure in the original order, to hold otherwise may needlessly subject the defendant to unwarranted efforts to justify the original sentence and also might lead to absurd results such as numerous resentencings as, one by one, reasons are rejected in multiple appeals.324 This rule has not, however, been extended to defendants sentenced under the Criminal Punishment Code, and on remand for sentencing a trial court is permitted to impose a downward departure when the trial court finds a valid basis for departure as prescribed under the Code.325 2. Enhancement of penalty and reclassification of offense A significant source of confusion in sentencing arises over the applicability of matters that increase the duration of a defendants exposure to imprisonment, divided into the categories of enhancements and reclassifications. Note that there is a distinction between enhancement of penalty laws and reclassification of offense laws, even though in some instances such a distinction may be without a difference in its practical effect. Enhancement is commonly associated with the

321

Fla. R. Crim. P. 3.701(b)(6). 921.001(6), Fla. Stat. Ree v. State, 565 So. 2d 1329 (Fla. 1990).

322

323

Shull v. Dugger, 515 So. 2d 748 (Fla. 1987); see also, Owens v. State, 598 So. 2d 64 (Fla. 1992); Gibson v. State, 661 So. 2d 288 (Fla. 1995).
325

324

Jackson v. State, 64 So. 3d 90 (Fla. 2011).

58

province of the judge in sentencing. With enhancements, the charging document must plead specifically the basis for a requested enhancement and the statute authorizing the requested enhancement; mere reference in the charging document to the statute is insufficient to provide notice to the defendant that the State is seeking the specific enhancement.326 Note that absent language in the applicable statutory law referencing attempts, attempts of qualifying crimes are not themselves qualifying crimes for purposes of reclassification of offense or enhancement of penalty.327 In the calculation of sentence points on a Criminal Punishment Code scoresheet, for example, possible mathematical enhancements include: tripling the primary offense points if the defendants prior record includes conviction for a capital offense; the addition of victim injury points, prior record points, legal status points, firearm points, prior serious felony points; and multiplication of total sentence points for the enhancements for law enforcement protection, drug trafficking, grand theft motor vehicle, gang membership, and domestic violence. Examples of other types of enhancements are found in the recidivist minimum mandatory sentencing provisions that accompany designation of the defendant as a prison releasee reoffender, habitual felony offender, habitual violent felony offender, three-time violent felony offender, and violent career criminal pursuant to section 775.084, Fla. Stat. An enhancement statute thus, unlike a reclassification statute, does not add any element that would create a substantive crime.328 Reclassification speaks to the degree of the crime charged, and appears to attach at the time the indictment or information is filed and not at the time a conviction is obtained. Section 775.081, Fla. Stat., for example, classifies felonies; section 775.087(1), Fla. Stat., on the other hand, reclassifies all felonies with specified exceptions when certain conditions attend to the commission of the crimes.329 Another example of reclassification occurs when the defendant wears a mask while committing the underlying offense.330 Reclassifications and enhancements operate independently of one another and are not alternative methods of enhancement.331 As the court in Perez v. State observed, sentence enhancement by reclassification of the crime to a higher degree increases the punishment by

See, Freudenberger v. State, 940 So. 2d 551 (Fla. 2d DCA 2006); Inmon v. State, 932 So. 2d 518 (Fla. 4th DCA 2006).
327

326

See, Tambriz-Ramirez v. State, 112 So. 3d 767 (Fla. 4th DCA 2013).

See, Mills v. State, 822 So. 2d 1284 (Fla. 2002) (holding that 784.07, Fla. Stat., is a reclassification, and not an enhancement, statute).
329

328

Cooper v. State, 455 So. 2d 588 (Fla. 1st DCA 1984). 775.0845, Fla. Stat.

330

See, State v. Smith, 470 So. 2d 764 (Fla. 5th DCA 1985), decision approved, 485 So. 2d 1284 (Fla. 1986); Haywood v. State, 466 So. 2d 424 (Fla. 4th DCA 1985); Perez v. State, 431 So. 2d 274 (Fla. 5th DCA 1983), decision approved, 449 So. 2d 818 (Fla. 1984).

331

59

authorizing a greater maximum penalty whereas imposition of a three-year mandatory minimum sentence merely ensures a minimum period of incarceration.332 For example, reclassification statutes and those imposing minimum mandatory sentences, although both may be predicated upon the defendants use or possession of a firearm, operate independently and not alternatively. Thus no double jeopardy problem arises from the application of both provisions in a given case.333 Stated another way, enhanced penalty crimes are still subject to the mandatory minimum sentence.334 Statutory enhancement does not make a ranked offense an unlisted offense under section 921.0023, Fla. Stat.335 There are circumstances in which more than one sentencing enhancement can be applied without violating the principle of double jeopardy. With respect to more than one enhancement, the double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.336 Where two enhancement provisions serve different purposes and the legislature has not indicated that the provisions are to be mutually exclusive, both enhancements may be imposed.337 There is also no double jeopardy prohibition against applying an enhancement to a felony that has already been reclassified.338 When dealing with situations in which both reclassification and enhancement apply, as where the defendant is convicted of an attempted crime that involves the use of a firearm, the court should sequentially (1) reduce the classification of the underlying crime due to the attempt, and then (2) apply the weapon enhancement to increase the classification.339 Enhancements and reclassifications are subject to the rule of Apprendi340 that any fact that by law increases the penalty for a crime is an element that must be submitted to the jury and found beyond

Perez v. State, 431 So. 2d 274, 275 (Fla. 5th DCA 1983), decision approved, 449 So. 2d 818 (Fla. 1984); see, Williams v. State, 517 So. 2d 681 (Fla. 1988).
333

332

Gibbons v. State, 543 So. 2d 860 (Fla. 2d DCA 1989).

See, e.g., Maddox v. State, 461 So. 2d 176 (Fla. 1st DCA 1984) (armed robbery); State v. Lopez, 408 So. 2d 744 (Fla. 3d DCA 1982) (carrying a firearm in the course of a robbery).
335

334

Williams v. State, 784 So. 2d 524 (Fla. 4th DCA 2001). Fussell v. State, 813 So. 2d 130 (Fla. 2d DCA 2002). See, State v. Whitehead, 472 So. 2d 730 (Fla. 1985). See, Roberts v. State, 923 So. 2d 578 (Fla. 5th DCA 2006). Goutier v. State, 692 So. 2d 978 (Fla. 2d DCA 1997). Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

336

337

338

339

340

60

a reasonable doubt, unless admitted or stipulated to by the defendant. This includes all minimum mandatory sentencing.341 2.1. Proof of prison release date for enhancement The State has the burden of proving, by a preponderance of the evidence, a defendants prison release date for enhancement under section 775.082(9) as a Prison Releasee Reoffender (PRR) or under section 775.084 as a Habitual Felony Offender (HFO), Habitual Violent Felony Offender (HVFO), ThreeTime Violent Felony Offender, or Violent Career Criminal (VCC). The State may meet this burden with any competent and sufficient evidence. Where, however, nothing more than inadmissible hearsay received over specific objection is adduced in order to prove a prison release date necessary for sentence enhancement, the enhanced sentence cannot withstand attack on direct appeal.342 A Department of Corrections website printout relating to the defendant with an entry showing when the defendant was out of custody, for example, is not self-authenticating, is not admissible under the public records exception to the hearsay rule, and so cannot be used to establish the date of the defendants release from prison.343 The two evidentiary rules most relevant to the determination of date of release are sections 90.803(8) and 90.902(4). Section 90.803(8), dealing with the public records exception to the hearsay rule, provides that the provision of section 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness: Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. This section goes on to provide that the criminal case exclusion shall not apply to an affidavit otherwise admissible under section 316.1934 or section 327.354.344 Section 90.902(4), pertaining to self-authentication, provides that a copy of an official public record, report, or entry, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification by certificate complying with

341

See, Alleyne v. United States, 133 S. Ct. 2151 (2013). Gray v. State, 910 So. 2d 867 (Fla. 1st DCA 2005). Campbell v. State, 949 So. 2d 1093 (Fla. 3d DCA 2007). 90.803(8), Fla. Stat.

342

343

344

61

subsection (1),345 subsection (2),346 or subsection (3)347 or complying with any act of the Legislature or rule adopted by the Supreme Court.348 This means that when a certified copy of a document is offered instead of the document itself, authentication is controlled by section 90.902(4). In order for a certified copy to be self-authenticating under section 90.902(4), it must be certified by the custodian of the document (certified as correct by the custodian or other person authorized to make the certification) and that the copy is correct and that the person has custody of the original (actually recorded or filed in a public office).349 A Department of Corrections computer printout called a Crime and Time Report, which states when a defendant entered and left the Department of Corrections, is admissible under the business records exception to the hearsay rule, and is not testimonial hearsay under Crawford v. Washington350 to establish the defendants prison release date for the purposes of enhanced

A document bearing: (a) A seal purporting to be that of the United States or any state, district, commonwealth, territory, or insular possession thereof; the Panama Canal Zone; the Trust Territory of the Pacific Islands; or a court, political subdivision, department, officer, or agency of any of them; and (b) A signature by the custodian of the document attesting to the authenticity of the seal. 90.902(1), Fla. Stat. A document not bearing a seal but purporting to bear a signature of an officer or employee of any entity listed in subsection (1), affixed in the officers or employees official capacity. 90.902(2), Fla. Stat. An official foreign document, record, or entry that is: (a) Executed or attested to by a person in the person's official capacity authorized by the laws of a foreign country to make the execution or attestation; and (b) Accompanied by a final certification, as provided herein, of the genuineness of the signature and official position of: 1. The executing person; or 2. Any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation." The final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States or a diplomatic or consular official of the foreign country assigned or accredited to the United States. When the parties receive reasonable opportunity to investigate the authenticity and accuracy of official foreign documents, the court may order that they be treated as presumptively authentic without final certification or permit them in evidence by an attested summary with or without final certification. 90.902(3), Fla. Stat.
348 347 346

345

90.902(4), Fla. Stat. See, Christie v. State, 951 So. 2d 1029 (Fla. 4th DCA 2007); 90.902(4), Fla. Stat. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv. 1077

349

350

(2004).

62

sentencing, so long as the prosecutor establishes the state law predicate to admission.351 Computer printouts, like business records, are admissible if the records custodian or other qualified witness is available to testify as to manner of preparation, reliability and trustworthiness of the product.352 In appropriate circumstances, a printout may also be admissible as a properly certified copy of an official public record.353 A letter from the Department of Correction stating the date the defendant was released from prison is, by itself, not admissible under either the business- or public-records exceptions to the hearsay rule. There is, however, no applicable legal impediment to the State and the Department of Corrections using a signed release-date letter, written under seal, as a means of authenticating an attached Department of Corrections Crime and Time Report, which then renders the entire report admissible as a public record.354 A statement in a letter or affidavit from a correctional services administrator or records management analyst that specified that it was given under seal and stating that the defendant was last released on a specific qualifying offense, which was within the period for sentencing for enhancement, is admissible under the public records exception to the hearsay rule, in which the availability of the declarant is immaterial, and the letter or affidavit is sufficient to establish the criminal history predicate for a recidivist-enhanced sentence; it is not necessary to attach copies or identify such physical papers or electronic data from which the declarant derived the criminal history information contained in the statement.355 The use of an uncertified printout from the website of the Department of Corrections is neither self-authenticating nor admissible under the public records exception to the hearsay rule, and so is insufficient by itself to establish a defendants release date from prison.356 The State may not, in any event, rely solely on hearsay to prove a defendants release from prison.357

351

Desue v. State, 908 So. 2d 1116 (Fla. 1st DCA 2005).

Cofield v. State, 474 So. 2d 849, 851 (Fla. 1st DCA 1985) (adopting rule as stated in Pickrell v. State, 301 So. 2d 473, 474 (Fla. 2d DCA 1974)); see, Desue v. State, 908 So. 2d 1116 (Fla. 1st DCA 2005). See, 90.902(4), Fla. Stat.; Charles W. Ehrhardt, Florida Evidence 902.5, at 966 (2005 ed.) (explaining that to be self-authenticating under Sec. 90.902(4), the custodian of the document, or other person authorized by statute to make a certification, must certify that the copy is correct and that the person has custody of the original. . . . The custodians signature must follow the statement). Compare, King v. State, 590 So. 2d 1032, 1033 (Fla. 1st DCA 1991) (holding probation officers testimony regarding defendant's release date, based on an unauthenticated Department of Corrections computer printout, was inadmissible hearsay, and that [w]ithout the improperly admitted hearsay, the evidence is legally insufficient to support the trial courts finding that appellant is an habitual felony offender).
354 353

352

Yisrael v. State, 993 So. 2d 952 (Fla. 2008), as revised on denial of reh'g, (July 10, 2008).

See, Ward v. State, 965 So. 2d 308 (Fla. 3d DCA 2007), review granted, decision quashed, 7 So. 3d 520 (Fla. 2009); Cameron v. State, 943 So. 2d 938 (Fla. 4th DCA 2006); Yisrael v. State, 938 So. 2d 546 (Fla. 4th DCA 2006); 90.803(8), Fla. Stat.
356

355

Whitley v. State, 2009 WL 3126159 (Tex. App. Texarkana 2009). Glover v. State, 871 So. 2d 1025 (Fla. 1st DCA 2004).

357

63

Even where such records are deemed admissible to prove date of release, however, the State still has the burden of proving the identity of the person released. Unless such documents are accompanied by certified fingerprints, a photograph of the defendant, or some other competent evidence of identity, the State cannot meet its burden of proof.358 A party can stipulate to qualification for recidivist enhancement, where he or she in fact qualifies, and an in-court concession to this effect by counsel can satisfy the States burden.359 Once the State has met its burden, the burden shifts to the defendant to prove exceptional facts making the enhanced sentencing inapplicable.360 2.2. Criminal gang The term criminal gang means a formal or informal ongoing organization, association, or group that has as one of its primary activities the commission of criminal or delinquent acts, and that consists of three or more persons who have a common name or common identifying signs, colors, or symbols including, but not limited to, terrorist organizations and hate groups.361 Gang membership alone is not sufficient to declare a person a member of a criminal gang.362 The State must also demonstrate a pattern of criminal gang activity.363 As used in section 874.03, ongoing means that the organization was in existence during the time period charged in a petition, information, indictment, or action for civil injunctive relief,364 and primary activities means that a criminal gang spends a substantial amount of time engaged in such activity, although such activity need not be the only, or even the most important activity, in

Bodie v. State, 983 So. 2d 1196 (Fla. 2d DCA 2008); See, Johnson v. State, 936 So. 2d 672, 674 (Fla. 4th DCA 2006) (finding that although the State did not prove by fingerprints that prior convictions were those of the defendant, the records submitted contained a photograph of the defendant, which was sufficient to prove identity); Keith v. State, 844 So. 2d 715, 716 (Fla. 2d DCA 2003) (noting that a certified copy of a judgment and sentence were sufficient to prove identity for purposes of PRR sentencing). Smith v. State, 935 So. 2d 1223 (Fla. 3d DCA 2006); see, Greenlee v. State, 591 So. 2d 310 (Fla. 2d DCA 1991); Jefferson v. State, 571 So. 2d 70 (Fla. 1st DCA 1990). Brown v. State, 789 So. 2d 366 (Fla. 2d DCA 2001); Smith v. State, 753 So. 2d 703 (Fla. 5th DCA 2000), decision approved, 787 So. 2d 830 (Fla. 2001).
361 360 359

358

874.03(1), Fla. Stat. See, S.L. v. State, 708 So. 2d 1006 (Fla. 2d DCA 1998). Ariano v. State, 961 So. 2d 366 (Fla. 4th DCA 2007); see, S.L. v. State, 708 So. 2d 1006 (Fla. 2d DCA

362

363

1998).
364

874.03(1)(a), Fla. Stat.

64

which the criminal gang engages.365 A criminal gang associate means a person who: (a) admits to criminal gang association; or (b) meets any single defining criterion for criminal gang membership described in subsection 874.03(3).366 A criminal gang member is a person who meets two or more of the following criteria: (a) Admits to criminal gang membership. (b) Is identified as a criminal gang member by a parent or guardian. (c) Is identified as a criminal gang member by a documented reliable informant. (d) Adopts the style of dress of a criminal gang. (e) Adopts the use of a hand sign identified as used by a criminal gang. (f) Has a tattoo identified as used by a criminal gang. (g) Associates with one or more known criminal gang members. (h) Is identified as a criminal gang member by an informant of previously untested reliability and such identification is corroborated by independent information. (i) Is identified as a criminal gang member by physical evidence. (j) Has been observed in the company of one or more known criminal gang members four or more times. Note that observation in a custodial setting requires a willful association. It is the intent of the legislature to allow this criterion to be used to identify gang members who recruit and organize in jails, prisons, and other detention settings. (k) Has authored any communication indicating responsibility for the commission of any crime by the criminal gang.367 Where a single act or factual transaction satisfies the requirements of more than one of the criteria in subsection 874.03(3), each of those criteria has thereby been satisfied for the purposes of the statute.

365

874.03(1)(b), Fla. Stat. 874.03(2), Fla. Stat. 874.03(3), Fla. Stat.

366

367

65

Criminal gang-related activity in this context means: (a) an activity committed with the intent to benefit, promote, or further the interests of a criminal gang, or for the purposes of increasing a person's own standing or position within a criminal gang;368 (b) an activity in which the participants are identified as criminal gang members or criminal gang associates acting individually or collectively to further any criminal purpose of a criminal gang;369 (c) an activity that is identified as criminal gang activity by a documented reliable informant;370 or (d) an activity that is identified as criminal gang activity by an informant of previously untested reliability and such identification is corroborated by independent information.371 Electronic communication has the meaning provided in section 934.02 and includes, but is not limited to, photographs, video, telephone communications, text messages, facsimile, electronic mail messages as defined in section 668.602, and instant message real-time communications with other individuals through the Internet or other means.372 Hate group means an organization whose primary purpose is to promote animosity, hostility, and malice against a person or persons or against the property of a person or persons because of race, religion, disability, sexual orientation, ethnicity, or national origin.373 Terrorist organization means any organized group engaged in or organized for the purpose of engaging in terrorism as defined in section 775.30, which definition does not prevent prosecution under this law of individuals acting alone.374 Upon a finding by the factfinder that the defendant committed the charged offense for the purpose of benefitting, promoting, or furthering the interests of a criminal gang, the penalty for any felony or misdemeanor, or any delinquent act in violation of law which would be a felony or misdemeanor if committed by an adult, may be enhanced. Penalty enhancement affects the applicable statutory maximum penalty only. Each of the findings required as a basis for such sentence must be found beyond a reasonable doubt.375 A misdemeanor of the second degree may be punished as if it were a misdemeanor of the first degree.376 A misdemeanor of the first degree may be punished as if it were a felony of the third degree. For purposes of sentencing under chapter 921 and determining incentive gain time eligibility under chapter 944, such offense is ranked in Level

368

874.03(4)(a), Fla. Stat. 874.03(4)(b), Fla. Stat. 874.03(4)(c), Fla. Stat. 874.03(4)(d), Fla. Stat. 874.03(5), Fla. Stat. 874.03(6), Fla. Stat. 874.03(7), Fla. Stat. 874.04, Fla. Stat. 874.04(1)(a), Fla. Stat.

369

370

371

372

373

374

375

376

66

1 of the offense severity ranking chart. The criminal gang multiplier in section 921.0024 does not apply to misdemeanors enhanced under section 874.04(1).377 A felony of the third degree may be punished as if it were a felony of the second degree.378 A felony of the second degree may be punished as if it were a felony of the first degree.379 A felony of the first degree may be punished as if it were a life felony.380 For purposes of sentencing under chapter 921 and determining incentive gain time for eligibility under chapter 944, such felony offense is ranked as provided in section 921.0022 or section 921.0023, and without regard to the penalty enhancement under section 874.04 (2).381 Where a person who has previously qualified or currently qualifies for the penalty enhancements provided for in section 874.04(1) owns or has in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or carries a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been: (1) convicted of a felony in the courts Florida; (2) found, in the courts of Florida, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age; (3) convicted of or found to have committed a crime against the United States which is designated as a felony; (4) found to have committed a delinquent act in another state, territory, or country that would be a felony if committed by an adult and which was punishable by imprisonment for a term exceeding one year and such person is under 24 years of age; or (5) found guilty of an offense that is a felony in another state, territory, or country and which was punishable by imprisonment for a term exceeding one year, the offense is a felony of the first degree, punishable by a term of years not exceeding life or as provided in section 775.082, section 775.083, or section 775.084.382 This provision does not apply to a person convicted of a felony whose civil rights and firearm authority have been restored.383 There are also recidivist provisions in Floridas criminal gang laws that can affect sentencing, such as apply to gang recruitment: A person who intentionally causes, encourages, solicits, or recruits another person to become a criminal gang member where a condition of membership or continued membership is the commission of any crime commits a felony of the third degree,

377

874.04(1)(b), Fla. Stat. 874.04(2)(a), Fla. Stat. 874.04(2)(b), Fla. Stat. 874.04(2)(c), Fla. Stat. 874.04, Fla. Stat. 790.23(4), Fla. Stat. 790.23(2), Fla. Stat.

378

379

380

381

382

383

67

punishable as provided in section 775.082, section 775.083, or section 775.084,384 except that a person who commits a second or subsequent violation commits a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.385 A person who intentionally causes, encourages, solicits, or recruits another person under 13 years of age to become a criminal gang member where a condition of membership or continued membership is the commission of any crime commits a felony of the second degree, punishable as provided in section 775.082, section 773.083, or section 775.084,386 except that a person who commits a second or subsequent violation commits a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084.387 Note that nothing in chapter 874 prohibits the arrest and prosecution of a criminal gang member under chapter 876, chapter 895, chapter 896, s. 893.20, or any other applicable provision of law except to the extent otherwise prohibited pursuant to a statutory or constitutional provision.388 2.3. Wearing a mask or hood A given criminal offense committed by a defendant over age 16 may be reclassified if the defendant wore a mask or hood during the commission of the crime. This reclassification scheme takes two separate crimes, the wearing of a mask or hood and the offense committed while the defendant was wearing the mask or hood, and combines them to effect reclassification of the offense committed while the defendant was wearing a mask or hood. The law against wearing a mask or hood is as follows: No person or persons over 16 years of age shall, while wearing any mask, hood, or device whereby any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer: 1. Enter upon, or be or appear upon any lane, walk, alley, street, road, highway, or other public way in this state;389 2. Enter upon, or be, or appear upon or within the public property of any municipality or county of the state;390
384

874.05(1)(a), Fla. Stat. 874.05(1)(b), Fla. Stat. 874.05(2)(a), Fla. Stat. 874.05(2)(b), Fla. Stat. 874.045, Fla. Stat. 876.12, Fla. Stat. 876.13, Fla. Stat.

385

386

387

388

389

390

68

3. Demand entrance or admission or enter or come upon or into the premises, enclosure, or house of any other person in any municipality or county of this state;391 4. Hold any manner of meeting, make any demonstration upon the private property of another unless such person or persons shall have first obtained from the owner or occupier of the property his or her written permission to so do.392 These provisions apply only if the person was wearing the mask, hood, or other device: 1. With the intent to deprive any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws or for the purpose of preventing the constituted authorities of this state or any subdivision thereof from, or hindering them in, giving or securing to all persons within this state the equal protection of the laws;393 2. With the intent, by force or threat of force, to injure, intimidate, or interfere with any person because of the persons exercise of any right secured by federal, state, or local law or to intimidate such person or any other person or any class of persons from exercising any right secured by federal, state, or local law;394 3. With the intent to intimidate, threaten, abuse, or harass any other person;395 or 4. While she or he was engaged in conduct that could reasonably lead to the institution of a civil or criminal proceeding against her or him, with the intent of avoiding identification in such a proceeding.396 The exemptions from these provisions are as follows: 1. Any person or persons wearing traditional holiday costumes;397

391

876.14, Fla. Stat. 876.15, Fla. Stat. 876.155(1), Fla. Stat. 876.155(2), Fla. Stat. 876.155(3), Fla. Stat. 876.155(4), Fla. Stat. 876.16(1), Fla. Stat.

392

393

394

395

396

397

69

2. Any person or persons engaged in trades and employment where a mask is worn for the purpose of ensuring the physical safety of the wearer, or because of the nature of the occupation, trade, or profession;398 3. Any person or persons using masks in theatrical productions, including use in Gasparilla celebrations and masquerade balls;399 4. Persons wearing gas masks prescribed in emergency management drills and exercises.400 The violation of sections 876.12876.15, except as provided in section 876.16, is a misdemeanor of the second degree.401 The felony or misdemeanor degree of any criminal offense, other than a violation of sections 876.12876.15, is reclassified to the next higher degree if, while committing the offense, the defendant was wearing a hood, mask, or other device that concealed his or her identity. In the case of a misdemeanor of the second degree, the offense is reclassified to a misdemeanor of the first degree.402 In the case of a misdemeanor of the first degree, the offense is reclassified to a felony of the third degree. For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, such offense is ranked in level 2 of the offense severity ranking chart.403 In the case of a felony of the third degree, the offense is reclassified to a felony of the second degree.404 In the case of a felony of the second degree, the offense is reclassified to a felony of the first degree.405 For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, a felony offense that is reclassified under section 775.0845 is ranked one level above the ranking under section 921.0012, section 921.0013, section 921.0022, or section 921.0023 of the offense committed.406

398

876.16(2), Fla. Stat. 876.16(3), Fla. Stat. 876.16(4), Fla. Stat. 876.21, Fla. Stat. 775.0845(1)(a), Fla. Stat. 775.0845(1)(b), Fla. Stat. 775.0845(2)(a), Fla. Stat. 775.0845(2)(b), Fla. Stat. 775.0845, Fla. Stat.

399

400

401

402

403

404

405

406

70

A defendants sentence cannot be reclassified under section 775.0845 without evidence establishing that the defendant personally wore a hood, mask, or other device that concealed his or her identity. Where the defendant did not wear a mask during the commission of the offense, the offense cannot be reclassified on the theory of constructive or vicarious identity concealment based on the conduct of the codefendant or codefendants.407 Section 775.0845 may be used to reclassify a second-degree felony to a first degree felony for purposes of habitualization, and such does not comprise an impermissible double enhancement.408 2.4. Evidencing prejudice while committing offense The penalty for any felony or misdemeanor must be reclassified as provided in section 775.085(1) if the commission of such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, national origin, homeless status, mental or physical disability, or advanced age of the victim.409 Mental or physical disability means that the victim suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, and has one or more physical or mental limitations that restrict the victims ability to perform the normal activities of daily living.410 Advanced age means that the victim is older than 65 years of age.411 Homeless status means that the victim (1) lacks a fixed, regular, and adequate nighttime residence, or (2) has a primary nighttime residence that is (a) a supervised publicly or privately operated shelter designed to provide temporary living accommodations or (b) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.412 A misdemeanor of the second degree is reclassified to a misdemeanor of the first degree.413 A misdemeanor of the first degree is reclassified to a felony of the third degree.414 A felony of the third degree is reclassified to a felony of the second degree.415 A felony of the second degree is

407

Wright v. State, 810 So. 2d 873 (Fla. 2002); see, State v. Rodriguez, 602 So. 2d 1270 (Fla. 1992). Williams v. State, 948 So. 2d 847 (Fla. 4th DCA 2007). 775.085(1)(a), Fla. Stat. 775.085(1)(b) 1, Fla. Stat. 775.085(1)(b) 2, Fla. Stat. 775.085(1)(b) 3, Fla. Stat. 775.085(1)(a) 1, Fla. Stat. 775.085(1)(a) 2, Fla. Stat. 775.085(1)(a) 3, Fla. Stat.

408

409

410

411

412

413

414

415

71

reclassified to a felony of the first degree.416 A felony of the first degree is reclassified to a life felony.417 Section 775.085(1) applies only to bias-motivated crimes.418 A bias motivated crime is any crime wherein the perpetrator intentionally selects the victim because of the victims race, color, ethnicity, religion or national origin.419 Application of this reclassification thus requires as one of its essential elements that the defendant intentionally selected the crime victim because of the victims race, color, ancestry, ethnicity, religion, sexual orientation, national origin, mental or physical disability, or advanced age.420 The statute requires that it is commission of the crime that must evidence prejudice, and the mere exhibition of prejudice during the commission of the crime is itself insufficient to trigger this reclassification.421 As with other reclassifications, the application of section 775.085(1) requires that the facts supporting reclassification be contained in the charging document and be submitted to the fact-finder and proved beyond a reasonable doubt.422 2.5. Sexual battery by multiple perpetrators Section 794.023, Floridas gang rape statute, provides that a violation of section 794.011 must be reclassified as provided if it is charged and proven by the prosecution that, during the same criminal transaction or episode, more than one person committed an act of sexual battery on the same victim. Under section 794.023, a felony of the second degree is reclassified to a felony of the first degree,423 and a felony of the first degree is reclassified to a life felony.424 Section 794.023 applies

416

775.085(1)(a) 4, Fla. Stat. 775.085(1)(a) 5, Fla. Stat. Groover v. State, 632 So. 2d 691 (Fla. 1st DCA 1994). State v. Stalder, 630 So. 2d 1072 (Fla. 1994). See, Bass v. State, 739 So. 2d 1243 (Fla. 5th DCA 1999); Richards v. State, 643 So. 2d 89 (Fla. 3d DCA

417

418

419

420

1994). State v. Stalder, 630 So. 2d 1072 (Fla. 1994); Dobbins v. State, 605 So. 2d 922 (Fla. 5th DCA 1992), decision approved, 631 So. 2d 303 (Fla. 1994).
422 421

Freudenberger v. State, 940 So. 2d 551 (Fla. 2d DCA 2006). 794.023(2)(a), Fla. Stat. 794.023(2)(b), Fla. Stat.

423

424

72

to principals.425 It does not apply to attempts.426 It does not apply, in any event, to life felonies or capital felonies.427 For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, a felony offense that is reclassified under section 794.023 is ranked one level above the ranking under section 921.0022 or section 921.0023 of the offense committed.428 In order to avail itself of this enhancement, the State must specifically charge the defendant under section 794.023.429 The operation of this statute against principals is illustrated by the case of Melvin Taylor. Taylor and a codefendant accosted the nineteen-year-old victim as she was walking along U.S. Highway 1 in Melbourne. They grabbed her by her arms and forced her to walk with them to an abandoned house where they climbed through a window. Taylor was the first to climb through the window, and while he was doing so, the victim attempted to flee. The codefendant stopped her and hit her with his fist, causing injury to her face. Once inside the house, Taylor held a piece of broken glass against the victims throat while the codefendant raped her. The two then reversed roles, and in the process the victims arms were cut. An examining physician testified that the victims injuries included a contusion to her right eye, a swollen cheek, a laceration on her neck, and multiple linear lacerations to both forearms. Taylor was found guilty of false imprisonment, sexual battery, and aiding and abetting sexual battery. The trial court scored the offense of aiding and abetting sexual battery as a first-degree felony rather than as a second-degree felony pursuant to section 794.023, Fla. Stat. (1991), and Taylor appealed to the Fifth District Court of Appeal, contending that the enhancement was an improper double enhancement because the existence of multiple perpetrators is inherent in a charge of aiding and abetting sexual battery. The Fifth District found no merit in Taylors argument that the conviction for aiding and abetting sexual battery should not have been enhanced from a second-degree felony to a first-degree felony. The Court held that, pursuant to section 777.011, Taylor was a principal in the first degree to a violation of section 794.011 and could be charged, convicted, and punished as though he had perpetrated the sexual battery himself and so,

Williams v. State, 619 So. 2d 1044 (Fla. 4th DCA 1993) (conviction for aiding and abetting sexual battery was properly enhanced from second-degree felony to first-degree felony in case involving multiple perpetrators; defendant was principal in first degree to codefendants sexual battery). Velasquez v. State, 657 So. 2d 1218 (Fla. 5th DCA 1995) (statutory enhancement for multiple perpetrators applied only to completed offense); Gifford v. State, 744 So. 2d 1046 (Fla. 4th DCA 1999) (sentence for attempted sexual battery could not be enhanced from third-degree felony to second-degree felony, even though perpetrated by multiple offenders, because statutory provision allowing enhancement did not refer to attempted sexual battery and there was no provision for enhancing third-degree felonies). 794.023, Fla. Stat.; see also, Williams v. State, 678 So. 2d 443 (Fla. 2d DCA 1996) (sexual battery with great force was a life felony and therefore conviction could not be enhanced under statute pertaining to multiple perpetrators).
428 427 426

425

794.023, Fla. Stat. Gordon v. State, 599 So. 2d 1048 (Fla. 5th DCA 1992).

429

73

as a principal in the first degree to the codefendants sexual battery, Taylors conviction was properly enhanced.430 2.6. Unlawful taking, possession, or use of law enforcement officers firearm A person who, without authorization, takes a firearm from a law enforcement officer lawfully engaged in law enforcement duties commits a felony of the third degree, punishable as provided in sections 775.082, 775.083, or 775.084.431 If a person violates subsection 775.0875(1) and commits any other crime involving the firearm taken from the law enforcement officer, such crime must be reclassified as follows: 1. In the case of a felony of the first degree, to a life felony.432 2. In the case of a felony of the second degree, to a felony of the first degree.433 3. In the case of a felony of the third degree, to a felony of the second degree.434 For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, a felony offense that is reclassified under section 775.087(1)(a) is ranked one level above the ranking under section 921.0022 or section 921.0023 of the felony offense committed.435 In the case of a misdemeanor, such crime must be reclassified to a felony of the third degree. For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, such offense is ranked in level 2 of the offense severity ranking chart.436 A person who possesses a firearm that he or she knows was unlawfully taken from a law enforcement officer commits a misdemeanor of the first degree, punishable as provided in section 775.082 or section 775.083.437

430

Williams v. State, 619 So. 2d 1044 (Fla. 4th DCA 1993). 775.0875(1), Fla. Stat. 775.0875(1)(a) 1, F.S. 775.0875(1)(a) 2, F.S. 775.0875(1)(a) 3, F.S. 775.0875(1)(a), Fla. Stat. 775.0875(1)(b), Fla. Stat. 775.0875(1)(b), Fla. Stat.

431

432

433

434

435

436

437

74

 2.7. Reclassifications of various types of batteries and assaults Florida has an extensive scheme for the reclassification of batteries and assaults, based either on recidivism or the status of the victim. In some cases, minimum mandatory sentencing must also be imposed. This reclassification scheme includes the following: 2.7.1. Battery The offense of battery occurs when a person (1) actually and intentionally touches or strikes another person against the will of the other; or (2) intentionally causes bodily harm to another person.438 Except as provided in subsection 784.03(2), a person who commits battery commits a misdemeanor of the first degree, punishable as provided in section 775.082 or section 775.083.439 A person who has one prior conviction for battery, aggravated battery, or felony battery and who commits any second or subsequent battery commits a felony of the third degree, punishable as provided in section 775.082, 775.083, or 775.084. For purposes of subsection 784.03(2), conviction means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.440 The State cannot utilize a prior withhold of delinquency or an adjudication of delinquency as a predicate conviction to elevate a subsequent simple battery to a felony battery.441 A conviction for lewd or lascivious battery, which can be committed without touching or striking another person against his or her will, does not qualify as a predicate offense, regardless of the factual circumstances of the offense.442 While battery, aggravated battery, and felony battery are the only predicate offenses listed in section 784.03(2), it appears a conviction for any prior offense in which battery is a lesser-included offense, such as battery on a law enforcement officer, battery on a person 65 years of age or older, lewd or lascivious battery where the information alleges that the touching was against the will of the victim,443 sexual battery, and murder, may provide the necessary predicate for reclassification under this scheme.444 Note that, in cases where simple battery is a lesser-included
438

784.03(1)(a), Fla. Stat. 784.03(1), Fla. Stat. 784.03(2), Fla. Stat.

439

440

See, J.R.H. v. State, 932 So. 2d 430 (Fla. 4th DCA 2006); W.J.H. v. State, 922 So. 2d 458 (Fla. 4th DCA 2006); J.E.A. v. State, 842 So. 2d 851 (Fla. 2d DCA 2002); also, Shook v. State, 603 So. 2d 617 (Fla. 1st DCA 1992) (habitual felony offender sentence cannot be based on juvenile adjudications).
442

441

Aldacosta v. State, 41 So. 3d 1096 (Fla. 2d DCA 2010). See, Barnett v. State, 45 So. 3d 963 (Fla. 3d DCA 2010), review denied, 59 So. 3d 107 (Fla. 2011).

443

See, State v. Warren, 796 So. 2d 489 (Fla. 2001); Grimes v. State, 724 So. 2d 614 (Fla. 5th DCA 1998) (robbery can be used as a predicate conviction for felony petit theft since, by statutory definition, robbery is a theft and petit theft is a Category 1, lesser included offense of robbery); also, Bauer, Legal Developments Impacting

444

75

offense, prosecutors should ensure that the charging document cites section 784.02(2) and alleges prior battery convictions so that the defendant has proper notice that if he or she is found guilty of the lesser included crime of misdemeanor battery he or she could be convicted of felony battery.445 2.7.2. Assault or battery on emergency medical care providers, firefighters, law enforcement explorers, law enforcement officers, public transit employees or agents, or other specified officers Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer,446 a firefighter,447 an emergency medical care provider,448 a traffic accident investigation officer as described in section 316.640, a nonsworn law enforcement agency employee who is certified as an agency inspector, a blood alcohol analyst, or a breath test operator while such employee is in uniform and engaged in processing, testing, evaluating, analyzing, or transporting a person who is detained or under arrest for DUI, a law enforcement explorer, a traffic infraction enforcement officer as described in section 316.640, a parking enforcement specialist as defined in section 316.640, a person licensed as a security officer as defined in section 493.6101 and wearing a uniform that bears at least one patch or emblem that is visible at all times that clearly identifies the employing agency and that clearly identifies the person as a licensed security officer, or a security officer employed by the board of trustees of a community college, while the officer, firefighter, emergency medical care provider, traffic accident investigation officer, traffic infraction enforcement officer, inspector, analyst, operator, a law enforcement explorer, parking enforcement specialist,

Repeat Battery Offenders: Warren and the 2001 Amendment to Felony Battery, LXXVI No. 4 Fla. B.J. 37 (Apr. 2002), found online at http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/Author/21866A140F13BF9D85256B870057AC04.
445

See, Cox v. State, 988 So. 2d 1236 (Fla. 5th DCA 2008).

Law enforcement officer includes a law enforcement officer, a correctional officer, a correctional probation officer, a part-time law enforcement officer, a part-time correctional officer, an auxiliary law enforcement officer, and an auxiliary correctional officer, as those terms are respectively defined in section 943.10, and any county probation officer; an employee or agent of the Department of Corrections who supervises or provides services to inmates; an officer of the Parole Commission; a federal law enforcement officer as defined in section 901.1505 and law enforcement personnel of the Fish and Wildlife Conservation Commission, the Department of Environmental Protection, or the Department of Law Enforcement. 784.07(1)(d), Fla. Stat. Firefighter means any person employed by any public employer of the State of Florida whose duty it is to extinguish fires; to protect life or property; or to enforce municipal, county, and state fire prevention codes, as well as any law pertaining to the prevention and control of fires. 784.07(1)(b), Fla. Stat. Emergency medical care provider means an ambulance driver, emergency medical technician, paramedic, registered nurse, physician as defined in section 401.23, medical director as defined in section 401.23, or any person authorized by an emergency medical service licensed under chapter 401 who is engaged in the performance of his or her duties. The term emergency medical care provider also includes physicians, employees, agents, or volunteers of hospitals as defined in chapter 395, who are employed, under contract, or otherwise authorized by a hospital to perform duties directly associated with the care and treatment rendered by the hospital's emergency department or the security thereof. 784.07(1)(a), Fla. Stat.
448 447

446

76

public transit employee or agent,449 or security officer is engaged in the lawful performance of his or her duties, the offense for which the person is charged shall be reclassified as follows: 1. In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree.450 2. In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.451 3. In the case of aggravated assault, from a felony of the third degree to a felony of the second degree. Notwithstanding any other provision of law, any person convicted of aggravated assault upon a law enforcement officer must be sentenced to a minimum term of imprisonment of three years.452 4. In the case of aggravated battery, from a felony of the second degree to a felony of the first degree. Notwithstanding any other provision of law, any person convicted of aggravated battery of a law enforcement officer must be sentenced to a minimum term of imprisonment of five years.453 Any person who is convicted of a battery under section 784.07(2)(b) and, during the commission of the offense, such person possessed: 1. A firearm or destructive device as those terms are defined in section 790.001, must be sentenced to a minimum term of imprisonment of three years.454 2. A semiautomatic firearm and its high-capacity detachable box magazine, as defined in section 775.087(3), or a machine gun as defined in section 790.001, must be sentenced to a minimum term of imprisonment of eight years.455

Public transit employees or agents means bus operators, train operators, revenue collectors, security personnel, equipment maintenance personnel, or field supervisors, who are employees or agents of a transit agency as described in section 812.015(1)(l). 784.07(1)(e), Fla. Stat.
450

449

784.07(2)(a), Fla. Stat. 784.07(2)(b), Fla. Stat. 784.07(2)(b), Fla. Stat. 784.07(2)(d), Fla. Stat. 784.07(3)(a), Fla. Stat. 784.07(3)(b), Fla. Stat.

451

452

453

454

455

77

Notwithstanding section 948.01, adjudication of guilt or imposition of sentence can not be suspended, deferred, or withheld, and the defendant is not eligible for statutory gain-time under section 944.275 or any form of discretionary early release, other than pardon or executive clemency, or conditional medical release under section 947.149, prior to serving the minimum sentence.456 2.7.3. Assault or battery on sexually violent predators detention or commitment facility staff Whenever a person is charged with committing an assault or aggravated assault or a battery or aggravated battery upon a staff member of a sexually violent predators detention or commitment facility as defined in part V of chapter 394, while the staff member is engaged in the lawful performance of his or her duties and when the person committing the offense knows or has reason to know the identity or employment of the victim, the offense for which the person is charged must be reclassified as follows: 1. In the case of aggravated battery, from a felony of the second degree to a felony of the first degree.457 2. In the case of an aggravated assault, from a felony of the third degree to a felony of the second degree.458 3. In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.
459

4. In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree.460 For purposes of section 784.074, a staff member of the facilities listed includes persons employed by the Department of Children and Family Services, persons employed at facilities licensed by the Department of Children and Family Services, and persons employed at facilities operated under a contract with the Department of Children and Family Services.461

456

784.07, Fla. Stat. 784.074(1)(a), Fla. Stat. 784.074(1)(b), Fla. Stat. 784.074(1)(c), Fla. Stat. 784.074(1)(d), Fla. Stat. 784.074(2), Fla. Stat.

457

458

459

460

461

78

 2.7.4. Battery on detention or commitment facility staff or a juvenile probation officer A person who commits a battery on a juvenile probation officer, as defined in section 984.03 or section 985.03, on other staff of a detention center or facility as defined in section 984.03(19) or section 985.03, or on a staff member of a commitment facility as defined in section 985.03, commits a felony of the third degree, punishable as provided in sections 775.082, 775.083, or 775.084. For purposes of section 784.075, a staff member of the facilities listed includes persons employed by the Department of Juvenile Justice, persons employed at facilities licensed by the Department of Juvenile Justice, and persons employed at facilities operated under a contract with the Department of Juvenile Justice.462 2.7.5. Battery on health services personnel A juvenile who has been committed to or detained by the Department of Juvenile Justice pursuant to a court order, who commits battery upon a person who provides health services commits a felony of the third degree, punishable as provided in section 775.082, section 775.083, or section 775.084. As used in section 784.076, the term health services means preventive, diagnostic, curative, or rehabilitative services and includes alcohol treatment, drug abuse treatment, and mental health services.463 2.7.6. Battery of facility employee by throwing, tossing, or expelling certain fluids or materials It is unlawful for any person, while being detained in a facility464 and with intent to harass, annoy, threaten, or alarm a person in a facility whom he or she knows or reasonably should know to be an employee465 of such facility, to cause or attempt to cause such employee to come into contact with blood, masticated food, regurgitated food, saliva, seminal fluid, or urine or feces, whether by throwing, tossing, or expelling such fluid or material.466 Any person who violates paragraph
462

784.075, Fla. Stat. 784.076, Fla. Stat.

463

As used in section 784.078, the term facility means a state correctional institution defined in s. 944.02(6); a private correctional facility defined in section 944.710 or under chapter 957; a county, municipal, or regional jail or other detention facility of local government under chapter 950 or chapter 951; or a secure facility operated and maintained by the Department of Corrections or the Department of Juvenile Justice. 784.078(1), Fla. Stat. As used in section 784.078, the term employee includes any person employed by or performing contractual services for a public or private entity operating a facility or any person employed by or performing contractual services for the corporation operating the prison industry enhancement programs or the correctional work programs, pursuant to part II of chapter 946. Employee includes any person who is a parole examiner with the Florida Parole Commission. 784.078(2)(a), Fla. Stat.
466 465

464

784.078(3)(a), Fla. Stat.

79

784.078(3)(a) commits battery of a facility employee, a felony of the third degree, punishable as provided in sections 775.082, 775.083, or section 775.084.467 2.7.7. Assault or battery on persons 65 years of age or older A person who is convicted of an aggravated assault or aggravated battery upon a person 65 years of age or older must be sentenced to a minimum term of imprisonment of three years and fined not more than $10,000 and must also be ordered by the sentencing judge to make restitution to the victim of such offense and to perform up to 500 hours of community service work. Restitution and community service work must be in addition to any fine or sentence which may be imposed and shall not be in lieu thereof.468 Whenever a person is charged with committing an assault or aggravated assault or a battery or aggravated battery upon a person 65 years of age or older, regardless of whether he or she knows or has reason to know the age of the victim, the offense for which the person is charged shall be reclassified as follows: 1. In the case of aggravated battery, from a felony of the second degree to a felony of the first degree.
469

2. In the case of aggravated assault, from a felony of the third degree to a felony of the second degree.
470

3. In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.471 4. In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree.472 Notwithstanding the provisions of section 948.01, adjudication of guilt or imposition of sentence can not be suspended, deferred, or withheld.473

467

784.078(3)(b), Fla. Stat. 784.08(1), Fla. Stat. 784.08(2)(a), Fla. Stat. 784.08(2)(b), Fla. Stat. 784.08(2)(c), Fla. Stat. 784.08(2)(d), Fla. Stat. 784.08(3), Fla. Stat.

468

469

470

471

472

473

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 2.7.8. Assault or battery on specified officials or employees Whenever a person is charged with committing an assault or aggravated assault or a battery or aggravated battery upon any elected official or employee of: a school district; a private school; the Florida School for the Deaf and the Blind; a university lab school; a state university or any other entity of the state system of public education, as defined in section 1000.04; a sports official;474 an employee or protective investigator of the Department of Children and Family Services; an employee of a lead community-based provider and its direct service contract providers; or an employee of the Department of Health or its direct service contract providers, when the person committing the offense knows or has reason to know the identity or position or employment of the victim, the offense for which the person is charged must be reclassified as follows: 1. In the case of aggravated battery, from a felony of the second degree to a felony of the first degree.475 2. In the case of aggravated assault, from a felony of the third degree to a felony of the second degree.
476

3. In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.
477

4. In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree.478 An assault, aggravated assault, battery, or aggravated battery upon a sports official must be reclassified pursuant to subsection 784.081(2) only if such offense is committed upon the sports official when he or she is actively participating as a sports official in an athletic contest or immediately following such athletic contest.479

For purposes of section 784.081, the term sports official means any person who serves as a referee, an umpire, or a linesman, and any person who serves in a similar capacity as a sports official who may be known by another title, which sports official is duly registered by or is a member of a local, state, regional, or national organization that is engaged in part in providing education and training to sports officials. 784.081(1), Fla. Stat.
475

474

784.081(2)(a), Fla. Stat. 784.081(2)(b), Fla. Stat. 784.081(2)(c), Fla. Stat. 784.081(2)(d), Fla. Stat. 784.081(3), Fla. Stat.

476

477

478

479

81

 2.7.9. Assault or battery by a person who is being detained in a prison, jail, or other detention facility upon visitor or other detainee Whenever a person who is being detained in a prison, jail, or other detention facility is charged with committing an assault or aggravated assault or a battery or aggravated battery upon any visitor to the detention facility or upon any other detainee in the detention facility, the offense for which the person is charged must be reclassified as follows: 1. In the case of aggravated battery, from a felony of the second degree to a felony of the first degree.480 2. In the case of aggravated assault, from a felony of the third degree to a felony of the second degree.
481

3. In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.482 4. In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree.483 2.7.10. Assault or battery on code inspectors Whenever a person is charged with committing an assault or aggravated assault or a battery or aggravated battery upon a code inspector, as defined in section 162.04(2), while the code inspector is engaged in the lawful performance of his or her duties and when the person committing the offense knows or has reason to know the identity or employment of the victim, the offense for which the person is charged must be reclassified as follows: 1. In the case of aggravated battery, from a felony of the second degree to a felony of the first degree.
484

2. In the case of aggravated assault, from a felony of the third degree to a felony of the second degree.
485

480

784.082(1), Fla. Stat. 784.082(2), Fla. Stat. 784.082(3), Fla. Stat. 784.082(4), Fla. Stat. 784.083(1), Fla. Stat. 784.083(2), Fla. Stat.

481

482

483

484

485

82

3. In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.
486

4. In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree.487 2.8. Reclassifications of burglary and theft during states of emergency A burglary of an occupied or unoccupied dwelling, occupied structure, occupied conveyance, or occupied authorized emergency vehicle where the defendant does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive is reclassified from a felony of the second degree to a felony of the first degree if the burglary is committed within a county that is subject to a state of emergency declared by the Governor under chapter 252 after the declaration of emergency is made and the perpetration of the burglary is facilitated by conditions arising from the emergency.488 A burglary of an unoccupied structure, unoccupied conveyance, or unoccupied authorized emergency vehicle where the defendant does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive is reclassified from a felony of the third degree to a felony of the second degree if the burglary is committed within a county that is subject to a state of emergency declared by the Governor under chapter 252 after the declaration of emergency is made and the perpetration of the burglary is facilitated by conditions arising from the emergency.489 Theft of property valued at $5,000 or more but less than $10,000, or valued at $10,000 or more but less than $20,000, is reclassified from a felony of the third degree to a felony of the second degree if the theft is committed within a county that is subject to a state of emergency declared by the Governor under chapter 252 after the declaration of emergency is made and the perpetration of the theft is facilitated by conditions arising from the emergency. For purposes of sentencing under chapter 921, a felony offense that is reclassified under section 812.014(2)(c) is ranked one level above the ranking under section 921.0022 or section 921.0023 of the offense committed.490

486

784.083(3), Fla. Stat. 784.083(4), Fla. Stat. 810.02(3), Fla. Stat. 810.02(4), Fla. Stat. 812.014(2)(c), Fla. Stat.

487

488

489

490

83

 2.9. Reclassifications of theft of emergency medical equipment Theft of property valued at $300 or more is reclassified from a third degree felony to a second degree felony if the property stolen is emergency medical equipment taken from a facility licensed under chapter 395 or from an aircraft or vehicle permitted under chapter 401.491 2.10. Reclassifications of theft of law enforcement equipment Theft of property valued at $300 or more is reclassified from a third degree felony to a second degree felony if the property stolen is law enforcement equipment taken from an authorized emergency vehicle.492 The theft is reclassified from a felony of the second degree to a felony of the first degree if the theft is committed within a county that is subject to a state of emergency declared by the Governor under chapter 252 after the declaration of emergency is made and the perpetration of the theft is facilitated by conditions arising from the emergency. For purposes of sentencing under chapter 921, a felony offense that is reclassified under section 812.014(2)(b) 4. is ranked one level above the ranking under section 921.0022 or section 921.0023 of the offense committed.493 2.11. Reclassifications of sexual performance by a child; computer pornography; transmission of pornography by electronic device; or transmission of material harmful to minors to a minor by electronic device or equipment A violation of section 827.071, 847.0135, 847.0137, or 847.0138 must be classified to the next higher degree as provided in section 775.0847(3) if the defendant possesses 10 or more images of any form of child pornography regardless of content, and the content of at least one image contains one or more of the following: 1. A child who is younger than the age of five years. 2. Sadomasochistic abuse involving a child. 3. Sexual battery involving a child. 4. Sexual bestiality involving a child. 5. Any movie involving a child, regardless of length and regardless of whether the movie contains sound.

491

812.014(2)(b) 3, Fla. Stat. 812.014(2)(b) 4, Fla. Stat. 812.014(2)(b) 4, Fla. Stat.

492

493

84

For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, a felony offense that is reclassified under section 775.0847 is ranked one level above the ranking under section 921.0022 or section 921.0023 of the offense committed.494 2.12. Reclassifications of offenses involving minors The felony or misdemeanor degree of any violation of Chapter 796, Florida Statutes, other than section 796.03 or section 796.035, in which a minor engages in prostitution, lewdness, assignation, sexual conduct, or other conduct as defined in or prohibited by Chapter 796, but the minor is not the person charged with the violation, is reclassified as follows: 1. A misdemeanor of the second degree is reclassified to a misdemeanor of the first degree.495 2. A misdemeanor of the first degree is reclassified to a felony of the third degree.496 3. A felony of the third degree is reclassified to a felony of the second degree.497 4. A felony of the second degree is reclassified to a felony of the first degree.498 5. A felony of the first degree is reclassified to a life felony.499 2.13. Unlawful filing of false documents or records against real or personal property A person who files or directs a filer to file, with the intent to defraud or harass another, any instrument containing a materially false, fictitious, or fraudulent statement or representation that purports to affect an owner's interest in the property described in the instrument commits a felony of the third degree, punishable as provided in sections 775.082, 775.083, or 775.084, Fla. Stat.500 File in this context means to present an instrument for recording in an official record or to cause an instrument to be presented for recording in an official record.501 Filer means the person who

494

775.0847(2), Fla. Stat. 796.036(2)(a), Fla. Stat. 796.036(2)(b), Fla. Stat. 796.036(2)(c), Fla. Stat. 796.036(2)(d), Fla. Stat. 796.036(2)(e), Fla. Stat. 817.535(2)(a), Fla. Stat. 817.535(1)(a), Fla. Stat.

495

496

497

498

499

500

501

85

presents an instrument for recording in an official record, or causes an instrument to be presented for recording in an official record.502 Instrument means any judgment, mortgage, assignment, pledge, lien, financing statement, encumbrance, deed, lease, bill of sale, agreement, mortgage, notice of claim of lien, notice of levy, promissory note, mortgage note, release, partial release or satisfaction of any of the foregoing, or any other document that relates to or attempts to restrict the ownership, transfer, or encumbrance of or claim against real or personal property, or any interest in real or personal property.503 Official record means the series of instruments, regardless of how they are maintained, which a clerk of the circuit court, or any person or entity designated by general law, special law, or county charter, is required or authorized by law to record. The term also includes a series of instruments pertaining to the Uniform Commercial Code filed with the Secretary of State or with any entity under contract with the Secretary of State to maintain Uniform Commercial Code records and a database of judgment liens maintained by the Secretary of State.504 A person who violates section 817.535(2)(a) a second or subsequent time commits a felony of the second degree, punishable as provided in sections 775.082, 775.083, or 775.084, Fla. Stat.505 If a person is convicted of violating section 817.535(2) and the owner of the property subject to the false instrument is a public officer or employee, the offense must be reclassified as follows: In the case of a felony of the third degree, to a felony of the second degree, punishable as provided in sections 775.082, 775.083, or 775.084.506 In the case of a felony of the second degree, to a felony of the first degree, punishable as provided in sections 775.082, 775.083, or 775.084.507 Public officer or employee means, but is not limited to: (1) A person elected or appointed to a local, state, or federal office, including any person serving on an advisory body, board, commission, committee, council, or authority;508 (2) an employee of a state, county, municipal, political subdivision, school district, educational institution, or special district agency or entity,

502

817.535(1)(b), Fla. Stat. 817.535(1)(c), Fla. Stat. 817.535(1)(d), Fla. Stat. 817.535(2)(b), Fla. Stat. 817.535(3)(a), Fla. Stat. 817.535(3)(b), Fla. Stat. 817.535(1)(e) 1, Fla. Stat.

503

504

505

506

507

508

86

including judges, attorneys, law enforcement officers, deputy clerks of court, and marshals;509 (3) a state or federal executive, legislative, or judicial officer, employee, or volunteer authorized to perform actions or services for any state or federal executive, legislative, or judicial office, or agency;510 (4) a person who acts as a general or special magistrate, auditor, arbitrator, umpire, referee, hearing officer, or consultant to any state or local governmental entity;511 and (5) a person who is a candidate for public office or judicial position.512 If a person is convicted of violating section 817.535(2) and the person committed the offense while incarcerated in a jail or correctional institution or while participating in a pretrial diversion program under any form of pretrial release or bond, on probation or parole, or under any postrelease supervision, the offense must be reclassified as follows: In the case of a felony of the third degree, to a felony of the second degree, punishable as provided in sections 775.082, 775.083, or 775.084.513 In the case of a felony of the second degree, to a felony of the first degree, punishable as provided in sections 775.082, 775.083, or 775.084.514 If a persons offense has been reclassified pursuant to section 817.535(4), the sentencing court is required to issue a written finding that the offense occurred while incarcerated in a jail or correctional institution and direct that a copy of the written finding and judgment of conviction be forwarded to the appropriate state institution or county facility for consideration of disciplinary action and forfeiture of all gain time or any early release credits accumulated up to the date of the violation.515 If the person is convicted of violating section 817.535(2) and the owner of the property covered by the false instrument incurs financial loss as a result of the instrument being recorded in the official record, including costs and attorney fees incurred in correcting, sealing, or removing the false instrument from the official record as described herein, the offense must be reclassified as follows:

509

817.535(1)(e) 2, Fla. Stat. 817.535(1)(e) 3, Fla. Stat. 817.535(1)(e) 4, Fla. Stat. 817.535(1)(e) 5, Fla. Stat. 817.535(4)(a) 1, Fla. Stat. 817.535(4)(a) 2, Fla. Stat. 817.535(4)(b), Fla. Stat.

510

511

512

513

514

515

87

 In the case of a felony of the third degree, to a felony of the second degree, punishable as provided in sections 775.082, 775.083, or 775.084.516 In the case of a felony of the second degree, to a felony of the first degree, punishable as provided in sections 775.082, 775.083, or 775.084.517 A person who fraudulently records a claim of lien in the official records pursuant to part I of chapter 713 is subject to the fraud provisions of section 713.31, Fla. Stat. and not section 817.535, Fla. Stat.518 If a person is convicted of violating section 817.535, the sentencing court is required to issue an order declaring the instrument forming the basis of the conviction null and void and may enjoin the person from filing any instrument in an official record absent prior review and approval for filing by a circuit or county court judge. The sentencing court may also order the instrument forming the basis of the conviction sealed from the official record and removed from any applicable electronic database used for recording instruments in the official record.519 Any person adversely affected by an instrument filed in the official record which contains a materially false, fictitious, or fraudulent statement or representation has a civil cause of action under section 817.535 without regard to whether criminal charges are pursued under section 817.535(2). A notice of lis pendens in accord with section 48.23, Fla. Stat. must be filed which specifically describes the instrument under challenge and the real or personal property affected by the instrument.520 Upon a finding that the instrument contains a materially false, fictitious, or fraudulent statement or representation such that the instrument does not establish a legitimate property or lien interest in favor of another person: 1. The court shall determine whether the entire instrument or certain parts thereof are null and void ab initio. If the court finds the instrument void in its entirety, it may order the instrument sealed from the official record and removed from any electronic database used for indexing or locating instruments in the official record. The court may also, permanently or for a period of time, enjoin the defendant who filed the instrument or who directed the filer to file the instrument from filing or directing a person to file an instrument in the official records without prior review and

516

817.535(5)(a), Fla. Stat. 817.535(5)(b), Fla. Stat. 817.535(6), Fla. Stat. 817.535(7), Fla. Stat. 817.535(8)(a), Fla. Stat.

517

518

519

520

88

approval for filing by a circuit or county court judge, provided that as to third parties who may have given value for an interest described or granted by any instrument filed in violation of the injunction, the instrument shall be deemed validly filed and provides constructive notice, notwithstanding any failure to comply with the terms of the injunction.521 2. Upon a finding of intent to defraud or harass, the court or jury must award actual damages and punitive damages, subject to the criteria in section 768.72, to the person adversely affected by the instrument. The court may also levy a civil penalty of $2,500 for each instrument determined to be in violation of subsection (2).522 3. The court may grant such other relief or remedy that the court determines is just and proper within its sound judicial discretion.523 The prevailing party in such a suit is entitled to recover costs and reasonable attorney fees.524 The custodian of any official record must, upon payment of appropriate fees, provide a certified copy of the sealed instrument to the party seeking relief under this section for use in subsequent court proceedings; in addressing or correcting adverse effects upon the person s credit or property rights, or reporting the matter for investigation and prosecution; or in response to a subpoena seeking the instrument for criminal investigative or prosecution purposes.525 Upon request, the custodian of any official record shall, upon payment of appropriate fees, provide a certified copy of the sealed instrument to any federal, state, or local law enforcement agency.526 If feasible, the custodian of the official record where the instrument is recorded shall record any court order finding that the instrument is null and void in its entirety or in certain parts thereof.527

521

817.535(8)(b)1, Fla. Stat. 817.535(8)(b)2, Fla. Stat. 817.535(8)(b)3, Fla. Stat. 817.535(8)(c), Fla. Stat. 817.535(8)(d), Fla. Stat. 817.535(8)(e), Fla. Stat. 817.535(8)(f), Fla. Stat.

522

523

524

525

526

527

89

An instrument removed from an electronic database used for recording instruments in the public record pursuant to this section shall be maintained in a manner in which the instrument can be reduced to paper form.528 A government agency may provide legal representation to a public officer or employee if the instrument at issue appears to have been filed to defraud or harass the public officer or employee in his or her official capacity. If the public officer or employee is the prevailing party, the award of reasonable attorney fees shall be paid to the government agency that provided the legal representation.529 Section 817.535 does not apply to the procedures for sealing or expunging criminal history records as provided in chapter 943.530 2.14. False reports to law enforcement authorities Knowingly giving false information to a law enforcement officer concerning the commission of any alleged crime is reclassified from a first degree misdemeanor to a felony of the third degree, punishable as provided in section 775.082 or section 775.083, if the person has previously been convicted of a violation of section 837.05(1)(a), Fla. Stat., and either: 1. The information the person gave to the law enforcement officer was communicated orally and the officers account of the information is corroborated by an audio recording or audio recording in a video of that information, a written or recorded statement made by a person who gave that information, or another person who was present when that person gave that information to the officer and heard that information;531 or 2. The information the person gave to the law enforcement officer was communicated in writing.532 Knowingly giving false information to a law enforcement officer is reclassified from a first degree misdemeanor to a third degree felony, punishable as provided in section 775.082, section 775.083, or section 775.084, Fla. Stat., if the information concerns the alleged commission of a capital felony.533
528

817.535(8)(g), Fla. Stat. 817.535(9), Fla. Stat. 817.535(10), Fla. Stat. 837.05(1)(b)1, Fla. Stat. 837.05(1)(b)2, Fla. Stat. 837.05(2), Fla. Stat.

529

530

531

532

533

90

 2.15. Enhancement of penalty for cruelty to animals A person who intentionally commits an act to any animal, or a person who owns or has the custody or control of any animal and fails to act, which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, commits aggravated animal cruelty, a felony of the third degree, punishable as provided in section 775.082, Fla. Stat. or by a fine of not more than $10,000, or both.534 A person convicted of a violation of section 828.12(2), Fla. Stat., where the finder of fact determines that the violation includes the knowing and intentional torture or torment of an animal that injures, mutilates, or kills the animal, must be ordered to pay a minimum mandatory fine of $2,500 and undergo psychological counseling or complete an anger management treatment program.535 Any person convicted of a second or subsequent violation of this section 828.12(2) must be required to pay a minimum mandatory fine of $5,000 and serve a minimum mandatory period of incarceration of 6 months. In addition, the person can be released only upon expiration of sentence, is not eligible for parole, control release, or any form of early release, and must serve 100% of the court-imposed sentence. Any plea of nolo contendere must be considered a conviction for purposes of section 828.12(2).536 2.16. Minimum mandatory sentencing An increasingly common sentence enhancement is found in minimum mandatory sentencing. For those offenses having a mandatory minimum sentence, a scoresheet must be completed and the lowest permissible sentence under the Criminal Punishment Code calculated. If the lowest permissible sentence is less than the mandatory minimum sentence, the mandatory minimum sentence takes precedence. If the lowest permissible sentence exceeds the mandatory minimum sentence, the requirements of the Criminal Punishment Code and any mandatory minimum penalties apply, subject to Apprendi considerations. Mandatory minimum sentences must be recorded on the scoresheet.537 The imposition of a mandatory minimum sentence under statutory law is a non-discretionary duty of a sentencing court where the record reflects that the defendant qualifies for mandatory minimum sentencing. When an oral sentence does not include the applicable mandatory minimum sentence, it is an illegal sentence and, accordingly, subject to correction.538 It does not offend double jeopardy principles to resentence a defendant to a harsher term when the original sentence was

534

828.12(2), Fla. Stat. 828.12(2)(a), Fla. Stat. 828.12(2)(b), Fla. Stat. Fla. R. Crim. P. 3.704(d)(26). Dunbar v. State, 89 So. 3d 901 (Fla. 2012).

535

536

537

538

91

invalid.539 Only the State Attorney has the discretion to waive the minimum mandatory sentence.540 The failure to call the trial courts attention to its omission of a mandatory minimum provision during oral pronouncement of sentence does not reflect an intentional waiver by the prosecutor.541 Generally, although the state attorney can waive a minimum mandatory sentence, the state attorney cannot grant a reduction of the minimum mandatory.542 A defendant serving a mandatory-minimum prison sentence is eligible to receive incentive gain time credit, notwithstanding the nature of his or her sentence, unless the award of such credit is specifically prohibited by the statutory law under which the defendant was sentenced. This is so, notwithstanding any statutory prohibition on discretionary early release, because incentive gain time is not a form of discretionary early release. An example of a mandatory-minimum statute that does not preclude the award of incentive gain time is section 893.135(6), and an example of one that does is section 775.087(2). While the award of incentive gain time is discretionary, it will not necessarily result in a defendants early release prior to the service of a mandatory-minimum term of imprisonment. This is especially true where the defendant has been sentenced to a term longer than the mandatory-minimum term or when the defendants incentive gain time is forfeited in subsequent disciplinary proceedings.543 Minimum mandatory sentences implicate Apprendi considerations. The United States Constitution requires juries to find facts that trigger mandatory punishment.544 Where authorized by statute, the sentencing court can stack consecutive minimum mandatory sentences arising from a single criminal episode. Section 893.135, Fla. Stat., for example, authorizes consecutive minimum mandatory sentences for trafficking in cocaine and conspiracy to traffic in cocaine, even though these offenses may arise out of the same transaction.545 Absent specific legislative authorization, minimum mandatory enhancement sentences arising from a single criminal

Dunbar v. State, 46 So. 3d 81, 82 (Fla. 5th DCA 2010), review granted, 58 So. 3d 260 (Fla. 2011) and decision quashed, 89 So. 3d 901 (Fla. 2012); see also, State v. Scanes, 973 So. 2d 659 (Fla. 3d DCA 2008); State v. Couch, 896 So. 2d 799 (Fla. 1st DCA 2005); State v. Strazdins, 890 So. 2d 334 (Fla. 2d DCA 2004); Allen v. State, 853 So. 2d 533 (Fla. 5th DCA 2003).
540

539

See, e.g., 27.366 and 775.087(5), Fla. Stat. (firearms); 893.135(4), Fla. Stat. (drug trafficking). State v. Vanderhoff, 14 So. 3d 1185 (Fla. 5th DCA 2009). Figuerreo v. State, 42 So. 3d 887 (Fla. 3d DCA 2010). Mastay v. McDonough, 928 So. 2d 512 (Fla. 1st DCA 2006).

541

542

543

Harris v. U.S., 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002) (overruled by, Alleyne v. United States, 133 S. Ct. 2151 (2013)) and McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986).
545

544

Kelly v. State, 964 So. 2d 135 (Fla. 2007).

92

episode must run concurrently pursuant to the Florida Supreme Courts decision in Hale v. State.546 The Second, Third and Fourth Districts have followed Hale and held that consecutive prison releasee reoffender sentences that arose from a single criminal episode were illegal.547 While consecutive minimum mandatory sentences for offenses arising out of the same criminal episode are forbidden, if the offenses do not arise out of the same criminal episode, then the trial court has discretion to impose concurrent or consecutive sentences.548 The specific provisions of the 10-20-Life statute with regard to mandatory minimums control over the general provisions of section 775.082 regarding statutory maximums. Thus, the trial court has discretion under section 775.087(2)(a)(3) to impose a mandatory minimum of 25 years to life, even if that mandatory minimum exceeds the statutory maximum provided for in section 775.082.549 Thus, when a defendant is convicted of attempted second degree murder with a firearm, a second degree felony reclassified to a first degree felony, and the jury finds that the defendant carried a firearm, discharged it, and caused great bodily harm, the court may lawfully impose a 35-year sentence. Because the court was required to impose a mandatory minimum sentence of 25 years to life, and 35 years is within that range, the fact that the statutory maximum is 30 years does not prohibit the longer sentence.550 If, however, the sentencing court in this same situation imposed a minimum mandatory sentence of 25 years, the court would be limited to the statutory maximum of 30 years at the top end of the sentence. That is, if the court could impose a 35-year minimum mandatory sentence, but not a 35-year sentence with a 25-year minimum mandatory.551 Various mandatory minimum sentencing requirements and conditions are found throughout the statutory law of Florida, and prosecutors and defense attorneys should be aware of these. Examples of the more prominent minimum mandatories include the following:

See, Hale v. State, 630 So. 2d 521 (Fla. 1993) (habitual felony offender statute); Daniels v. State, 595 So. 2d 952 (Fla. 1992) (habitual violent felony offender statute). Smith v. State, 824 So. 2d 263 (Fla. 2d DCA 2002) (prison releasee reoffender statute); Spivey v. State, 789 So. 2d 1087 (Fla. 2d DCA 2001) (violent career criminal sanctions); Green v. State, 845 So. 2d 895 (Fla. 3d DCA 2003) (habitual violent felony offender statute and 10/20/life statute); Philmore v. State, 760 So. 2d 1063 (Fla. 4th DCA 2000) (prison releasee reoffender statute).
548 547

546

Elozar v. State, 872 So. 2d 934 (Fla. 5th DCA 2004). Mendenhall v. State, 48 So. 3d 740 (Fla. 2010). Mendenhall v. State, 48 So. 3d 740 (Fla. 2010). See, Sheppard v. State, 113 So. 3d 148 (Fla. 2d DCA 2013).

549

550

551

93

 2.16.1. Capital felonies552 A defendant who has been convicted of a capital felony must be punished by death if the proceeding held to determine sentence in accordance with the provisions of section 921.141 results in findings by the court that such person shall be punished by death, otherwise such person must be punished by life imprisonment and will be ineligible for parole. In the event that the death penalty is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, the court having jurisdiction over a defendant previously sentenced to death for a capital felony is required to cause that defendant to be brought before the court and to sentence that defendant to life imprisonment without possibility of parole. No sentence of death can be reduced as a result of a determination that a method of execution is held unconstitutional under the state constitution or the constitution of the United States.553 A defendant who has committed a life felony on or after July 1, 2008, which is that defendants second or subsequent violation of section 800.04(5)(b) may be punished by a term of imprisonment for life.554 2.16.2. Life felonies A defendant who has been convicted of a life felony committed prior to October 1, 1983, may be punished by a term of imprisonment for life or for a term of years not less than 30; for a life felony committed on or after October 1, 1983, by a term of imprisonment not exceeding 40 years; for a life felony committed on or after July 1, 1995, except for one which was committed on or after September 1, 2005, which is a violation of section 800.04(5)(b), for a term of imprisonment for life or by imprisonment for a term of years not exceeding life imprisonment; and for a life felony committed on or after September 1, 2005, which is a violation of section 800.04(5)(b), by a term of imprisonment for life, or a split sentence that is a term of not less than 25 years imprisonment and not exceeding life imprisonment, followed by probation or community control for the remainder of the person's natural life, as provided in section 948.012(4).555 Note that the provision for not less than 25 years imprisonment is not a minimum mandatory sentence in the ordinary sense. The applicable law does not, for example, render the defendant ineligible for statutory gain time, early release, parole, or control release, or impose any requirement that the defendant serve 100% of the court imposed sentence.556

552

775.082(1) and (2), Fla. Stat. 775.08(1)(a), 775.082(1) and (2), Fla. Stat. 775.082(3)(a)4.b, Fla. Stat. 775.081(b), 775.082(3)(a), Fla. Stat. Montgomery v. State, 36 So. 3d 188 (Fla. 2d DCA 2010).

553

554

555

556

94

 2.16.3. Prison releasee reoffender557 A defendant who qualifies under the Prison Releasee Reoffender Protection Act (PRRPA) must be sentenced to the statutory maximum for each qualifying offense before the court for sentencing, as follows: for a felony punishable by life, by a term of imprisonment for life; ffor a felony of the first degree, by a term of imprisonment of 30 years; for a felony of the second degree, by a term of imprisonment of 15 years; and for a felony of the third degree, by a term of imprisonment of five years. The PRRPA is explained in greater detail in this handout, infra. 2.16.4. Dangerous sexual felony offender558 Notwithstanding section 775.082(3), chapter 958, any other law, or any interpretation or construction thereof, a person subject to sentencing as a Dangerous Sexual Felony Offender (DSFO) under section 794.0115 must be sentenced to the mandatory term of imprisonment of 25 years.559 If the mandatory minimum term of imprisonment imposed under that section exceeds the maximum sentence authorized under section 775.082, section 775.084, or chapter 921, the mandatory minimum term of imprisonment under section 794.0115 must be imposed. If the mandatory minimum term of imprisonment under section 794.0115 is less than the sentence that could be imposed under section 775.082, section 775.084, or chapter 921, the sentence imposed must include the mandatory minimum term of imprisonment under section 794.0115.560 DSFO sentencing is explained in greater detail in this handout, infra. 2.16.5. Felon in possession of firearms or ammunition Felonious possession of firearms or ammunition carries a mandatory minimum prison sentence of three years in cases of actual possession.561 2.16.6. Possession or use of firearm or destructive device in commission of crime Firearm mandatory minimum prison sentences ranging from three years to life apply to the possession, discharge, or infliction of great bodily injury or death through such discharge of a firearm or destructive device in the commission of certain offenses.562

557

775.082(9), Fla. Stat. 794.0115(2)(e) and (6), Fla. Stat. 794.0115(2)(e), Fla. Stat. 794.0115(6), Fla. Stat. 790.23, Fla. Stat. 775.087, Fla. Stat.

558

559

560

561

562

95

 2.16.7. Drug possession, sale, and trafficking Florida has a graduated structure of reclassification of offenses and enhancement of penalties for drug possession and trafficking offenses, the relevant portions of which are summarized as follows: Drug Possession or Sale Except as authorized by Chapters 893 or 499, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. Any person who violates this provision with respect to: 1. A controlled substance named or described in section 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4., commits a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.563 2. A controlled substance named or described in section 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the third degree, punishable as provided in section 775.082, section 775.083, or section 775.084.564 3. A controlled substance named or described in section 893.03(5) commits a misdemeanor of the first degree, punishable as provided in section 775.082 or section 775.083.565 Except as provided in Chapter 893, it is unlawful to sell or deliver in excess of 10 grams of any substance named or described in section 893.03(1)(a) or (1)(b), or any combination thereof, or any mixture containing any such substance. Any person who violates section 893.13(1)(b) commits a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084.566 Except as authorized by Chapter 893, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance in, on, or within 1,000 feet of the real property comprising a child care facility as defined in section 402.302 or a public or private elementary, middle, or secondary school between the hours of 6 a.m. and 12 midnight, or at any time in, on, or within 1,000 feet of real property comprising a state, county, or municipal park, a community center, or a publicly owned recreational facility. For the purposes of section 893.13(1)(c), the term community center means a facility operated by a nonprofit
563

893.13(1)(a)1, Fla. Stat. 893.13(1)(a)2, Fla. Stat. 893.13(1)(a)3, Fla. Stat. 893.13(1)(b), Fla. Stat.

564

565

566

96

community-based organization for the provision of recreational, social, or educational services to the public. Any person who violates section 893.13(1)(c) with respect to: 1. A controlled substance named or described in section 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4., commits a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084. The defendant must be sentenced to a minimum term of imprisonment of three calendar years unless the offense was committed within 1,000 feet of the real property comprising a child care facility as defined in section 402.302.567 2. A controlled substance named or described in section 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.568 3. Any other controlled substance, except as lawfully sold, manufactured, or delivered, must be sentenced to pay a $500 fine and to serve 100 hours of public service in addition to any other penalty prescribed by law.569 Section 893.13(1)(c) does not apply to a child care facility unless the owner or operator of the facility posts a sign that is not less than two square feet in size with a word legend identifying the facility as a licensed child care facility and that is posted on the property of the child care facility in a conspicuous place where the sign is reasonably visible to the public.570 Except as authorized by Chapter 893, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance in, on, or within 1,000 feet of the real property comprising a public or private college, university, or other postsecondary educational institution. Any person who violates section 893.13(1)(d) with respect to: 1. A controlled substance named or described in section 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4., commits a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084.571

567

893.13(1)(c)1, Fla. Stat. 893.13(1)(c)2, Fla. Stat. 893.13(1)(c)3, Fla. Stat. 893.13(1)(c), Fla. Stat. 893.13(1)(d)1, Fla. Stat.

568

569

570

571

97

2. A controlled substance named or described in section 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.572 3. Any other controlled substance, except as lawfully sold, manufactured, or delivered, must be sentenced to pay a $500 fine and to serve 100 hours of public service in addition to any other penalty prescribed by law.573 Except as authorized by Chapter 893, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance not authorized by law in, on, or within 1,000 feet of a physical place for worship at which a church or religious organization regularly conducts religious services or within 1,000 feet of a convenience business as defined in section 812.171. Any person who violates section 893.13(1)(e) with respect to: 1. A controlled substance named or described in section 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4., commits a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084.574 2. A controlled substance named or described in section 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.575 3. Any other controlled substance, except as lawfully sold, manufactured, or delivered, must be sentenced to pay a $500 fine and to serve 100 hours of public service in addition to any other penalty prescribed by law.576 Except as authorized by Chapter 893, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance in, on, or within 1,000 feet of the real property comprising a public housing facility at any time. For purposes of section 893.13(1)(e), the term real property comprising a public housing facility means real property, as defined in section 421.03(12), of a public corporation created as a housing authority pursuant to part I of chapter 421. Any person who violates section 893.13(1)(e) with respect to:

572

893.13(1)(d)2, Fla. Stat. 893.13(1)(d)3, Fla. Stat. 893.13(1)(e)1, Fla. Stat. 893.13(1)(e)2, Fla. Stat. 893.13(1)(e)3, Fla. Stat.

573

574

575

576

98

1. A controlled substance named or described in section 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4., commits a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084.577 2. A controlled substance named or described in section 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.578 3. Any other controlled substance, except as lawfully sold, manufactured, or delivered, must be sentenced to pay a $500 fine and to serve 100 hours of public service in addition to any other penalty prescribed by law.579 Except as authorized by Chapter 893, it is unlawful for any person to manufacture methamphetamine or phencyclidine, or possess any listed chemical as defined in section 893.033 in violation of section 893.149 and with intent to manufacture methamphetamine or phencyclidine. If any person violates section 893.13(1)(g) and: 1. The commission or attempted commission of the crime occurs in a structure or conveyance where any child under 16 years of age is present, the person commits a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084. In addition, the defendant must be sentenced to a minimum term of imprisonment of five calendar years.580 2. The commission of the crime causes any child under 16 years of age to suffer great bodily harm, the person commits a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084. In addition, the defendant must be sentenced to a minimum term of imprisonment of 10 calendar years.581 Except as authorized by Chapter 893, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance in, on, or within 1,000 feet of the real property comprising an assisted living facility, as that term is used in chapter 429. Any person who violates section 893.13(1)(h) with respect to:

577

893.13(1)(f)1, Fla. Stat. 893.13(1)(f)2, Fla. Stat. 893.13(1)(f)3, Fla. Stat. 893.13(1)(g)1, Fla. Stat. 893.13(1)(g)2, Fla. Stat.

578

579

580

581

99

1. A controlled substance named or described in section 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4. commits a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084.582 2. A controlled substance named or described in section 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.583 Except as authorized by Chapter 893 and chapter 499, it is unlawful for any person to purchase, or possess with intent to purchase, a controlled substance. Any person who violates section 893.13(2)(a) with respect to: 1. A controlled substance named or described in section 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4., commits a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.584 2. A controlled substance named or described in section 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the third degree, punishable as provided in section 775.082, section 775.083, or section 775.084.585 3. A controlled substance named or described in section 893.03(5) commits a misdemeanor of the first degree, punishable as provided in section 775.082 or section 775.083.586 Except as provided in chapter 893, it is unlawful to purchase in excess of 10 grams of any substance named or described in section 893.03(1)(a) or (1)(b), or any combination thereof, or any mixture containing any such substance. Any person who violates section 893.13(2)(b) commits a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084.587

582

893.13(1)(h)1, Fla. Stat. 893.13(1)(h)2, Fla. Stat. 893.13(2)(a)1, Fla. Stat. 893.13(2)(a)2, Fla. Stat. 893.13(2)(a)3, Fla. Stat. 893.13(2)(b), Fla. Stat.

583

584

585

586

587

100

Any person who delivers, without consideration, not more than 20 grams of cannabis, as defined in Chapter 893, commits a misdemeanor of the first degree, punishable as provided in section 775.082 or section 775.083.588 Except as authorized by Chapter 893, it is unlawful for any person 18 years of age or older to deliver any controlled substance to a person under the age of 18 years, or to use or hire a person under the age of 18 years as an agent or employee in the sale or delivery of such a substance, or to use such person to assist in avoiding detection or apprehension for a violation of this chapter. Any person who violates this provision with respect to: (a) A controlled substance named or described in section 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4., commits a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084.589 (b) A controlled substance named or described in section 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084. Imposition of sentence may not be suspended or deferred, nor can the person so convicted be placed on probation.590 It is unlawful for any person to bring into Florida any controlled substance unless the possession of such controlled substance is authorized by Chapter 893 or unless such person is licensed to do so by the appropriate federal agency. Any person who violates this provision with respect to: (a) A controlled substance named or described in section 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4., commits a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.591 (b) A controlled substance named or described in section 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the third degree, punishable as provided in section 775.082, section 775.083, or section 775.084.592

588

893.13(3), Fla. Stat. 893.13(4)(a), Fla. Stat. 893.13(4)(b), Fla. Stat. 893.13(5)(a), Fla. Stat. 893.13(5)(b), Fla. Stat.

589

590

591

592

101

(c) A controlled substance named or described in section 893.03(5) commits a misdemeanor of the first degree, punishable as provided in section 775.082 or section 775.083.593 It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree, punishable as provided in section 775.082, section 775.083, or section 775.084.594 If the offense is the possession of not more than 20 grams of cannabis, as defined in Chapter 893, or 3 grams or less of a controlled substance described in section 893.03(1)(c)46.-50., 114.-142., 151.-159., or 166.-169., the person commits a misdemeanor of the first degree, punishable as provided in section 775.082 or section 775.083.595 Except as provided in chapter 893, it is unlawful to possess in excess of 10 grams of any substance named or described in section 893.03(1)(a) or (1)(b), or any combination thereof, or any mixture containing any such substance. Any person who violates section 893.13(6)(c) commits a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084.596 If a person violates any provision of Chapter 893 and the violation results in a serious injury to a state or local law enforcement officer as defined in section 943.10, firefighter as defined in section 633.30, emergency medical technician as defined in section 401.23, paramedic as defined in section 401.23, employee of a public utility or an electric utility as defined in section 366.02, animal control officer as defined in section 828.27, volunteer firefighter engaged by state or local government, law enforcement officer employed by the Federal Government, or any other local, state, or Federal Government employee injured during the course and scope of his or her employment, the person commits a felony of the third degree, punishable as provided in section 775.082, section 775.083, or section 775.084. If the injury sustained results in death or great bodily harm, the person commits a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.597

593

893.13(5)(c), Fla. Stat. 893.13(6)(a), Fla. Stat. 893.13(6)(b), Fla. Stat. 893.13(6)(c), Fla. Stat. 893.13(10), Fla. Stat.

594

595

596

597

102

Drug Trafficking Except as authorized in Chapters 893 or 499 and notwithstanding the provisions of section 893.13: Any person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, or who is knowingly in actual or constructive possession of, in excess of 25 pounds of cannabis, or 300 or more cannabis plants, commits a felony of the first degree, which felony is known as trafficking in cannabis, punishable as provided in section 775.082, section 775.083, or section 775.084. If the quantity of cannabis involved: 1. Is in excess of 25 pounds, but less than 2,000 pounds, or is 300 or more cannabis plants, but not more than 2,000 cannabis plants, such person must be sentenced to a mandatory minimum term of imprisonment of three years, and the defendant must be ordered to pay a fine of $25,000.598 2. Is 2,000 pounds or more, but less than 10,000 pounds, or is 2,000 or more cannabis plants, but not more than 10,000 cannabis plants, such person must be sentenced to a mandatory minimum term of imprisonment of seven years, and the defendant must be ordered to pay a fine of $50,000.599 3. Is 10,000 pounds or more, or is 10,000 or more cannabis plants, such person must be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and pay a fine of $200,000. Upon conviction, the court must impose the longest term of imprisonment provided for in section 893.135(1)(a).600 Any person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine, as described in section 893.03(2)(a)4., or of any mixture containing cocaine, but less than 150 kilograms of cocaine or any such mixture, commits a felony of the first degree, which felony is be known as trafficking in cocaine, punishable as provided in section 775.082, section 775.083, or section 775.084. If the quantity involved: a. Is 28 grams or more, but less than 200 grams, such person must be sentenced to a mandatory minimum term of imprisonment of three years, and the defendant must be ordered to pay a fine of $50,000.601

598

893.135(1)(a)1, Fla. Stat. 893.135(1)(a)2, Fla. Stat. 893.135(1)(a)3, Fla. Stat. 893.135(1)(b)1.a, Fla. Stat.

599

600

601

103

b. Is 200 grams or more, but less than 400 grams, such person must be sentenced to a mandatory minimum term of imprisonment of seven years, and the defendant must be ordered to pay a fine of $100,000.602 c. Is 400 grams or more, but less than 150 kilograms, such person must be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and pay a fine of $250,000.603 Any person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, or who is knowingly in actual or constructive possession of, 150 kilograms or more of cocaine, as described in section 893.03(2)(a)4., commits the first degree felony of trafficking in cocaine. A person who has been convicted of the first degree felony of trafficking in cocaine under section 893.135(1)(b)2. must be punished by life imprisonment and is ineligible for any form of discretionary early release except pardon or executive clemency or conditional medical release under section 947.149. However, if the court determines that, in addition to committing any act specified in section 893.135(1)(b)2. the person intentionally killed an individual or counseled, commanded, induced, procured, or caused the intentional killing of an individual and such killing was the result; or the person's conduct in committing that act led to a natural, though not inevitable, lethal result, such person commits the capital felony of trafficking in cocaine, punishable as provided in sections 775.082 and 921.142. Any person sentenced for a capital felony under section 893.135(1)(b)2. must be sentenced to pay the maximum fine provided under section 893.135(1)(b)1.604 Any person who knowingly brings into Florida 300 kilograms or more of cocaine, as described in section 893.03(2)(a)4., and who knows that the probable result of such importation would be the death of any person, commits capital importation of cocaine, a capital felony punishable as provided in sections 775.082 and 921.142. Any person sentenced for a capital felony under section 893.135(1)(b)3., must also be sentenced to pay the maximum fine provided under section 893.135(1)(b)1.605 Any person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, or who is knowingly in actual or constructive possession of, four grams or more of any morphine, opium, oxycodone, hydrocodone, hydromorphone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, as described in section 893.03(1)(b), (2)(a), (3)(c)3., or (3)(c)4., or four grams or more of any mixture containing any such substance, but less than 30 kilograms of such substance or mixture, commits a felony of the first degree, which felony is known as trafficking in illegal drugs, punishable as provided in section 775.082, section 775.083, or section 775.084. If the quantity involved:
602

893.135(1)(b)1.b, Fla. Stat. 893.135(1)(b)1.c, Fla. Stat. 893.135(1)(b)2, Fla. Stat. 893.135(1)(b)3, Fla. Stat.

603

604

605

104

a. Is 4 grams or more, but less than 14 grams, such person must be sentenced to a mandatory minimum term of imprisonment of three years, and the defendant must be ordered to pay a fine of $50,000.606 b. Is 14 grams or more, but less than 28 grams, such person must be sentenced to a mandatory minimum term of imprisonment of 15 years, and the defendant must be ordered to pay a fine of $100,000.607 c. Is 28 grams or more, but less than 30 kilograms, such person must be sentenced to a mandatory minimum term of imprisonment of 25 calendar years and pay a fine of $500,000.608 Any person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, or who is knowingly in actual or constructive possession of, 30 kilograms or more of any morphine, opium, oxycodone, hydrocodone, hydromorphone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, as described in section 893.03(1)(b), (2)(a), (3)(c)3., or (3)(c)4., or 30 kilograms or more of any mixture containing any such substance, commits the first degree felony of trafficking in illegal drugs. A person who has been convicted of the first degree felony of trafficking in illegal drugs under this subparagraph must be punished by life imprisonment and is ineligible for any form of discretionary early release except pardon or executive clemency or conditional medical release under section 947.149.609 However, if the court determines that, in addition to committing any act specified in section 893.135(1)(c)2: a. The person intentionally killed an individual or counseled, commanded, induced, procured, or caused the intentional killing of an individual and such killing was the result; or b. The persons conduct in committing that act led to a natural, though not inevitable, lethal result, such person commits the capital felony of trafficking in illegal drugs, punishable as provided in sections 775.082 and 921.142. Any person sentenced for a capital felony under section 893.135(1)(c)2. must be sentenced to pay the maximum fine provided under section 893.135(1)(c)1.610

606

893.135(1)(c)1.a, Fla. Stat. 893.135(1)(c)1.b, Fla. Stat. 893.135(1)(c)1.c, Fla. Stat. 893.135(1)(c)2, Fla. Stat. 893.135(1)(c)2, Fla. Stat.

607

608

609

610

105

Any person who knowingly brings into Florida 60 kilograms or more of any morphine, opium, oxycodone, hydrocodone, hydromorphone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, as described in section 893.03(1)(b), (2)(a), (3)(c)3., or (3)(c)4., or 60 kilograms or more of any mixture containing any such substance, and who knows that the probable result of such importation would be the death of any person, commits capital importation of illegal drugs, a capital felony punishable as provided in sections 775.082 and 921.142. Any person sentenced for a capital felony under this paragraph must also be sentenced to pay the maximum fine provided under section 893.135(1)(c)1.611 Any person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, or who is knowingly in actual or constructive possession of, 28 grams or more of phencyclidine or of any mixture containing phencyclidine, as described in section 893.03(2)(b), commits a felony of the first degree, which felony is be known as trafficking in phencyclidine, punishable as provided in section 775.082, section 775.083, or section 775.084. If the quantity involved: a. Is 28 grams or more, but less than 200 grams, such person must be sentenced to a mandatory minimum term of imprisonment of three years, and the defendant must be ordered to pay a fine of $50,000.612 b. Is 200 grams or more, but less than 400 grams, such person must be sentenced to a mandatory minimum term of imprisonment of seven years, and the defendant must be ordered to pay a fine of $100,000.613 c. Is 400 grams or more, such person must be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and pay a fine of $250,000.614 Any person who knowingly brings into Florida 800 grams or more of phencyclidine or of any mixture containing phencyclidine, as described in section 893.03(2)(b), and who knows that the probable result of such importation would be the death of any person commits capital importation of phencyclidine, a capital felony punishable as provided in sections 775.082 and 921.142. Any person sentenced for a capital felony under this paragraph must also be sentenced to pay the maximum fine provided under subparagraph 1.615

611

893.135(1)(c)3, Fla. Stat. 893.135(1)(d)1.a, Fla. Stat. 893.135(1)(d)1.b, Fla. Stat. 893.135(1)(d)1.c, Fla. Stat. 893.135(1)(d)2, Fla. Stat.

612

613

614

615

106

Any person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, or who is knowingly in actual or constructive possession of, 200 grams or more of methaqualone or of any mixture containing methaqualone, as described in section 893.03(1)(d), commits a felony of the first degree, which felony is known as trafficking in methaqualone, punishable as provided in section 775.082, section 775.083, or section 775.084. If the quantity involved: a. Is 200 grams or more, but less than five kilograms, such person must be sentenced to a mandatory minimum term of imprisonment of three years, and the defendant must be ordered to pay a fine of $50,000.616 b. Is 5 kilograms or more, but less than 25 kilograms, such person must be sentenced to a mandatory minimum term of imprisonment of seven years, and the defendant must be ordered to pay a fine of $100,000.617 c. Is 25 kilograms or more, such person must be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and pay a fine of $250,000.618 Any person who knowingly brings into Florida 50 kilograms or more of methaqualone or of any mixture containing methaqualone, as described in section 893.03(1)(d), and who knows that the probable result of such importation would be the death of any person commits capital importation of methaqualone, a capital felony punishable as provided in sections 775.082 and 921.142. Any person sentenced for a capital felony under this paragraph must also be sentenced to pay the maximum fine provided under section 893.135(1)(e)1.619 Any person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, or who is knowingly in actual or constructive possession of, 14 grams or more of amphetamine, as described in section 893.03(2)(c)2., or methamphetamine, as described in section 893.03(2)(c)4., or of any mixture containing amphetamine or methamphetamine, or phenylacetone, phenylacetic acid, pseudoephedrine, or ephedrine in conjunction with other chemicals and equipment utilized in the manufacture of amphetamine or methamphetamine, commits a felony of the first degree, which felony is known as trafficking in amphetamine, punishable as provided in section 775.082, section 775.083, or section 775.084. If the quantity involved:

616

893.135(1)(e)1.a, Fla. Stat. 893.135(1)(e)1.b, Fla. Stat. 893.135(1)(e)1.c, Fla. Stat. 893.135(1)(e)2, Fla. Stat.

617

618

619

107

a. Is 14 grams or more, but less than 28 grams, such person must be sentenced to a mandatory minimum term of imprisonment of three years, and the defendant must be ordered to pay a fine of $50,000.620 b. Is 28 grams or more, but less than 200 grams, such person must be sentenced to a mandatory minimum term of imprisonment of seven years, and the defendant must be ordered to pay a fine of $100,000.621 c. Is 200 grams or more, such person must be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and pay a fine of $250,000.622 Any person who knowingly manufactures or brings into Florida 400 grams or more of amphetamine, as described in section 893.03(2)(c)2., or methamphetamine, as described in section 893.03(2)(c)4., or of any mixture containing amphetamine or methamphetamine, or phenylacetone, phenylacetic acid, pseudoephedrine, or ephedrine in conjunction with other chemicals and equipment used in the manufacture of amphetamine or methamphetamine, and who knows that the probable result of such manufacture or importation would be the death of any person commits capital manufacture or importation of amphetamine, a capital felony punishable as provided in sections 775.082 and 921.142. Any person sentenced for a capital felony under section 893.135(1)(f)2. must also be sentenced to pay the maximum fine provided under section 893.135(1)(f)1.623 Any person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, or who is knowingly in actual or constructive possession of, four grams or more of flunitrazepam or any mixture containing flunitrazepam as described in section 893.03(1)(a) commits a felony of the first degree, which felony is known as trafficking in flunitrazepam, punishable as provided in section 775.082, section 775.083, or section 775.084. If the quantity involved: a. Is four grams or more but less than 14 grams, such person must be sentenced to a mandatory minimum term of imprisonment of three years, and the defendant must be ordered to pay a fine of $50,000.624

620

893.135(1)(f)1.a, Fla. Stat. 893.135(1)(f)1.b, Fla. Stat. 893.135(1)(f)1.c, Fla. Stat. 893.135(1)(f)2, Fla. Stat. 893.135(1)(g)1.a, Fla. Stat.

621

622

623

624

108

b. Is 14 grams or more but less than 28 grams, such person must be sentenced to a mandatory minimum term of imprisonment of seven years, and the defendant must be ordered to pay a fine of $100,000.625 c. Is 28 grams or more but less than 30 kilograms, such person must be sentenced to a mandatory minimum term of imprisonment of 25 calendar years and pay a fine of $500,000.626 Any person who knowingly sells, purchases, manufactures, delivers, or brings into Florida or who is knowingly in actual or constructive possession of 30 kilograms or more of flunitrazepam or any mixture containing flunitrazepam as described in section 893.03(1)(a) commits the first degree felony of trafficking in flunitrazepam. A person who has been convicted of the first degree felony of trafficking in flunitrazepam under section 893.135(1)(g)2. must be punished by life imprisonment and is ineligible for any form of discretionary early release except pardon or executive clemency or conditional medical release under section 947.149. However, if the court determines that, in addition to committing any act specified in section 893.135(1)(g)2.: a. The person intentionally killed an individual or counseled, commanded, induced, procured, or caused the intentional killing of an individual and such killing was the result; or b. The persons conduct in committing that act led to a natural, though not inevitable, lethal result, such person commits the capital felony of trafficking in flunitrazepam, punishable as provided in sections 775.082 and 921.142. Any person sentenced for a capital felony under section 893.135(1)(g)2. must also be sentenced to pay the maximum fine provided under section 893.135(1)(g)1.627 Any person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, or who is knowingly in actual or constructive possession of, one kilogram or more of gamma-hydroxybutyric acid (GHB), as described in section 893.03(1)(d), or any mixture containing gamma-hydroxybutyric acid (GHB), commits a felony of the first degree, which felony is known as trafficking in gamma-hydroxybutyric acid (GHB), punishable as provided in section 775.082, section 775.083, or section 775.084. If the quantity involved:

625

893.135(1)(g)1.b, Fla. Stat. 893.135(1)(g)1.c, Fla. Stat. 893.135(1)(g)2, Fla. Stat.

626

627

109

a. Is one kilogram or more but less than five kilograms, such person must be sentenced to a mandatory minimum term of imprisonment of three years, and the defendant must be ordered to pay a fine of $50,000.628 b. Is five kilograms or more but less than 10 kilograms, such person must be sentenced to a mandatory minimum term of imprisonment of seven years, and the defendant must be ordered to pay a fine of $100,000.629 c. Is 10 kilograms or more, such person must be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and pay a fine of $250,000.630 Any person who knowingly manufactures or brings into Florida 150 kilograms or more of gamma-hydroxybutyric acid (GHB), as described in section 893.03(1)(d), or any mixture containing gamma-hydroxybutyric acid (GHB), and who knows that the probable result of such manufacture or importation would be the death of any person commits capital manufacture or importation of gamma-hydroxybutyric acid (GHB), a capital felony punishable as provided in sections 775.082 and 921.142. Any person sentenced for a capital felony under section 893.135(1)(h)2 must also be sentenced to pay the maximum fine provided under section 893.135(1)(h)1.631 Any person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, or who is knowingly in actual or constructive possession of, one kilogram or more of gamma-butyrolactone (GBL), as described in section 893.03(1)(d), or any mixture containing gamma-butyrolactone (GBL), commits a felony of the first degree, which felony is known as trafficking in gamma-butyrolactone (GBL), punishable as provided in section 775.082, section 775.083, or section 775.084. If the quantity involved: a. Is one kilogram or more but less than five kilograms, such person must be sentenced to a mandatory minimum term of imprisonment of three years, and the defendant must be ordered to pay a fine of $50,000.632 b. Is five kilograms or more but less than 10 kilograms, such person must be sentenced to a mandatory minimum term of imprisonment of seven years, and the defendant must be ordered to pay a fine of $100,000.633
628

893.135(1)(h)1.a, Fla. Stat. 893.135(1)(h)1.b, Fla. Stat. 893.135(1)(h)1.c, Fla. Stat. 893.135(1)(h)2, Fla. Stat. 893.135(1)(i)1.a, Fla. Stat. 893.135(1)(i)1.b, Fla. Stat.

629

630

631

632

633

110

c. Is 10 kilograms or more, such person must be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and pay a fine of $250,000.634 Any person who knowingly manufactures or brings into the state 150 kilograms or more of gamma-butyrolactone (GBL), as described in section 893.03(1)(d), or any mixture containing gamma-butyrolactone (GBL), and who knows that the probable result of such manufacture or importation would be the death of any person commits capital manufacture or importation of gamma-butyrolactone (GBL), a capital felony punishable as provided in sections 775.082 and 921.142. Any person sentenced for a capital felony under section 893.135(1)(i)2. must also be sentenced to pay the maximum fine provided under section 893.135(1)(i)1.635 Any person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, or who is knowingly in actual or constructive possession of, one kilogram or more of 1,4-Butanediol as described in section 893.03(1)(d), or of any mixture containing 1,4-Butanediol, commits a felony of the first degree, which felony is known as trafficking in 1,4-Butanediol, punishable as provided in section 775.082, section 775.083, or section 775.084. If the quantity involved: a. Is one kilogram or more, but less than five kilograms, such person must be sentenced to a mandatory minimum term of imprisonment of three years, and the defendant must be ordered to pay a fine of $50,000.636 b. Is five kilograms or more, but less than 10 kilograms, such person must be sentenced to a mandatory minimum term of imprisonment of seven years, and the defendant must be ordered to pay a fine of $100,000.637 c. Is 10 kilograms or more, such person must be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and pay a fine of $500,000.638 Any person who knowingly manufactures or brings into Florida 150 kilograms or more of1,4-Butanediol as described in section 893.03(1)(d), or any mixture containing 1,4-Butanediol, and who knows that the probable result of such manufacture or importation would be the death of any person commits capital manufacture or importation of 1,4-Butanediol, a capital felony punishable as provided in sections 775.082 and 921.142. Any person sentenced for a capital felony under

634

893.135(1)(i)1.c, Fla. Stat. 893.135(1)(i)2, Fla. Stat. 893.135(1)(j)1.a, Fla. Stat. 893.135(1)(j)1.b, Fla. Stat. 893.135(1)(j)1.c, Fla. Stat.

635

636

637

638

111

section 893.135(1)(j)2. must also be sentenced to pay the maximum fine provided under section 893.135(1)(j)1.639 Any person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, or who is knowingly in actual or constructive possession of, 10 grams or more of any of the following substances described in section 893.03(1)(c): 3,4-Methylenedioxymethamphetamine (MDMA); 4-Bromo-2,5-dimethoxyamphetamine; 4-Bromo-2,5-dimethoxyphenethylamine; 2,5-Dimethoxyamphetamine; 2,5-Dimethoxy-4-ethylamphetamine (DOET); N-ethylamphetamine; N-Hydroxy-3,4-methylenedioxyamphetamine; 5-Methoxy-3,4-methylenedioxyamphetamine; 4-methoxyamphetamine; 4-methoxymethamphetamine; 4-Methyl-2,5-dimethoxyamphetamine; 3 , 4 - M e t h yl e n e d i o x y- N - e t h yl a m phet ami ne; 3,4-M et hyl enedi ox yam p h e t a m i n e ; N,N-dimethylamphetamine; or 3,4,5-Trimethoxyamphetamine, individually or in any combination of or any mixture containing any such substance, commits a felony of the first degree, which felony is known as trafficking in Phenethylamines, punishable as provided in section 775.082, section 775.083, or section 775.084.640 If the quantity involved: a. Is 10 grams or more but less than 200 grams, such person must be sentenced to a mandatory minimum term of imprisonment of three years, and the defendant must be ordered to pay a fine of $50,000.641 b. Is 200 grams or more, but less than 400 grams, such person must be sentenced to a mandatory minimum term of imprisonment of seven years, and the defendant must be ordered to pay a fine of $100,000.642 c. Is 400 grams or more, such person must be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and pay a fine of $250,000.643 Any person who knowingly manufactures or brings into Florida 30 kilograms or more of any of the following substances described in section 893.03(1)(c): 3,4-Methylenedioxymethamphetamine (MDMA); 4-Bromo-2,5-dimethoxyamphetamine; 4-Bromo-2,5-dimethoxyphenethylamine; 2,5-Dimethoxyamphetamine; 2,5-Dimethoxy-4-ethylamphetamine (DOET); N-ethylamphetamine; N-Hydroxy-3,4-methylenedioxyamphetamine; 5-Methoxy-3,4-methylenedioxyamphetamine; 4-methoxyamphetamine; 4-methoxymethamphetamine; 4-Methyl-2,5-dimethoxyamphetamine; 3 , 4-M et h yl ened i o x y- N - e t h yl a m p h e t a m i n e ; 3 , 4 - M e t h yl e nedi ox yamphet am i n e;

639

893.135(1)(j)2, Fla. Stat. 893.135(1)(k)1, Fla. Stat. 893.135(1)(k)2.a, Fla. Stat. 893.135(1)(k)2.b, Fla. Stat. 893.135(1)(k)2.c, Fla. Stat.

640

641

642

643

112

N,N-dimethylamphetamine; or 3,4,5-Trimethoxyamphetamine, individually or in any combination of or any mixture containing any such substance, and who knows that the probable result of such manufacture or importation would be the death of any person commits capital manufacture or importation of Phenethylamines, a capital felony punishable as provided in sections 775.082 and 921.142. Any person sentenced for a capital felony under section 893.135(1)(k)2. must also be sentenced to pay the maximum fine provided under section 893.135(1)(k)1.644 Any person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, or who is knowingly in actual or constructive possession of, one gram or more of lysergic acid diethylamide (LSD) as described in section 893.03(1)(c), or of any mixture containing lysergic acid diethylamide (LSD), commits a felony of the first degree, which felony is known as trafficking in lysergic acid diethylamide (LSD), punishable as provided in section 775.082, section 775.083, or section 775.084. If the quantity involved: a. Is one gram or more, but less than five grams, such person must be sentenced to a mandatory minimum term of imprisonment of three years, and the defendant must be ordered to pay a fine of $50,000.645 b. Is five grams or more, but less than seven grams, such person must be sentenced to a mandatory minimum term of imprisonment of seven years, and the defendant must be ordered to pay a fine of $100,000.646 c. Is seven grams or more, such person must be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and pay a fine of $500,000.647 Any person who knowingly manufactures or brings into Florida seven grams or more of lysergic acid diethylamide (LSD) as described in section 893.03(1)(c), or any mixture containing lysergic acid diethylamide (LSD), and who knows that the probable result of such manufacture or importation would be the death of any person commits capital manufacture or importation of lysergic acid diethylamide (LSD), a capital felony punishable as provided in sections 775.082 and 921.142. Any person sentenced for a capital felony under section 893.135(1)(l)2. must also be sentenced to pay the maximum fine provided under section 893.135(1)(l)1.648

644

893.135(1)(k)3, Fla. Stat. 893.135(1)(l)1.a, Fla. Stat. 893.135(1)(l)1.b, Fla. Stat. 893.135(1)(l)1.c, Fla. Stat. 893.135(1)(l)2, Fla. Stat.

645

646

647

648

113

Notwithstanding the provisions of section 948.01, with respect to any person who is found to have violated section 893.135, adjudication of guilt or imposition of sentence cannot be suspended, deferred, or withheld, nor is such person be eligible for parole prior to serving the mandatory minimum term of imprisonment prescribed by section 893.135. A person sentenced to a mandatory minimum term of imprisonment under section 893.135 is not eligible for any form of discretionary early release, except pardon or executive clemency or conditional medical release under section 947.149, prior to serving the mandatory minimum term of imprisonment.649 Any person who agrees, conspires, combines, or confederates with another person to commit any act prohibited by section 893.135(1) commits a felony of the first degree and is punishable as if he or she had actually committed such prohibited act. Nothing in section 893.155(5) can be construed to prohibit separate convictions and sentences for a violation of section 893.135(5) and any violation of section 893.135(1).650 To ensure that the judiciary adheres to the legislative intent behind the trafficking statute, the Florida legislature has amended the statute to add a separate paragraph stating its findings that the opinion of the Florida Supreme Court in Hayes v. State651 does not correctly construe legislative intent as regards section 893.135, and that the district court opinions in State v. Hayes652 and State v. Baxley653 correctly construe legislative intent.654 2.16.8. Manufacture of drugs in presence of children Mandatory minimum prison sentences of five and 10 years apply to convictions for the manufacture or possession of methamphetamine or phencyclidine in a structure or conveyance where any child under the age of 16 years is present, or where such manufacture or possession causes any child under 16 years of age to suffer great bodily harm.655

649

893.135(3), Fla. Stat. 893.135(5), Fla. Stat. Hayes v. State, 750 So. 2d 1 (Fla. 1999). State v. Hayes, 720 So. 2d 1095 (Fla. 4th DCA 1998), decision quashed, 750 So. 2d 1 (Fla. 1999). State v. Baxley, 684 So. 2d 831 (Fla. 5th DCA 1996). 893.135(7), Fla. Stat. 893.13(1)(g), Fla. Stat.

650

651

652

653

654

655

114

 2.16.9. DUI manslaughter There is a mandatory minimum sentence of four years imprisonment for a person who is convicted of DUI manslaughter.656 2.16.10. Leaving the scene of a crash resulting in death A mandatory minimum sentence of two years imprisonment applies to convictions of the driver of a vehicle involved in a crash on public or private property that results in the death of any person, who willfully does not stop the vehicle and remain at the scene of the crash, or as close thereto as possible, and remain at the scene until he or she has fulfilled the requirements of section 316.062.657 2.16.11. Fleeing or attempting to elude law enforcement Mandatory minimum prison sentences of three years apply to convictions for fleeing or attempting to elude a law enforcement officer at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, and causes serious bodily injury or death to another person,658 or for aggravated fleeing or eluding with serious bodily injury or death.659 2.16.12. Assault or battery on law enforcement officers and other designated persons Mandatory minimum prison sentences of three to eight years, along with reclassification of the offense, apply to convictions of assault or battery of law enforcement officers, firefighters, emergency medical care providers, or other specified officers.660 2.16.13. Murder or attempted murder of a law enforcement officer Notwithstanding section 775.082, section 775.0823, section 782.04, section 782.051, and chapter 921, a defendant must be sentenced to life imprisonment without eligibility for release upon findings by the trier of fact that, beyond a reasonable doubt that: (1) the defendant committed murder in the first degree in violation of section 782.04(1) and a death sentence was not imposed; murder in the second or third degree in violation of section 782.04(2), (3), or (4); attempted murder in the first or second degree in violation of section 782.04(1)(a)1. or (2); or attempted felony murder in

656

316.193(3)(c)3, Fla. Stat. 316.027(1)(b), Fla. Stat. 316.1935(3)(b), Fla. Stat. 316.1935(4)(b), Fla. Stat. 784.07, Fla. Stat.

657

658

659

660

115

violation of section 782.051; and (2) the victim of the offense was a law enforcement officer, part-time law enforcement officer, or auxiliary law enforcement officer, as those terms are defined in section 943.10, engaged in the lawful performance of a legal duty.661 2.16.14. Aggravated assault or battery on an elderly person A mandatory minimum prison sentence of three years, along with reclassification of the offense, applies to convictions for aggravated assault or aggravated battery upon a person 65 years of age or older.662 2.16.15. Domestic violence There is a minimum term of one years probation for a person who has been found guilty of, has had adjudication withheld on, or has pled nolo contendere to a crime of domestic violence.663 If a defendant is adjudicated guilty of a crime of domestic violence, as defined in section 741.28, and the defendant has intentionally caused bodily harm to another person, the court must order the defendant to serve a minimum of five days in the county jail as part of the sentence imposed, unless the court sentences the defendant to a nonsuspended period of incarceration in a state correctional facility. This provision does not preclude the court from sentencing the defendant to probation, community control, or an additional period of incarceration.664 2.16.16. Elimination of the Taylor window Note that one factor that had been a consideration in enhanced sentencing, depending on the date of offense and venue in Florida, was the Taylor Window. Taylor v. State665 held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses under section 893.135, Fla. Stat., is unconstitutional because it violates the single subject rule of the Florida Constitution. In 2002, the legislature reenacted the provisions originally contained in chapter 99-188. However, in Green v. State,666 the Second District held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the ex post facto clauses of the United States and Florida constitutions. The window for asserting challenges based on the unconstitutionality of chapter 99-188 opened on July 1, 1999, and closed on April 29, 2002, the effective date of chapter 02-208 through 02-212,
661

782.065, Fla. Stat. 784.08, Fla. Stat. 741.281, Fla. Stat. 742.283, Fla. Stat. Taylor v. State, 818 So. 2d 544 (Fla. 2d DCA 2002). Green v. State, 839 So. 2d 748 (Fla. 2d DCA 2003), decision quashed, 887 So. 2d 1089 (Fla. 2004).

662

663

664

665

666

116

Laws of Florida.667 Taylor conflicted with the First, Third, and Fourth District Courts of Appeals decisions in Hernandez-Molina v. State;668 Watson v. State;669 and State v. Franklin,670 and Green conflicted with the Fourth Districts decision in Hersey v. State.671 The matter was finally resolved with the issuance of the Florida Supreme Courts opinion in State v. Green,672 which concluded that Chapter 99-188 did not violate the single subject clause of the Florida Constitution and approved the Third Districts decision in Franklin and the Fourth Districts opinion in Hernandez-Molina, quashed the Second Districts opinion in Green, and disapproved the Second Districts opinion in Taylor. 2.17. Prison releasee reoffender An often-encountered sentence enhancement occurs where the defendant has been designated a prison releasee reoffender (PRR). A prison releasee reoffender is defined in section 775.082(9)(a)1., Fla. Stat., the Prison Releasee Reoffender Punishment Act (PRRPA), as any defendant who commits, or attempts to commit: treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; arson; kidnapping; aggravated assault with a deadly weapon; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; any felony that involves the use or threat of physical force or violence against an individual; armed burglary;673 burglary of a dwelling674 or burglary of an occupied structure; or any felony violation of sections 790.07, 800.04, 827.03, 827.071 or 847.0135(5), Fla. Stat., within 3 years of being released from a state correctional facility operated
667

See, Green v. State, 839 So. 2d 748, 750 n.1 (Fla. 2d DCA 2003), decision quashed, 887 So. 2d 1089 (Fla. 2004).
668

Hernandez-Molina v. State, 860 So. 2d 483 (Fla. 4th DCA 2003). Watson v. State, 842 So. 2d 275 (Fla. 1st DCA 2003). State v. Franklin, 836 So. 2d 1112 (Fla. 3d DCA 2003), decision approved, 887 So. 2d 1063 (Fla. 2004).

669

670

Hersey v. State, 831 So. 2d 679 (Fla. 5th DCA 2002); see also, Hernandez-Molina v. State, 860 So. 2d 483 (Fla. 4th DCA 2003) (ch. 99-188 may not be retroactively applied); Jones v. State, 872 So. 2d 938 (Fla. 5th DCA 2004), decision quashed, 908 So. 2d 1054 (Fla. 2005) and opinion withdrawn, 944 So. 2d 1008 (Fla. 5th DCA 2005) (holding that the retroactive application of ch. 02-209 is an impermissible violation of the ex post facto clauses of the United States and Florida constitutions).
672

671

State v. Green, 887 So. 2d 1089 (Fla. 2004).

Note that occupied versus unoccupied makes no difference if an armed burglary is involved. Eubanks v. State, 917 So. 2d 898 (Fla. 5th DCA 2005). Although the original version of the PRRPA was not applicable to burglaries of unoccupied dwellings or structures, the statute was amended effective July 1, 2001 to clarify that it encompassed all dwellings. Ch. 2001239, section 1, at 2193, Laws of Florida. This amendment is not retroactive. Hanna v. State, 898 So. 2d 1200 (Fla. 5th DCA 2005); see, State v. Eldredge, 801 So. 2d 965 (Fla. 4th DCA 2001); Rock v. State, 800 So. 2d 298 (Fla. 3d DCA 2001).
674

673

117

by the Department of Corrections or a private vendor, or within 3 years after being released from a correctional institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is punishable by more than 1 year in the State of Florida. The out-of-state offense referred to in section 775.082(9)(a) has been interpreted to require that the elements of the out-of-state offense would be sufficient for a conviction under a Florida statute that is punishable as a felony, and the version of the Florida statute to analyze is the version in effect when the out-of-state offense was committed.675 Subsection (9)(a)2. also defines a PRR as any defendant who commits or attempts to commit any of these listed offenses while the defendant was serving a prison sentence or on escape status from a state correctional facility operated by the Department of Corrections or a private vendor or while the defendant was on escape status from a correctional institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is punishable by more than 1 year in the State of Florida. Note that the crime of DUI manslaughter is a qualifying listed offense under the PRRPA, because the legislature has provided for manslaughter as a qualifying offense without limitation.676 Similarly, the legislature has listed burglary of a dwelling as a qualifying offense without limitation, and so burglary of a dwelling with enhancement for assault or battery also qualifies for sentencing under the PRRPA.677 Note, also, that prior to July 1, 2001, the PRRPA, section 775.082(9)(a)1.q., listed burglary of an occupied structure or dwelling as a qualifying offense, and so burglary of an unoccupied dwelling committed prior to that date is not a qualifying offense.678 A defendant need only commit a qualifying offense within three years of his or her release and need not be convicted of that crime within three years of release.679 For continuing offenses such as stalking, the beginning date of the offense must be on or before the effective date such offense became a PRR qualified, and not before.680 The word release in section 775.082(9)(a)1., Fla. Stat., means actual release from a state prison sentence, not release from a temporary confinement that happens to be in state prison. This means that, where an inmate is placed on parole or release supervision (e.g., control release, conditional release, or conditional medical release), violates supervision, and is reincarcerated for
675

Hankins v. State, 42 So. 3d 871 (Fla. 2d DCA 2010). Souza v. State, 889 So. 2d 952 (Fla. 5th DCA 2004). Campbell v. State, 29 So. 3d 1147 (Fla. 1st DCA 2010). See, Zook v. State, 883 So. 2d 332 (Fla. 2d DCA 2004). Minor v. State, 763 So. 2d 1169 (Fla. 4th DCA 2000). Desmoke v. State, 912 So. 2d 1284 (Fla. 2d DCA 2005).

676

677

678

679

680

118

the violation, the release date for purposes of the PRRPA is the date the inmate was placed on release supervision, and not the date the inmate was released after revocation of the release supervision.681 Where a defendants state prison sentence expires while he or she is temporarily residing in a hospital or county jail, the defendant is constructively in a state prison facility when his or her sentence expires for PRR purposes.682 Similarly, release from federal custody while housed in a county jail constitutes constructive release from a federal correctional facility for purposes of section 775.082(9)(a)1., Fla. Stat.683 The PRRPA makes no distinction between youthful offender commitments and adult commitments, and so release from a youthful offender commitment may serve as a predicate for an enhanced sentence under section 775.082(9). This means that a youthful offender who has been released from a Department of Corrections boot camp qualifies for enhanced sentencing as a prison releasee reoffender upon commission of any qualifying offense within three years of his or her release from boot camp.684 It is the fact of the defendants release from custody, not his or her status of being in custody, that is relevant to qualification as a PRR; the defendant cannot avoid the enhanced sentence for which he or she qualifies on the basis that had accumulated gain time been awarded to him or her, instead of only being credited to him or her, his or her release date would have been more than three years before the current offense.685 In the calculation of within 3 years from release from prison, a complete year expires, to the nanosecond, at the exact moment before its anniversary, never after. E.g., if a defendant is released from prison on September 1, 1999, and commits a qualifying offense on September 1, 2002, the new offense is not committed within three years. The last day on which the new offense which would otherwise qualify, could occur in this example would be on August 31, 2002. Note, however, that an argument can be made that the clock started ticking on the day after the defendant is released from prison, although there is no known authority for this.686 In determining whether an offense with which the State seeks to have the defendant qualified as under the PRRPA can be determined to be a felony that involves the use or threat of physical force or violence against an individual the statutory elements of the crime itself must include or

Gibson v. State, 944 So. 2d 426 (Fla. 4th DCA 2006) (release from temporary detention for violation of control release is not release for purposes of PRRPA); Wencel v. State, 915 So. 2d 1270 (Fla. 4th DCA 2005); Brinson v. State, 851 So. 2d 815 (Fla. 2d DCA 2003) (release from custody for alleged violation of terms of conditional release is not release for purposes of the PRR statute).
682

681

Louzon v. State, 78 So. 3d 678 (Fla. 5th DCA 2012). Taylor v. State, 114 So. 3d 355 (Fla. 4th DCA 2013). Tatum v. State, 922 So. 2d 1004 (Fla. 1st DCA 2006). Fitzpatrick v. State, 868 So. 2d 615 (Fla. 2d DCA 2004). See, Berube v. State, 873 So. 2d 635 (Fla. 2d DCA 2004).

683

684

685

686

119

encompass conduct of the type described. If such conduct is not a necessary element of the crime, then the crime is not a forcible felony within the meaning of section 776.08. If an offense may be committed without the use or threat of physical force or violence, then it is not a forcible felony. The circumstances of the actual offense are thus irrelevant to this analysis. For example, battery of a law enforcement officer (BOLEO) under section 743.01(1), Fla. Stat., and battery reclassified as a felony under section 784.03(2), Fla. Stat., because of a prior battery conviction, are not forcible felonies, no matter what the facts of the actual offense, because such batteries need not involve the use or threat of physical force or violence, but can be committed by merely touching or striking the victim,687 and so will not support classification as PRR or habitualization.688 Other offenses determined not to be within this category include solicitation by itself, even if the solicitation is for a violent crime,689 possession of a firearm by a convicted felon,690 fleeing or attempting to elude law enforcement,691 shooting into a dwelling,692 burglary with a battery,693 retaliating against a witness,694 and robbery by sudden snatching.695 The offense of shooting into an occupied vehicle necessarily includes the use of force or violence against an individual and qualifies the defendant for sentencing under the PRRPA under the forcible felony catch-all provision of the PRR statute because the elements of the offense require

State v. Hearns, 961 So. 2d 211 (Fla. 2007) (battery of a law enforcement officer is not a forcible felony for purposes of VCC enhancement); Acosta v. State, 982 So. 2d 87 (Fla. 3d DCA 2008) (the decision in State v. Hearns applies retroactively); Johns v. State, 971 So. 2d 271 (Fla. 1st DCA 2008) (defendants conviction for simple battery, reclassified as a felony because of defendants prior battery conviction, could never be a forcible felony); Spradlin v. State, 967 So. 2d 376 (Fla. 4th DCA 2007) (felony battery does not, of necessity, involve the requisite level of physical force or violence contemplated by the PRR catch-all provision); Walker v. State, 965 So. 2d 1281 (Fla. 2d DCA 2007) (the Hearns analysis of the VCC statute is equally applicable to the PRR statute because the critical language is the same in both instances). See, Johns v. State, 971 So. 2d 271 (Fla. 1st DCA 2008); Spradlin v. State, 967 So. 2d 376 (Fla. 4th DCA 2007).
689 688

687

Lopez v. State, 864 So. 2d 1151 (Fla. 2d DCA 2003) (solicitation to commit first-degree murder). Latson v. State, 882 So. 2d 1091 (Fla. 1st DCA 2004).

690

Thomas v. State, 933 So. 2d 45 (Fla. 4th DCA 2006), review granted, decision quashed, 969 So. 2d 353 (Fla. 2007).
692

691

Paul v. State, 958 So. 2d 1135 (Fla. 4th DCA 2007).

State v. Hackley, 95 So. 3d 92 (Fla. 2012); Shaw v. State, 26 So. 3d 51 (Fla. 5th DCA 2009); Tumblin v. State, 965 So. 2d 354 (Fla. 4th DCA 2007).
694

693

Donaldson v. State, 1 So. 3d 412 (Fla. 1st DCA 2009). Thomas v. State, 983 So. 2d 746 (Fla. 4th DCA 2008).

695

120

the vehicle to have been occupied.696 Burglary of a conveyance with an assault also qualifies for sentencing under the PRRPA, because it is a felony that necessarily involves the threat by word or act to do violence to the person of another.697 Felony battery under section 784.041 also qualifies for PRR sentencing because that crime requires great bodily harm, permanent disability, or permanent disfigurement and cannot be committed without the use or threat of physical force or violence.698 If the state attorney determines that a defendant is a PRR as defined in subparagraph 1. of the statute, the state attorney may seek to have the court sentence the defendant as a PRR. Unless the defendant admits that his or her crime occurred within three years of his or her release from prison, proof of the release date is an essential requirement for sentencing pursuant to the PRR Act.699 The State has the burden of proving by a preponderance of the evidence that the defendant qualifies as a PRR.700 Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a PRR as defined in the statute, such defendant is not eligible for sentencing under the sentencing guidelines which preceded the Criminal Punishment Code and must be sentenced as follows: a. For a felony punishable by life, by a term of imprisonment for life; b. For a felony of the first degree, by a term of imprisonment of 30 years; c. For a felony of the second degree, by a term of imprisonment of 15 years; and d. For a felony of the third degree, by a term of imprisonment of five years.

696

Paul v. State, 129 So. 3d 1058 (Fla. 2013). State v. Hackley, 95 So. 3d 92 (Fla. 2012).

697

State v. Williams, 9 So. 3d 658 (Fla. 4th DCA 2009); Brooks v. State, 93 So. 3d 402 (Fla. 2d DCA 2012), review denied, 104 So. 3d 1082 (Fla. 2012). Glover v. State, 871 So. 2d 1025 (Fla. 1st DCA 2004); see also, Sinclair v. State, 853 So. 2d 551, 552 (Fla. 1st DCA 2003) (holding competent proof of appellants release date from prison essential to the imposition of [a] PRR sentence). See, Glover v. State, 871 So. 2d 1025 (Fla. 1st DCA 2004); Sinclair v. State, 853 So. 2d 551 (Fla. 1st DCA 2003); Stabile v. State, 790 So. 2d 1235 (Fla. 5th DCA 2001), decision approved, 838 So. 2d 557 (Fla. 2003); cf. Boyd v. State, 776 So. 2d 317, 318 (Fla. 4th DCA 2001) ([T]he State must provide record evidence of the date the defendant was released from any prison term or supervision imposed for the last felony conviction.).
700 699

698

121

The phrase felony punishable by life provides for a mandatory life sentence for prison releasee reoffenders who commit either life felonies or first degree felonies punishable by life.701 The mandatory sentence for first-degree robbery with a firearm under the PRRPA is, for example, life in prison.702 In this regard, a conviction for capital sexual battery qualifies under the PRRPA as a felony punishable by life and subjects the defendant to mandatory life imprisonment.703 A person sentenced as a PRR can be released only by expiration of sentence, is not eligible for parole, control release, or any form of early release, and must serve 100% of the court-imposed sentence. There is nothing in the law to prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to section 775.084 or any other provision of law, including the Criminal Punishment Code. A defendant may, in fact, be sentenced pursuant to both the Criminal Punishment Code and PRRPA. The sentence provided by the PRRPA is not a mandatory sentence which must be imposed upon an eligible defendant. Rather it is a sentencing floor, which a judge may exceed if authorized by another provision of the law, such as the Criminal Punishment Code. If the Criminal Punishment Code sentence of a defendant exceeds the PRRPA floor, the defendant must serve the PRRPA portion of his or her sentence (for which the defendant is not eligible for gain time) first, and then remainder of his or her sentence pursuant to the Criminal Punishment Code (for which the defendant is eligible for gain time).704 Imposing a PRR sentence is mandatory once the State proves that the defendant qualifies and the sentencing court cannot offer a plea bargain for a guidelines sentence if the State is seeking a PRR sentence.705 There currently is conflict between the Fifth District and the First, Second, Third, and Fourth Districts on the issue of whether consecutive PRRPA sentences for offenses arising out of the same criminal episode are allowed. The Second District, in dicta, has stated that a defendant cannot be sentenced to consecutive prison releasee reoffender sentences arising from a single criminal episode.706 The First, Third and Fourth Districts have directly held that consecutive PRRPA sentences for offenses arising out of the same criminal episode are not allowed.707 The First, Second, Third, and Fourth Districts each ultimately reached the conclusion that PRRPA sentences could not be imposed consecutively when the offenses were part of the same criminal episode based upon Hale

701

Knight v. State, 808 So. 2d 210 (Fla. 2002). McDonald v. State, 957 So. 2d 605 (Fla. 2007). Jones v. State, 861 So. 2d 1261 (Fla. 4th DCA 2003). Nettles v. State, 850 So. 2d 487 (Fla. 2003). State v. Baker, 874 So. 2d 643 (Fla. 2d DCA 2004). Boyd v. State, 988 So. 2d 1242 (Fla. 2d DCA 2008).

702

703

704

705

706

See, Robinson v. State, 829 So. 2d 984 (Fla. 1st DCA 2002); Preston v. State, 2012 WL 1758985 (Fla. 1st DCA 2012); Gonzalez v. State, 876 So. 2d 658, 661662 (Fla. 3d DCA 2004); Philmore v. State, 760 So. 2d 239, 240 (Fla. 4th DCA 2000).

707

122

v. State708 and its progeny. The Fifth District, citing the opinion of the Florida Supreme Court in State v. Reeves709 that the PRRPA is a minimum mandatory statute and not an enhancement statute, and the necessary conclusion that the rule in Hale has no application to the PRRPA, coupled with the stated intent of the PRRPA to punish eligible offenders to the fullest extent of the law, has concluded that there is no reasonable interpretation of the PRRPA that would prohibit consecutive PRRPA sentences for offenses arising out of the same criminal episode.710 A PRRPA sentence followed consecutively by a Criminal Punishment Code (CPC) sentence not otherwise enhanced beyond the statutory maximum is a legal sentence even if the crimes arose from a single criminal episode.711 A mandatory minimum sentence imposed pursuant to section 775.087, the 10/20/Life statute, must be imposed concurrently with any PRRPA sentence for offenses arising out of the same criminal episode, even when the 10/20Life sentence is the lesser sentence.712 Minimum mandatory sentences for separate crimes, one under the PRRPA and the other under the 10-20-Life statute, can be imposed consecutively.713 Where consecutive sentences can be imposed, the PRRPA sentence must be served first.714 When the defendant qualifies for sentencing under the PRRPA, a trial court may not sentence a defendant to a habitualized sentence that is less than or equal to the PRRPA sentence.715 This is so even in cases where a true split sentence has been imposed. E.g., where a defendant is convicted of robbery and is sentenced to thirty years in prison as a habitual felony offender (HFO), suspended after 15 years, with the remainder to be served on probation, and the court also imposes a concurrent 15-year mandatory minimum sentence under the PRRPA, the HFO sentence does not exceed the PRR sentence and cannot stand on appeal.716 Because section 775.082(9)(c) only authorizes the court to deviate from the Acts sentencing scheme to impose a greater sentence of incarceration, a trial court is without authority to sentence a defendant to an equal sentence under the habitual felony offender statute, even where such sentence is imposed concurrently with the PRR sentence. Only
708

Hale v. State, 630 So. 2d 521 (Fla. 1993). Reeves v. State, 957 So. 2d 625, 633 (Fla. 2007). Young v. State, 37 So. 3d 389 (Fla. 5th DCA 2010). Reeves v. State, 957 So. 2d 625 (Fla. 2007). McDonald v. State, 957 So. 2d 605 (Fla. 2007). Mobley v. State, 983 So. 2d 630 (Fla. 5th DCA 2008). Powell v. State, 881 So. 2d 1180 (Fla. 5th DCA 2004); Dubose v. State, 834 So. 2d 423 (Fla. 2d DCA

709

710

711

712

713

714

2003). Grant v. State, 770 So. 2d 655 (Fla. 2000); see also, Dolansky v. State, 964 So. 2d 188 (Fla. 1st DCA 2007) (40-year term under the HFO statute is not greater than a life term under the PRR statute).
716 715

Johnson v. State, 927 So. 2d 251 (Fla. 2d DCA 2006).

123

where the separate habitual felony offender sentence is greater than the PRRPA sentence may it be imposed. As an example, because section 775.082(9)(c) only authorizes the court to deviate from the PRR sentencing scheme to impose a greater sentence of incarceration, the court is without authority to impose a life sentence under the habitual offender sentencing scheme concurrent with a life sentence imposed under the PRR sentencing scheme for the same offense.717 The imposition of an applicable longer concurrent term of imprisonment with a PRR mandatory minimum sentence does not, however, violate double jeopardy.718 Note, also, that the PRRPA does not preclude imposition of an HFO sentence and a PRR sentence on different offenses even if those sentences are imposed during the same sentencing hearing.719 When the defendant enters a plea to pursuant to the PRR sentencing scheme, a special plea colloquy is required, given after the standard colloquy of Fla. R. Crim. P. 3.172. An example of a PRR colloquy is at Figure 1. The PRR designation must be imposed at the time of sentencing and cannot be added after the defendant has begun serving his or her sentence.720 2.18. Habitual felony offender, habitual violent felony offender, three-time violent felony offender, and violent career criminal Section 775.084, Fla. Stat. is a progressive recidivist enhancement statute that establishes the four categories of habitual felony offender (HFO), habitual violent felony offender (HVFO), three-time violent felony offender, and violent career criminal (VCC). Each of these categories are predicated on the commission of specific qualifying offenses, release from prison, and prior felony convictions. The date of conviction or date of release on one of the prior convictions must be within five years of the date of the commission of the underlying offense and must not have been pardoned or set aside. In order to be counted as a prior felony for purposes of sentencing under section 775.084, 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.721 The determination of the existence of qualifying facts that form the predicate for sentencing as a HFO, HVFO, Three-Time VFO, or VCC is based on findings made by the sentencing

717

Morris v. State, 910 So. 2d 306 (Fla. 1st DCA 2005). See, Scott v. State, 842 So. 2d 1054 (Fla. 4th DCA 2003); Grant v. State, 770 So. 2d 655 (Fla. 2000).

718

Williams v. State, 870 So. 2d 166 (Fla. 2d DCA 2004); Bright v. State, 760 So. 2d 287 (Fla. 5th DCA 2000); Tolbert v. State, 827 So. 2d 278 (Fla. 2d DCA 2002).
720

719

See Anaya v. State, 70 So. 3d 703 (Fla. 4th DCA 2011).

See, 775.084(5), Fla. Stat. There was no sequential conviction requirement under the habitual offender statute, 775.084(1)(a)1, Fla. Stat., for the requisite two prior felony convictions until the legislature amended the statute to add a sequential conviction requirement, effective June 17, 1993. See, ch. 93406, sections 2 and 44 at 2915 and 2974, Laws of Florida; see also, Quintana v. State, 913 So. 2d 628 (Fla. 3d DCA 2005).

721

124

judge, and the decision in Blakely v. Washington722 does not require that such findings be made by a jury.723 Multiple convictions entered in a single sentencing count as one prior felony conviction, even if for unrelated crimes.724 If imposed before separate judges on the same day, however, each counts as a separate conviction.725 The predicate felonies also must have both occurred prior and have been convicted prior to the offense being enhanced.726 A conviction is not separate from an earlier conviction, and cannot be counted as a separate conviction under section 775.084 where the trial court convicted and sentenced the defendant nunc pro tunc to the date of the earlier conviction, which was when, but for a mistake, the conviction and sentencing should have been done.727 For purposes of section 775.084, the term conviction is equivalent to adjudication.728 To be counted as a prior felony the offense need only be adjudicated prior to sentencing of the enhanced offense, and need not be sentenced prior to sentencing for the enhanced offense. An example of this is occurrence is illustrated in Reed v. State,729 wherein the court explained: On January 25, 1991, [Royce M.] Reed entered a plea of guilty in case number 8936248A, and was adjudicated guilty. Because Reed was a juvenile at the time, the court placed him in a juvenile detention facility while awaiting sentencing. While there, Reed escaped and committed several other crimes for which he was convicted and sentenced as an habitual violent felony offender, case number 9113007. On April 8, 1991 Reed was sentenced in case number 8936248A, pursuant to his plea and adjudication of guilty. The sentence in case number 8936248A was eventually vacated and Reed was re-sentenced, nunc pro tunc to the original sentencing date of April 8, 1991. It is that conviction which was used to habitualize him in 9113007. Reed complains that this case could not be used to habitualize him because the conviction was not final while his sentencing remained pending, and that sentence
722

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, 6 A.L.R. Fed. 2d 619 (2004).

See, Luton v. State, 934 So. 2d 7 (Fla. 3d DCA 2006), decision clarified on denial of reh'g, (Aug. 9, 2006) (HVFO qualification does not have to be determined by a jury).
724

723

Bover v. State, 797 So. 2d 1246, 1250 (Fla. 2001). Price v. State, 721 So. 2d 360 (Fla. 5th DCA 1998).

725

See, Smith v. State, 742 So. 2d 352 (Fla. 5th DCA 1999); Carson v. State, 739 So. 2d 653 (Fla. 1st DCA 1999); Rhodes v. State, 704 So. 2d 1080 (Fla. 1st DCA 1997).
727

726

Shorter v. State, 891 So. 2d 1146 (Fla. 4th DCA 2005).

See, McCrae v. State, 395 So. 2d 1145, 115354 (Fla. 1980) (defendant was convicted within meaning of statute if he had entered guilty plea to qualifying felony, but had not yet been sentenced).
729

728

Reed v. State, 880 So. 2d 1269 (Fla. 3d DCA 2004).

125

was not imposed until April 1991, after the convictions in 9113007. . . . The record shows that Reed had already been adjudicated guilty in accordance with his plea in 8936248A when he escaped from custody and committed the crimes for which he was eventually habitualized. The adjudication in 8936248A was properly considered as a prior conviction for purposes of applying habitual offender sentencing in 9113007; both the offense and conviction occurred within five years prior to the offenses and convictions in 9113007.730 Nothing in the statute prevents a court from imposing a greater sentence of incarceration as authorized by law. A sentence imposed under this statute is not subject to the provisions of the CPC; however, if the court finds that it is not necessary for the protection of the public that a defendant's sentence be so enhanced, the defendant may be sentenced under any other applicable sentencing scheme. Note that section 775.084 does not authorize any fines.731 However, it is lawful for a court to impose both habitual offender sentencing and a mandatory fine for a drug trafficking offenses for offenses committed after September 30, 2000.732 The specific punishments authorized by section 775.084 are summarized in the following table:
733

Table 1. Summary of Punishments Authorized by Section 775.084 3rd Degree Felonies Habitual Felony Offenders Habitual Violent Felony Offenders Up to 10 years 2nd Degree Felonies Up to 30 years 1st Degree Felonies Life imprisonment Life imprisonment; not eligible for release for 15 years Life Felonies Life imprisonment Life imprisonment; not eligible for release for 15 years

Up to 10 years; not eligible for release for 5 years

Up to 30 years; not eligible for release for 10 years

730

Reed v. State, 880 So. 2d 1269, 127071 (Fla. 3d DCA 2004).

Willits v. State, 884 So. 2d 73 (Fla. 2d DCA 2004) (imposition of fine in addition to habitual offender sentence exceeds maximum sentence allowed by section 775.084 and must be reversed).
732

731

Baker v. State, 941 So. 2d 419 (Fla. 2d DCA 2006). Adapted from Clines v. State, 912 So. 2d 550 (Fla. 2005).

733

126

Three-Time Violent Offenders Violent Career Criminals

Mandatory minimum of 5 years Up to 15 years, with a mandatory minimum of 10 years

Mandatory minimum of 15 years Up to 40 years, with a mandatory minimum of 30 years

Mandatory minimum of 30 years Life imprisonment; no discretionary early release

Mandatory minimum of life imprisonment Life imprisonment; no discretionary early release

Section 775.084 does not limit enhanced HFO, HVFO, three time violent felony offender or VCC sentencing to only the primary offense and, as such, additional offenses that are not among those listed for a given enhancement category are also subject to the same enhancement as the primary offense qualifying for enhancement.734 A trial court cannot designate under multiple categories under section 775.084 for the same offense, even if the defendant meets the criteria of more than one category, but must elect one of these categories for sentencing.735 2.18.1. Probation and community control versus sentence Prior to 1999, a withhold of adjudication counted as a conviction for purposes of section 775.084 only if the new crime was committed while the defendant was on probation, and not while the defendant was on community control.736 The statute was subsequently amended on January 1, 1999, to include withholds of adjudication when the defendant is on community control and amended again on July 1, 1999, to include any sentence of probation or community control. Although section 775.084(2) now provides that 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, there was, however, conflict between the district courts on the question of whether a sentence, as referred in this section, includes the sanctions of probation and community control for purposes of making the requisite findings pursuant to the statute. The matter was resolved by the Florida Supreme Court on September 8, 2005, which held that a sentence, as referred to in section 775.084, includes the sanction of probation, relying on the plain meaning of

Hill v. State, 804 So. 2d 524 (Fla. 4th DCA 2002) (defendant subject to sentencing as VCC for conviction of burglary to a dwelling and two counts of dealing in stolen property, with a thirty-year minimum mandatory sentence for each, even though dealing in stolen property is not one of the listed qualifying offenses).
735

734

Clines v. State, 912 So. 2d 550 (Fla. 2005). See, Destra v. State, 672 So. 2d 822 (Fla. 3d DCA 1995)

736

127

the statute.737 Community control also qualifies as a sentence for purposes of the habitual offender statute.738 2.18.2. Determination hearing and presentence investigation Section 775.084 requires that the sentencing court conduct a separate proceeding for the determination if the defendant is a habitual felony offender, habitual violent felony offender, or three-time violent felony offender.739 Note, however, that the trial courts failure to conduct a hearing or make written or oral findings on the defendant's habitual felony offender status is not an appealable issue for the State.740 As a part of this proceeding the court is required to obtain and consider in such proceeding a presentence investigation prior to imposing sentence on a defendant as a habitual felony offender, habitual violent felony offender, or three-time violent felony offender.741 Unless waived, this presentence investigation is mandatory.742 There is no similar requirement for the imposition of sentence as a violent career criminal. 2.18.3. Required notice of intent to seek enhanced penalties Section 775.084 requires that the State serve written notice on the defendant of the States intention that the court determine the defendant to be a HFO, HVFO, three-time violent felony offender, or VCC a sufficient time prior to the entry of a written plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant.743 The State needs only file one notice in a given case, and does not have to file a new notice when the case is on remand from an appellate court.744

State v. Richardson, 915 So. 2d 86 (Fla. 2005), agreeing with the decision in McCall v. State, 862 So. 2d 807 (Fla. 2d DCA 2003). Roman v. State, 968 So. 2d 52 (Fla. 4th DCA 2007), citing State v. Richardson, 915 So. 2d 86 (Fla. 2005) (holding that probation is a qualifying sentence under the habitual offender statute).
739 738

737

775.084(3)(a) and (b), Fla. Stat.

State v. McMahon, 94 So. 3d 468 (Fla. 2012) (State is not authorized to appeal a sentence that is otherwise legal on the ground that the trial court improperly initiated a plea dialogue with a defendant without invitation of either party.); State v. Hewitt, 21 So. 3d 914 (Fla. 4th DCA 2009).
741

740

775.084(3)(a)1 and (b)1, Fla. Stat. Ortiz v. State, 9 So. 3d 774 (Fla. 4th DCA 2009) (defense counsel could waive PSI prior to imposition of

742

sentence).
743

775.084(3)(a)2, (b)2, and (c)1, Fla. Stat. Mackey v. State, 884 So. 2d 118 (Fla. 2d DCA 2004).

744

128

Note that timely notice is not required for a prison releasee reoffender sentence. The PRRPA, section 775.082(9), does not increase a defendants penalty beyond the statutory maximum; rather, it puts limits on the trial courts discretion. There is no requirement within the PRRPA that a defendant be given notice of the States intent to seek enhanced penalties as a prison releasee reoffender.745 Before a defendant can be properly sentenced as a HFO, HVFO, 3-Time Violent Felony Offender, or VCC, written notice has to be served on the defendant and the defendants 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.746 In order to impose a sentence as a HFO, HVFO, 3-Time Violent Felony Offender, or VCC following a plea, the trial court must confirm that the defendant is personally aware of the consequences of such a sentence when the plea is actually entered.747 It is permissible for the State to provide its notice to the defendant after the defendant signs the plea paperwork in connection with an open plea, but before sentencing, as the signing of paperwork does not bind the defendant, the State, or the court to entry and acceptance of the plea, and the conditions required to sentence the defendant to the enhanced penalties would have occurred before the court accepted the plea.748 The defendant may not receive a habitualized sentence when the notice is served after the defendants plea, even where the length of sentence is within the statutory maximum and is not affected by the filing.749 A statement made by the prosecutor to the trial judge in the presence of the defendant that the defendant could qualify for such a sentence does not constitute notice under the provisions of this law.750 While actual notice of intent to seek habitualization does not cure failure to file written notice of intent to seek habitualization where an open plea of guilty is entered, a written plea agreement acknowledging potential habitualization signed by the defendant cures a failure to file written notice.751 The notice to the defendant must inform him or her of the States

745

Akers v. State, 890 So. 2d 1257 (Fla. 5th DCA 2005). 775.084(3)(a)2., (b)2., and (c)1.

746

Ashley v. State, 614 So. 2d 486 (Fla. 1993); Pitts v. State, 805 So. 2d 1087 (Fla. 5th DCA 2002) (Pitts II); Pitts v. State, 766 So. 2d 1191 (Fla. 5th DCA 2000) (Pitts I).
748

747

Smith v. State, 126 So. 3d 397 (Fla. 4th DCA 2013). Baker v. State, 12 So. 3d 281 (Fla. 5th DCA 2009).

749

Akers v. State, 890 So. 2d 1257 (Fla. 5th DCA 2005) (filing a notice of intent to seek enhanced penalties as HFO shortly before sentencing hearing and actually serving defendant with notice at the hearing does not fulfill the notice requirement of section 775.084(3)(a)2. and is not harmless error).
751

750

Ashe v. State, 951 So. 2d 1023 (Fla. 1st DCA 2007).

129

intention to actually seek an enhanced sentence, and notice fails where it merely informs the defendant that he or she could be subject to enhanced sentencing.752 The State does not have to place the defendant on notice of the particular classification, and hence penalty, the defendant may be subject to on conviction: shotgun general notices encompassing all sentencing schemes under section 775.084 meet the requirements of notice in this regard. This is so because the notice of intent serves to provide the defendant with notice that his or her entire criminal record will be placed at issue and that he or she should prepare to refute any errors in that record (e.g., that he or she was not the person convicted, was not convicted of a certain offense, a certain conviction was vacated on appeal, and so on). When a shotgun notice informs a defendant that he or she is subject to all sentencing schemes under section 775.084, a defendant is given all the notice necessary to prepare for sentencing in his or her case. Note that a different situation would exist where, for example, the State issued a particularized notice of only the lowest enhancement of HFO and thereafter attempted to seek the highest enhancement of VCC, especially if different qualifying convictions are involved.753 If the state wholly fails to provide the defendant with a written notice of states intent to habitualize the defendant and the defendant is habitualized at sentencing, the only remedy in that situation is resentencing under the applicable Sentencing Guidelines or Criminal Punishment Code.754 2.18.4. Fact of prior conviction Before a trial court may impose an enhanced sentence based on recidivism, the State must also establish the fact of prior conviction by providing record evidence of the date of the current felony offense, the date of the conviction for the last prior felony, and the date the defendant was released from any prison term or supervision imposed for the last felony conviction.755 The State must present evidence of the prior convictions and cannot simply refer to evidence introduced at an earlier sentencing hearing.756 Charging informations, sentences, orders assessing fines and costs, affidavits of violation of probation, and the like are extraneous and irrelevant to proving the fact of a prior conviction, and their introduction by the State may be deemed unduly prejudicial.757 The trial court can rely upon certified copies of convictions and original court records in making the

752

Vann v. State, 970 So. 2d 878 (Fla. 2d DCA 2007).

Kepner v. State, 911 So. 2d 1256 (Fla. 4th DCA 2005); Anderson v. State, 901 So. 2d 213 (Fla. 4th DCA 2005); Washington v. State, 895 So. 2d 1141 (Fla. 4th DCA 2005).
754

753

Stanford v. State, 69 So. 3d 1039 (Fla. 1st DCA 2011). Boyd v. State, 776 So. 2d 317, 318 (Fla. 4th DCA 2001) (habitual offender). See, Rich v. State, 814 So. 2d 1207, 1208 (Fla. 4th DCA 2002). Johnson v. State, 42 So. 3d 899 (Fla. 2d DCA 2010).

755

756

757

130

determination.758 The State meets its burden as to out-of-state priors when it provides a copy of the out-of-state judgment(s) with the defendants name and social security number. To constitute a qualifying or predicate offense under section 775.084, the out-of-state conviction must be substantially similar in elements and penalties to an offense in this state and must be punishable by death or imprisonment over one year.759 The burden then shifts to the defendant to show mistaken identity.760 For purposes of section 775.084, the term conviction is equivalent to adjudication.761 Not all prior convictions can be used for recidivist enhancement, however. Absent waiver of counsel on the record at the time of the prior conviction or a stipulation from the defense at the time of enhancement, the State may not use uncounselled prior convictions for enhancement purposes. Presuming waiver of counsel from silent record is impermissible.762 This issue arises most commonly when the State seeks to enhance misdemeanor crimes such as driving under the influence, driving while license suspended or revoked, and petit theft to felonies. The defendant bears the initial burden of showing entitlement to counsel because the key is that an uncounselled conviction may not be used for enhancement if the defendant in fact had a right to counsel in the prior proceedings.763 In order to meet this initial burden, the defendant must assert under oath: (1) that the offense involved was punishable by more than six months of imprisonment or that the defendant was actually subjected to a term of imprisonment; (2) that the defendant was indigent and, thus, entitled to court-appointed counsel; (3) counsel was not appointed; and (4) the right to counsel was not waived. If the defendant sets forth these facts under oath, then the burden shifts to the State to show either that counsel was provided or that the right to counsel was validly waived. A defendants statement under oath that he or she was neither provided nor offered counsel at the

758

Slade v. State, 898 So. 2d 120 (Fla. 4th DCA 2005).

775.084(1)(e), Fla. Stat.; see, Clarke v. State, 941 So. 2d 593 (Fla. 4th DCA 2006) (Bahamian crimes); Alix v. State, 799 So. 2d 359 (Fla. 3d DCA 2001) (The Canadian crime of sexual assault is broader than Florida's offense of sexual battery because the Canadian offense encompasses less serious conduct that is not punishable under Floridas sexual battery statute and therefore cannot be used as a predicate to sentence a defendant as a habitual violent felony offender).
760

759

Guion v. State, 753 So. 2d 628 (Fla. 5th DCA 2000).

See, McCrae v. State, 395 So. 2d 1145 (Fla. 1980) (a defendant was convicted within the meaning of the statute if he had entered a guilty plea to a qualifying felony, but had not yet been sentenced); cf. Benton v. State, 829 So. 2d 388 (Fla. 3d DCA 2002) (adjudication withheld and probation caused defendant to be further removed from the adjudication of guilt required for treatment as a habitual felony offender); Schneider v. State, 788 So. 2d 1073, 1074 (Fla. 2d DCA 2001) (habitual violent offender sentence was proper where the defendant was on community control in a prior case when he committed the instant offenses because he had been adjudicated guilty in the prior case).
762

761

Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967). Leffew v. State, 518 So. 2d 1376, 1378 (Fla. 2d DCA 1988).

763

131

proceedings resulting in prior convictions is not sufficient to put the State to the burden of proving that such convictions were in fact counseled or that counsel was knowingly waived.764 An uncounseled prior conviction, in which the defendant could have been incarcerated for more than six months, but was not incarcerated for any period, can be used to enhance a current charge from a misdemeanor to a felony. The State may not, however, use an uncounseled conviction to increase a defendants loss of liberty in the absence of a valid waiver of counsel. The loss of liberty is a penalty different in kind and severity from other penalties, such as fines and conditions of supervision. When, for example, the State prosecutes a repeat DUI offender, it may constitutionally seek applicable enhanced penalties and fines short of incarceration based upon prior uncounseled misdemeanor DUI offenses. The State may not use any of a defendants prior misdemeanor offenses to enhance his or her current offense unless it proves that the defendant was either represented by counsel or validly waived that right during those prior proceedings. In other words, any enhanced loss of liberty may only be based on the counseled offense(s) and the offense(s) for which the defendant validly waived his or her right to counsel. However, during its prosecution, the State may use each of the defendants prior uncounseled misdemeanor offenses to seek any enhanced penalties and fines short of incarceration that apply to the offense being prosecuted.765 In recidivist enhancement cases, before a prior conviction may be relied upon to enhance the punishment in a subsequent case, the conviction must be final. The date of sentencing for the offense for which a habitualized sentence is sought is the relevant time for determining the finality of any predicate conviction. A conviction for which the time for appeal has not run at the time of the commission of the qualifying offense can serve as a predicate offense if an appeal is not pending at the time of the commission of the qualifying offense.766 A conviction that is not final, because it is on appeal, cannot be relied upon for habitualization.767 If the defendant files an appeal from the judgment of guilty, finality occurs when an appellate court affirms the lower courts judgment.768 A previous felony conviction which was pending on direct appeal is not a predicate conviction for enhancement, even if ultimately affirmed, because it was not final at the time of sentencing. Upon resentencing, the court can use only convictions which were final at the time of the original sentencing.769 Note that this rule is different than the rule that permits the scoring on guidelines and Criminal Punishment Code scoresheets of convictions that are under appeal.

764

State v. Rock, 605 So. 2d 456 (Fla. 1992); see also, State v. Beach, 592 So. 2d 237 (Fla. 1992). State v. Kelly, 999 So. 2d 1029 (Fla. 2008). Kiley v. State, 936 So. 2d 674 (Fla. 4th DCA 2006). See, Martin v. State, 592 So. 2d 1219 (Fla. 1st DCA 1992). State v. Peterson, 667 So. 2d 199 (Fla. 1996) (habitual offender). Breeze v. State, 641 So. 2d 450 (Fla. 1st DCA 1994); Delguidice v. State, 554 So. 2d 35 (Fla. 4th DCA

765

766

767

768

769

1990).

132

Absent specific statutory authorization, a prior juvenile withhold of adjudication of delinquency, or an adjudication of delinquency, may not be used as a conviction to reclassify a misdemeanor to a felony, even in juvenile court.770 A defendant also retains his or her right against compelled self-incrimination and cannot be required to testify as to prior convictions where such could subject him or her to greater punishment, as to confirm prior convictions during recidivist sentencing proceedings.771 2.18.5. Habitual felony offender A habitual felony offender (HFO) means a defendant for whom the court may impose an extended term of imprisonment, as provided in section 775.084(4)(a), Fla. Stat., 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 five years of the date of the conviction of the defendant's last prior felony or other qualified offense, or within five years of the defendants 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 section 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.

770

See, J.R.H. v. State, 932 So. 2d 430 (Fla. 4th DCA 2006). Meehan v. State, 397 So. 2d 1214 (Fla. 2d DCA 1981) (habitual offender sentencing).

771

133

Upon making a finding that a defendant is a habitual felony offender, the court may sentence the defendant 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. The court must impose a HFO sentence upon a finding that the defendant qualifies as such unless the court finds that such a sentence is not necessary for the protection of the public and places its reasons for doing so on the record in writing.772 Note, however, that it can happen that a court finds that the defendant qualifies as a habitual offender but through inadvertence or oversight does not impose a HFO sentence. Hale773 does not apply in such a situation, and the sentence imposed will be upheld as lawful if it does not exceed the statutory maximum for a sentence that could have been imposed without enhancement in that case.774 A habitualized offense cannot be used as a primary offense on a scoresheet.775 Habitualized offenses may not be used as additional offenses.776 Sentences for habitualized offenses arising from a single incident must be concurrent.777 If a defendant is charged with two or more offenses arising from the same criminal episode, and the State seeks to have the defendant sentenced as a habitual felony offender, there are three sentencing possibilities: (1) If the trial court adjudicates the defendant a habitual felony offender as to all the charges, it may enhance the sentences as provided by section 775.084(4)(a), but the sentences must run concurrently.778 (2) If the trial court adjudicates the defendant a habitual felony offender as to one charge, but not the other, then the sentences may be imposed consecutively as long as the total punishment does not exceed the statutory maximum enhanced under the habitual felony

775.084(3)(a)6, Fla. Stat.; Fitzpatrick v. State, 884 So. 2d 981 (Fla. 1st DCA 2004); ONeal v. State, 862 So. 2d 91 (Fla. 2d DCA 2003).
773

772

Hale v. State, 630 So. 2d 521 (Fla. 1993). Elliott v. State, 9 So. 3d 660 (Fla. 5th DCA 2009).

774

Johnson v. State, 824 So. 2d 1012 (Fla. 5th DCA 2002); Cook v. State, 803 So. 2d 867 (Fla. 4th DCA 2002); Brown v. State, 760 So. 2d 1113 (Fla. 4th DCA 2000).
776

775

Smith v. State, 632 So. 2d 95 (Fla. 2d DCA 1994); Ricardo v. State, 608 So. 2d 93 (Fla. 2d DCA 1992). Howard v. State, 852 So. 2d 901 (Fla. 2d DCA 2003); Hale v. State, 630 So. 2d 521 (Fla. 1993). Hale v. State, 630 So. 2d 521 (Fla. 1993).

777

778

134

offender statute.779 Finally, the trial court can adjudicate a defendant a habitual felony offender, but sentence him without regard to section 775.084, if it sets forth written reasons why it is not necessary for the protection of the public.780 The trial court can then sentence the defendant separately on each charge, imposing them concurrently or consecutively as it sees fit.781 There is no bright line for determining whether a criminal episode is single for purposes of evaluating consecutive enhancement sentences.782 Whether the two or more offenses were committed during a single criminal episode is a question of fact.783 In resolving this question of fact, the courts generally consider factors such as the nature, time, place and number of victims.784 Once the habitual offender sentencing scheme is utilized to enhance a sentence beyond the statutory maximum on one or more counts arising from a single criminal episode, consecutive sentencing may not be used to further lengthen the overall sentence.785 This means, for example, that a court cannot sentence a defendant convicted of both sale of cocaine and possession of the same cocaine to a habitualized sentence on the sale of cocaine that exceeds the statutory maximum on that count and then further lengthen that defendants overall sentence by running the sentence for the possession of cocaine consecutively to the habitualized sentence.786 Where the combined sentences do not exceed the statutory maximum, it may be possible to impose consecutive sentences.787 Where multiple counts involve a single victim but charge separate criminal episodes, consecutive sentences may be imposed.788 It is permissible to sentence one defendant as both a habitual offender and as a PRR on separate counts and on the same count as long as the sentences are concurrent and the
779

Fuller v. State, 867 So. 2d 469, 470 (Fla. 5th DCA 2004); Kiedrowski v. State, 876 So. 2d 692, 694 (Fla. 1st DCA 2004).
780

775.084(4)(e), Fla. Stat. 775.021(4)(a), Fla. Stat.; see, Elliott v. State, 9 So. 3d 660 (Fla. 5th DCA 2009). Wilcher v. State, 787 So. 2d 150, 152 (Fla. 4th DCA 2001). Williams v. State, 804 So. 2d 572, 574 (Fla. 5th DCA 2002).

781

782

783

Wilcher v. State, 787 So. 2d 150, 151 (Fla. 4th DCA 2001) (quoting Smith v. State, 650 So. 2d 689, 691 (Fla. 3d DCA 1995)).
785

784

Kiedrowski v. State, 876 So. 2d 692 (Fla. 1st DCA 2004); Fuller v. State, 867 So. 2d 469 (Fla. 5th DCA

2004). See, Mills v. State, 949 So. 2d 1186 (Fla. 1st DCA 2007); Dawson v. State, 951 So. 2d 931 (Fla. 4th DCA 2007); Fuller v. State, 867 So. 2d 469 (Fla. 5th DCA 2004). See, Davis v. State, 710 So. 2d 1051 (Fla. 1st DCA 1998) (where defendant was found to be a habitual offender only as to one count, consecutive probation term on count two was not erroneous although the offense arose from a single episode).
788 787 786

Trotter v. State, 744 So. 2d 583 (Fla. 2d DCA 1999).

135

incarceration for the habitual offender sentence is greater than the incarceration for the PRR sentence, but it is not permissible to sentence a defendant to consecutive sentences when the sentences have already been enhanced under the habitual offender or PRR provisions and the offenses arose from the same criminal episode.789 Probation cannot be used to make a habitualized sentence greater than a PRR sentence, as when a court imposes a 15-year PRR sentence and a 15-year HFO sentence followed by 10 years of probation added to the HFO sentence.790 The rule against consecutive habitualized sentencing that exceeds the statutory maximum does not apply to accompanying misdemeanor offenses. Where, for example, a defendant is sentenced to consecutive habitualized sentences of incarceration, the total of which does not exceed the statutory maximum sentence the defendant could have received had the sentencing court enhanced none of the defendants sentences and had run them all consecutively, the sentencing court can impose consecutive sentences of incarceration for accompanying misdemeanors even if the combined total exceeds the statutory maximum of the accompanying felony offenses when combined with the sentencing of those felonies. This is because misdemeanors cannot be enhanced under the habitual offender statute and have no effect on the statutory maximum sentence faced by the defendant for accompanying felony offenses.791 There is conflict between the First and Fifth Districts as to whether or not consecutive sentencing is permitted otherwise.792 Note that where the trial court imposes a habitual offender sentence that is more lenient than the sentence required by the former guidelines of the Criminal Punishment Code, the court must state its reasons for the downward departure on the record.793 Where a trial court finds that a defendant qualifies an a habitual felon, it is not necessary for the trial court to specifically state that it is imposing a habitual offender sentence; the trial court must make specific written or oral findings if it is not going to impose a habitual offender sentence.794

789

Hunsicker v. State, 881 So. 2d 1166 (Fla. 5th DCA 2004). Michel v. State, 935 So. 2d 1228 (Fla. 5th DCA 2006). Hamilton v. State, 996 So. 2d 964 (Fla. 1st DCA 2008).

790

791

Davis v. State, 710 So. 2d 1051 (Fla. 1st DCA 1998) (where defendant was found to be a habitual offender only as to count one, consecutive probation term on count two was not erroneous although the offenses arose from a single episode); Fuller v. State, 867 So. 2d 469 (Fla. 5th DCA 2004) (once the habitual offender sentencing scheme is utilized to enhance a sentence beyond the statutory maximum on one or more counts arising from a single criminal episode, consecutive sentencing may not be used to further lengthen the overall sentence).
793

792

See, Welling v. State, 748 So. 2d 314 (Fla. 4th DCA 1999).

775.084(3)(a)(6), Fla. Stat.; Scanes v. State, 876 So. 2d 1238 (Fla. 4th DCA 2004); ONeal v. State, 862 So. 2d 91 (Fla. 2d DCA 2003) (A sentencing judge is not required to use the magic words, habitual felony offender sentence, in order to effectuate a legal sentence where it is obvious that the trial court intended to and did impose an habitual felony offender sentence); Yates v. State, 823 So. 2d 273, 274 (Fla. 5th DCA 2002).

794

136

Note that juvenile adjudications cannot be used as predicate convictions for purposes of sentencing a defendant as a habitual offender.795 If a trial judge chooses to impose a sentence other than that required by section 775.084, Fla. Stat., the judge must still adhere to the applicable sentencing guidelines or Criminal Punishment Code sentencing range and state appropriate reasons for any downward departure.796 Hybrid split sentences of incarceration without habitual offender status followed by probation as an habitual offender are not authorized by section 775.084 and are in fact inconsistent with the plain language of the statute.797 Note that, to effectuate a habitual felony offender sentence upon revocation of probation, a trial court must orally pronounce habitual offender status, even when the defendant was initially sentenced as a habitual felony offender for the substantive offense and the designation has not been set aside. Otherwise, the limit of the defendants sentence is prescribed by the statutory maximum.798 Where a defendant was not declared to be an habitual offender at the initial sentencing, the defendant cannot be sentenced an a habitual offender upon revocation unless the defendant agrees to such in a valid negotiated plea.799 When the defendant enters a plea to an offense pursuant to the Habitual Felony Offender (HFO) sentencing scheme, a special plea colloquy is required, given after the standard colloquy of Fla. R. Crim. P. 3.172. An example of a HFO colloquy is at Figure 2. The trial court must confirm that the defendant is personally aware of that possibility and of the reasonable consequences of habitualization. Knowledge that habitualization may affect the possibility of early release through certain programs is considered a direct consequence or one that has a definite, immediate, and largely automatic effect on the range of a defendant's punishment. As it is such, during the plea colloquy the trial court should discuss with the defendant his or her eligibility for habitualization, as well as the maximum habitual offender term for the charged offense, the fact that habitualization may affect the possibility of early release through certain programs, and where habitual violent felony offender provisions are implicated, the mandatory minimum term.800

Vonador v. State, 857 So. 2d 323 (Fla. 2d DCA 2003); Shook v. State, 603 So. 2d 617 (Fla. 1st DCA 1992); Gahley v. State, 605 So. 2d 1309 (Fla. 1st DCA 1992
796

795

State v. Perez, 802 So. 2d 1167 (Fla. 3d DCA 2001); State v. Stanton, 781 So. 2d 1129 (Fla. 3d DCA

2001). See, King v. State, 681 So. 2d 1136 (Fla. 1996) (guidelines sentence cannot be upgraded to habitual offender sentencing at revocation proceeding unless defendant agrees at original sentencing).
798 797

White v. State, 892 So. 2d 541 (Fla. 1st DCA 2005). Lockhart v. State, 980 So. 2d 613 (Fla. 4th DCA 2008). Murphy v. State, 952 So. 2d 1214 (Fla. 5th DCA 2007).

799

800

137

On occasion, a defendant is given a habitualized sentence in error, when the defendant does not qualify for habitualization. For a resentencing after an erroneous habitualization, the trial court may restructure the sentence so as to achieve, but not exceed, the original sentencing intent. This means that where, for example, the defendant is sentenced on multiple offenses to a total term of forty years, the defendant can be resentenced under the Criminal Punishment Code (or the applicable guidelines if the offenses were committed before October 1, 1998) in such a way that the combination of sentences, run either consecutively or concurrently, equals but does not exceed 40 years, consistent with the court's original sentencing intent.801 When, however, a criminal sentence is reversed on appeal because of insufficient evidence of the defendants habitual offender status, the State may present new evidence on that issue at resentencing. This is because resentencing is a de novo proceeding, in which the sentencer is to consider all relevant evidence regarding the nature of the crime and the character of the defendant to determine appropriate punishment.802 2.18.6. Habitual violent felony offender Another enhancement category in section 775.084, Fla. Stat., is that of habitual violent felony offender (HVFO). "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: arson; sexual battery; robbery; 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; or 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 five years of the date of the conviction of the last prior enumerated felony, or within five years of the defendants 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.

801

Suarez v. State, 974 So. 2d 451 (Fla. 3d DCA 2008). State v. Collins, 985 So. 2d 985 (Fla. 2008).

802

138

3. The defendant has not received a pardon on the ground of innocence for any crime that is necessary for the operation of the habitual violent felony offender portion of section 775.084. 4. A conviction of a crime necessary to the operation of this paragraph of the statute has not been set aside in any postconviction proceeding. Upon making the requisite finding, the court 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 five years. A defendant needs only one qualifying prior conviction in order to be sentenced as a HVFO. Since only one qualifying felony is needed for a HVFO adjudication, it does not matter if the qualifying felony was sentenced together with, or separate from, other qualifying felonies.804 The court must impose a HVFO sentence upon a finding that the defendant qualifies as such unless the court finds that such a sentence is not necessary for the protection of the public and places its reasons for doing so on the record in writing.805
803

When the defendant enters a plea to an offense pursuant to the Habitual Violent Felony Offender (HVFO) sentencing scheme, a special plea colloquy is required, given after the standard colloquy of Fla. R. Crim. P. 3.172. An example of a HVFO colloquy is at Figure 3. 2.18.7. Three-time violent felony offender Another progressive enhancement category of section 775.084, Fla. Stat., is that of the three-time violent felony offender. Three-time violent felony offender means a defendant for whom the court must impose a mandatory minimum term of imprisonment, as provided in section 775.084(4)(c), if it finds that:

803

Hall v. State, 821 So. 2d 1154 (Fla. 2d DCA 2002). Williams v. State, 898 So. 2d 966 (Fla. 3d DCA 2005).

804

775.084(3)(a)6, Fla. Stat.; Fitzpatrick v. State, 884 So. 2d 981 (Fla. 1st DCA 2004); ONeal v. State, 862 So. 2d 91, 93 (Fla. 2d DCA 2003).

805

139

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: arson; sexual battery; robbery; 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; or 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 of the felony offenses so enumerated, 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 so enumerated 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 so enumerated; or b. Within five years after the date of the conviction of the last prior offense so enumerated, or within five 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 so enumerated, 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. Upon making the requisite finding, the court 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 five years. To date, there has been no challenge in the courts on the issue of a judges discretion in sentencing a three time violent felony offender, but the statute appears to make it mandatory upon a finding that the defendant qualifies as such. Section 775.084(4)(e) specifically sets forth the

140

portions of the statute where the court has discretion in imposing an enhanced sentence, and does not grant discretion as to three time violent felony offenders. 2.18.8. Violent career criminal The fourth enhancement category of section 775.084, Fla. Stat., is that of the violent career criminal (VCC). Violent career criminal means a defendant for whom the court must impose imprisonment pursuant to subparagraph (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: any forcible felony, as described in section 776.08; aggravated stalking, as described in section 784.048(3) and (4); aggravated child abuse, as described in section 827.03(2); aggravated abuse of an elderly person or disabled adult, as described in section 825.102(2); lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct, or lewd or lascivious exhibition, as described in section 800.04 or section 847.0135(5); escape, as described in section 944.40; or 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 so enumerated and was committed on or after May 24, 1997,806 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 five years after the conviction of the last prior enumerated felony, or within five years after the defendants 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.

The violent career criminal statute became effective on October 1, 1995 but, pursuant to Heggs v. State, 759 So. 2d 620 (Fla. 2000) and State v. Thompson, 750 So. 2d 643 (Fla. 1999), it is valid only on or after May 24, 1997.

806

141

The law provides that, upon making the requisite finding, the court 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. Forcible felony means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.807 This definition includes all enumerated felonies, plus any additional felony which involves the use or threat of physical force or violence against an individual, and does not require the use or threat of physical force or violence against an individual in the circumstances of the enumerated felonies.808 The phrase involves the use or threat of physical force or violence against any individual is not a limitation on all of the crimes previously listed in the forcible felony statute.809 Simple burglary is a qualifying forcible felony offense under the statute.810 Burglary of an unoccupied conveyance is also a forcible felony and a qualifying offense under section 775.084(1)(d), Fla. Stat.811 In fact, conviction for any burglary may qualify as a predicate offense.812 Battery of a law enforcement officer is not one of the forcible felonies enumerated in section 776.08, Fla. Stat., and does not amount to the use or threat of use of physical force or violence as provided

807

776.08, Fla. Stat.

Rodriguez v. State, 826 So. 2d 464 (Fla. 3d DCA 2002), adhered to on denial of rehg, 837 So. 2d 1177 (Fla. 3d DCA 2003). Ubilla v. State, 8 So. 3d 1200 (Fla. 3d DCA 2009); Rodriguez v. State, 826 So. 2d 464 (Fla. 3d DCA 2002), adhered to on denial of rehg, 837 So. 2d 1177 (Fla. 3d DCA 2003). Rodriguez v. State, 826 So. 2d 464, 465 (Fla. 3d DCA 2002), adhered to on denial of rehg, 837 So. 2d 1177 (Fla. 3d DCA 2003).
811 810 809

808

Bynes v. State, 854 So. 2d 289 (Fla. 4th DCA 2003). Cala v. State, 854 So. 2d 840 (Fla. 3d DCA 2003).

812

142

by that section.813 Robbery by sudden snatching does not qualify as an enumerated felony under section 775.084(1)(d)3.b. because: (1) it is not any of those crimes identified in section 775.084(1)(d)1.b.-g.; (2) it is not expressly identified as a forcible felony under section 776.08; (3) it cannot be considered as an implied forcible felony under section 776.08 because, if the legislature intended to include all forms of robbery under that statute, then it would have been unnecessary for the legislature to have particularly listed home-invasion robbery and robbery under section 776.08;814 and (4) robbery by sudden snatching does not qualify as a felony which involves the use or threat of physical force or violence against any individual under section 776.08.815 Similarly, throwing a deadly missile is not one of the listed offenses and does not necessarily involve physical force or violence against an individual and so cannot serve as a qualifying offense for imposition of a violent career criminal sentence.816 A conviction for an attempt or a conspiracy to commit one of the listed offenses also does not meet the requirements to be a qualifying or predicate offense for violent career criminal enhancement.817 Attempts and conspiracies are not forcible felonies expressly listed in section 776.08, and they do not fall within section 776.08's other felony which involves the use or threat of physical force or violence against any individual language.818 The court must impose a violent career criminal sentence upon a finding that the defendant qualifies as such unless the court finds that such a sentence is not necessary for the protection of the public and places its reasons for doing so on the record in writing.819 Note that a defendant sentenced as a VCC is not eligible for any form of discretionary early release, other than pardon or executive clemency, or conditional release granted pursuant to section

State v. Hearns, 961 So. 2d 211 (Fla. 2007) (battery of a law enforcement officer is not a forcible felony for purposes of VCC enhancement); see also, Johnson v. State, 858 So. 2d 1071 (Fla. 3d DCA 2003) (spitting on law enforcement officer does not amount to use or threat of use of physical force or violence and cannot serve as qualifying offense for habitualization). Cf. Gorham v. State, 988 So. 2d 152, 154 (Fla. 4th DCA 2008) (If the legislature intended to include all burglaries for PRR sentencing, then it would have been unnecessary to state any particular form of burglary.). Thomas v. State, 983 So. 2d 746, 747 (Fla. 4th DCA 2008), citing State v. Hearns, 961 So. 2d 211, 212 (Fla. 2007).
816 815 814

813

Hudson v. State, 800 So. 2d 627 (Fla. 3d DCA 2001), on rehg in part, (Nov. 21, 2001).

Campbell v. State, 935 So. 2d 614 (Fla. 3d DCA 2006); Landreth v. State, 739 So. 2d 1198 (Fla. 2d DCA 1999); see also, Walters v. State, 790 So. 2d 483 (Fla. 5th DCA 2001) (prior attempted robbery is not one of the listed offenses and cannot be used to qualify defendant as violent career criminal).
818

817

Campbell v. State, 935 So. 2d 614 (Fla. 3d DCA 2006).

775.084(3)(c)5 and (4)(e), Fla. Stat.; see, Harris v. State, 849 So. 2d 449 (Fla. 3d DCA 2003); Simboli v. State, 728 So. 2d 792 (Fla. 5th DCA 1999).

819

143

947.149, Fla. Stat., and a defendant sentenced for an offense committed on or after July 1, 1999, as a three-time violent felony offender can be released only by expiration of sentence and is not eligible for parole, control release, or any form of early release. When the defendant enters a plea to an offense pursuant to the Violent career Criminal (VCC) sentencing scheme, a special plea colloquy is required, given after the standard colloquy of Fla. R. Crim. P. 3.172. An example of a VCC colloquy is at Figure 4. 2.18.9. Scoresheet preparation where PRR, VCC, HFO, HVFO and 3-Time VCC designations apply One of the greatest areas of confusion in scoresheet preparation is where the enhanced sentencing designations of Prison Releasee Reoffender (PRR), Violent Career Criminal (VCC), Habitual Felony Offender (HFO), Habitual Violent Felony Offender (HVFO), and 3-time VFO (the Three Strikes law) apply. In VCC, HFO, and HVFO cases, a scoresheet is still prepared because the court needs to determine the thresholds for sentencing. In the cases of PRR and 3-time VFO, the prosecutor still needs to prepare a scoresheet, even though there are mandatory minimums. In all such cases, the non-enhanceable offenses are scored separately from the enhanceable offenses to determine the sentencing floor, and a scoresheet listing only those offenses sentenced under the Criminal Punishment Code must be filed in addition to any sentencing documents filed under section 775.082(9) or section 775.084.820 As a matter of common practice, the non-enhanceables are usually sentenced concurrently to the enhanced offenses. The logic of this practice is that it prevents an enhanceable offense from bootstrapping a nonenhanceable offense beyond the statutory maximum for that offense. For example, if a defendant gets an enhanced sentence of thirty years for Robbery, suspended after fifteen years with fifteen years probation to follow, and after leaving prison violates probation with a third-degree level felony Level 3 charge of Possession of Cocaine, the Robbery VOP is put on a separate scoresheet, which includes the defendants prior record; the Possession of Cocaine charge goes on another scoresheet, with the Robbery charge scored as a prior conviction, and is used to determine the bottom of the range of sentencing the judge can impose on the defendant. The situation is further complicated where the defendant in this scenario commits a non-CPC offense (i.e., first-degree murder and capital sexual battery, which are not ranked at any offense level), an enhanceable offense, and a non-enhanceable offense. Although enhanceable offenses as described cannot be scored as either the primary offense, or as an additional offense at conviction, because enhancement removes these offenses from sentencing under the Criminal Punishment Code or the earlier guidelines, such offenses can be

820

See, Fla. R. Crim. P. 3.704(d)(1), 3.703(d)(1), 3.702(d)(1).

144

subsequently used as prior record when scoring an offense committed subsequently to the enhanceable offense(s).821 2.19. 10/20/Life Section 775.087, Fla. Stat., the 10/20/Life law, is a reclassification statute that also contains progressive minimum mandatory sentencing provisions that are geared to the specific offense committed and whether the defendant possessed or discharged a firearm and caused death or serious bodily injury. The provisions of this law are as follows: Pursuant to section 775.087(1), Fla. Stat., unless otherwise provided by law, whenever a defendant is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged is reclassified. A felony of the first degree is reclassified to a life felony; a felony of the second degree, to a felony of the first degree; and a felony of the third degree, to a felony of the second degree. For purposes of sentencing under chapter 921, a felony offense which is so reclassified is ranked one level above the ranking under section 921.0022 or section 921.0023 of the felony offense committed.822 Note that one of the effects of Heggs v. State,823 is that the one-level increases for use of a firearm are not applicable to a defendant who committed the charged offense within the window period of October 1, 1995, and May 24, 1997.824 Section 775.087(1) precludes reclassification if the crime charged requires the use of a weapon as one of its essential elements.825 As an example, although aggravated battery causing great bodily harm can be enhanced pursuant to section 775.087(1) because the use of a weapon is not necessary to cause great bodily harm, the crime of aggravated battery with the use of a deadly weapon is not subject to reclassification because the use of a weapon is an essential element of the crime.826 Stated otherwise, aggravated battery can be committed in alternative ways, such as by causing great bodily harm or by using a deadly weapon.827 As indicated in section 775.087(1), Fla. Stat., a degree classification pertains when the offense is committed with the use of a weapon, unless
821

Ricardo v. State, 608 So. 2d 93 (Fla. 2d DCA 1992). 775.087(1), Fla. Stat. Heggs v. State, 759 So. 2d 620 (Fla. 2000). Reid v. State, 799 So. 2d 394 (Fla. 4th DCA 2001). See, Lareau v. State, 573 So. 2d 813 (Fla. 1991); Cargle v. State, 829 So. 2d 366 (Fla. 1st DCA 2002). Davis v. State, 884 So. 2d 1058 (Fla. 2d DCA 2004). 784.045(1), Fla. Stat.

822

823

824

825

826

827

145

the use of the weapon is an essential element of the crime. Where the jury finds great bodily harm and the use of a deadly weapon and it cannot be determined whether the conviction is based on one or the other, reclassification is precluded.828 Where, however, the jury finds both great bodily harm and the use of a deadly weapon but it is clear that the aggravated battery is independently established by the great bodily harm and the use of a deadly weapon is not an essential element of the aggravated battery, the use of the weapon is an additional factor which permits reclassification under section 775.087(1), Fla. Stat.829 Another example is where the defendant is convicted under section 790.19, Fla. Stat., of shooting a deadly missile for shooting a firearm into a house.830 Similarly, the offense of attempted armed robbery, which is a second-degree felony, cannot be punished as a first-degree felony under section 775.087, Fla. Stat., because the use of a weapon is an essential element of the offense.831 Use of a weapon does not, however, become an essential element of the offense, thereby precluding reclassification under section 775.087(1), Fla. Stat., merely because it is charged in the Information.832 Legislative intent and policy in cases meeting the criteria of section 775.087(2) and (3), involving the possession, use or discharge of a firearm, destructive device, semiautomatic firearm, or machine gun in the course of the commission or attempt to commit certain enumerated felonies, is contained in section 27.366, Fla. Stat. As stated, the intent of the Florida Legislature is that convicted defendants meeting the criteria of section 775.087(2) and (3) be sentenced to the minimum mandatory prison terms provided by that statute, while cautioning that prosecutors should appropriately exercise their discretion in those cases in which the offenders possession of the firearm is incidental to the commission of a crime and not used in furtherance of the crime, used in order to commit the crime, or used in preparation to commit the crime. Section 27.366 also

828

Cabral v. State, 944 So. 2d 1026 (Fla. 1st DCA 2006). Hurry v. State, 978 So. 2d 854 (Fla. 1st DCA 2008).

829

Jefferson v. State, 927 So. 2d 1037 (Fla. 4th DCA 2006) (Sentencing enhancement for use of a firearm during offense was not applicable to defendant's conviction for shooting a deadly missile, since use of a weapon was an essential element of the crime of shooting a deadly missile); but see, Robertson v. State, 807 So. 2d 708 (Fla. 4th DCA 2002) (additional firearm sentencing points are authorized when the defendant uses a firearm and is convicted of shooting a deadly missile because possession of a firearm is not an essential element of the crime); Bradford v. State, 722 So. 2d 858 (Fla. 1st DCA 1998) (trial court erred in imposing three-year minimum mandatory sentence for the charge of shooting or throwing a deadly missile but did not err in assessing eighteen sentencing points for use of a firearm in committing the offense).
831

830

Williams v. State, 850 So. 2d 656 (Fla. 1st DCA 2003), citing State v. Tripp, 642 So. 2d 728 (Fla. 1994).

Henry v. State, 857 So. 2d 344 (Fla. 2d DCA 2003), decision quashed, 894 So. 2d 966 (Fla. 2005) (in enhancement of second degree attempted murder to a first degree felony use of a weapon was not an element until section 775.087 was triggered and nothing in the pertinent statutes for attempted second-degree murder refers to the use of a weapon as an element of the offense); see, Goutier v. State, 692 So. 2d 978 (Fla. 2d DCA 1997) (affirming classification of attempted second-degree murder with a weapon as a first-degree felony).

832

146

mandates that, for every case in which the offender meets the criteria of section 775.087(2) or (3) and does not receive the mandatory minimum prison sentence, the state attorney must explain the sentencing deviation in writing and place such explanation in the case file maintained by the state attorney. As to firearms and destructive devices, a defendant who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for: murder; sexual battery; robbery; burglary; arson; aggravated assault; aggravated battery; kidnapping; escape; aircraft piracy; aggravated child abuse; aggravated abuse of an elderly person or disabled adult; unlawful throwing, placing, or discharging of a destructive device or bomb; carjacking; home-invasion robbery; aggravated stalking; trafficking in cannabis, trafficking in cocaine, capital importation of cocaine, trafficking in illegal drugs, capital importation of illegal drugs, trafficking in phencyclidine, capital importation of phencyclidine, trafficking in methaqualone, capital importation of methaqualone, trafficking in amphetamine, capital importation of amphetamine, trafficking in flunitrazepam, trafficking in gamma-hydroxybutyric acid (GHB), trafficking in 1,4Butanediol, trafficking in Phenethylamines, or other violation of section 893.135(1); or possession of a firearm by a felon, and during the commission of the offense, such person actually possessed a firearm or destructive device as those terms are defined in section 790.001, must be sentenced to a minimum term of imprisonment of 10 years, except that a person who is convicted for aggravated assault, possession of a firearm by a felon, or burglary of a conveyance must be sentenced to a minimum term of imprisonment of three years if such person possessed a firearm or destructive device during the commission of the offense.833 The three-year mandatory minimum sentence provided for actual possession of a firearm pursuant to section 775.087(2)(a) does not apply, however, to a defendant charged with possession of a firearm by a delinquent because that offense is not specifically enumerated in the statute.834 If, in the course of the commission of any of these felonies except possession of a firearm by a felon, the defendant discharges a firearm or destructive device, the defendant must be sentenced to a minimum term or imprisonment of 20 years.835 The firearm must, however, be discharged contemporaneously with the commission of the qualifying felony.836 Section 775.087 does not require that the firearm discharge be done knowingly or intentionally for the minimum mandatory imprisonment under section 775.087 to apply, and so may be applied in cases of accidental or unintentional discharge.837 Similarly, Section 775.087 does not require that the defendant fire at, or

833

775.087(2)(a)1, Fla. Stat. Potter v. State, 997 So. 2d 1215 (Fla. 1st DCA 2008). 775.087(2)(a)2, Fla. Stat. See, Lemus v. State, 33 So. 3d 774 (Fla. 4th DCA 2010). Compare, e.g., Dean v. U.S., 556 U.S. 568, 129 S. Ct. 1849, 173 L. Ed. 2d 785 (2009).

834

835

836

837

147

strike, his or her intended victim in order for the defendant to be subject to this particular minimum mandatory provision.838 If, as a result of the discharge, death or great bodily harm is inflicted upon any person, the defendant must be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.839 Note that the enhancement statute requires a finding of death or great bodily harm and that a finding of great bodily harm and/or permanent disability and/or permanent disfigurement does not permit enhancement under section 775.087.840 The provisions of section 775.087 do not, in any event, change the statutory maximum for all the affected offenses to life imprisonment where a firearm is discharged causing death or great bodily harm.841 An example of this would be where a defendant is convicted of attempted second-degree murder with a firearm, with the jury finding that the defendant actually possessed and discharged a firearm resulting in great bodily harm to the victim, the minimum mandatory range under section 775.087(2)(a)(3) is 25 years to life imprisonment. Attempted second-degree murder is classified as a first degree felony under section 775.087(1)(b), and carries a maximum statutory sentence of 30 years. While the sentencing court in such a situation can impose a minimum mandatory sentence of greater than 30 years, if it imposes a minimum mandatory sentence of, for example, 25 years, it cannot impose an overall sentence of greater than 30 years for that offense. In other words, the court cannot sentence the defendant in this example to life imprisonment with a mandatory minimum of 25 years.842 In situations where the the minimum mandatory is 25 years to life the sentencing court can, however, impose a life sentence with a minimum mandatory of life in prison.843 Note that when a robbery conviction is enhanced because a firearm was used during the commission of the robbery, a defendant cannot be adjudicated guilty of both robbery with a firearm and possession of a firearm in the commission of the same robbery.844 Any defendant who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a firearm is an element of the felony, and the conviction was for: murder; sexual battery; robbery; burglary; arson; aggravated assault; aggravated battery; kidnapping; escape; sale, manufacture, delivery, or intent to sell, manufacture, or deliver any controlled substance; aircraft

838

Chavers v. State, 112 So. 3d 594 (Fla. 4th DCA 2013). 775.087(2)(a)3, Fla. Stat. Johnson v. State, 53 So. 3d 360 (Fla. 5th DCA 2011). Wooden v. State, 42 So. 3d 837 (Fla. 5th DCA 2010); Yasin v. State, 896 So. 2d 875 (Fla. 5th DCA

839

840

841

2005).
842

McLeod v. State, 52 So. 3d 784 (Fla. 5th DCA 2010). Flowers v. State, 69 So. 3d 1042 (Fla. 1st DCA 2011). Dorsett v. State, 873 So. 2d 424 (Fla. 3d DCA 2004).

843

844

148

piracy; aggravated child abuse; aggravated abuse of an elderly person or disabled adult; unlawful throwing, placing, or discharging of a destructive device or bomb; carjacking; home-invasion robbery; aggravated stalking; or trafficking in cannabis, trafficking in cocaine, capital importation of cocaine, trafficking in illegal drugs, capital importation of illegal drugs, trafficking in phencyclidine, capital importation of phencyclidine, trafficking in methaqualone, capital importation of methaqualone, trafficking in amphetamine, capital importation of amphetamine, trafficking in flunitrazepam, trafficking in gamma-hydroxybutyric acid (GHB), trafficking in 1,4Butanediol, trafficking in Phenethylamines, or other violation of section 893.135(1), and during the commission of the offense, the defendant possessed a semiautomatic firearm and its high-capacity detachable box magazine or a machine gun as defined in section 790.001, must be sentenced to a minimum term of imprisonment of 15 years.845 If, during the course of the commission of one of these felonies the defendant discharges the weapon, the defendant must be sentenced to a minimum term of imprisonment of 20 years.846 If, as a result of the discharge, death or great bodily harm is inflicted on any person, the defendant must be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.847 The provisions of section 775.087(2)(a) 1.3. do not prevent a court from imposing a longer sentence of incarceration as authorized by law in addition to the minimum mandatory sentence, or from imposing a sentence of death pursuant to other applicable law. Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3. does not authorize a court to impose a lesser sentence than otherwise required by law. Notwithstanding section 948.01, adjudication of guilt or imposition of sentence cannot be suspended, deferred, or withheld, and the defendant is not eligible for statutory gain-time under section 944.275 or any form of discretionary early release, other than pardon or executive clemency, or conditional medical release under section 947.149, prior to serving the minimum sentence.848 If the minimum mandatory terms of imprisonment imposed pursuant to section 775.087 exceed the maximum sentences authorized by section 775.082, section 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed. If the mandatory minimum terms of imprisonment pursuant to section 775.087 are less than the sentences that could be imposed as authorized by section 775.082, section 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in section 775.087.849

845

775.087(3)(a)1, Fla. Stat. 775.087(3)(a)2, Fla. Stat. 775.087(3)(a)3, Fla. Stat. 775.087(2)(b), Fla. Stat. 775.087(2)(c), Fla. Stat.

846

847

848

849

149

The 10/20/Life law applies only where the offender actually possessed a firearm or destructive device as those terms are defined in section 790.001, Fla. Stat.850 Under section 790.001(6), the term firearm does not include an antique firearm unless the antique firearm is used in the commission of a crime.851 A toy gun does not fit within the definition of firearm under the 10/20/life statute.852 Where a firearm is used in the commission of a crime, the fact that the firearm is inoperable makes no difference.853 The 10/20/Life statute requires that the firearm be carried on the person or be within immediate physical reach with ready access with the intent to use the firearm before the minimum mandatory term under section 775.087(2)(a)1., Fla. Stat. can be applied.854 Conviction on a principal theory is not sufficient to warrant the imposition of the minimum mandatory sentence for carrying a firearm during a felony offense.855 To discharge a destructive device for purposes of section 775.087(2) providing for a mandatory minimum 20-year sentence, the device must explode, that is, function as it was intended and does not misfire.856 Before a trial court can enhance a defendants sentence by applying the mandatory minimum sentence for use of a firearm, the grounds for enhancement must be charged in the information and the jury must make a finding that the defendant committed the crime while using a firearm either by finding him guilty of a crime which involves a firearm or by answering a specific question of a special verdict form so indicating.857 The charging document must also plead specifically the basis for a requested enhancement and the statute authorizing the requested enhancement; mere reference in the charging document to the statute is insufficient to provide notice to the defendant that the State

850

775.087(2)(a)(1), Fla. Stat.; Bundrage v. State, 814 So. 2d 1133 (Fla. 2d DCA 2002). Margiotti v. State, 844 So. 2d 829 (Fla. 3d DCA 2003).

851

Cesar v. State, 94 So. 3d 703 (Fla. 4th DCA 2012) (uncontradicted testimony by witness that the gun used by the defendant appeared to be a toy gun precludes imposition of firearm minimum mandatory); Coley v. State, 801 So. 2d 205, 20607 (Fla. 2d DCA 2001) (holding that a BB gun is not a firearm under the 10/20/Life statute). Margiotti v. State, 844 So. 2d 829 (Fla. 3d DCA 2003); see, Bentley v. State, 501 So. 2d 600, 68 A.L.R.4th 501 (Fla. 1987); Mitchell v. State, 698 So. 2d 555, 558 (Fla. 2d DCA 1997), decision approved, 703 So. 2d 1062 (Fla. 1997); State v. Altman, 432 So. 2d 159 (Fla. 3d DCA 1983).
854 853

852

775.087(4), Fla. Stat. McGill v. State, 878 So. 2d 1270 (Fla. 5th DCA 2004). Wallace v. State, 860 So. 2d 494 (Fla. 4th DCA 2003).

855

856

State v. Iseley, 944 So. 2d 227 (Fla. 2006); Tucker v. State, 726 So. 2d 768 (Fla. 1999) (jury verdict finding defendant guilty of attempted first-degree murder with a firearm sufficient to increase permissible sentencing range based on defendants use of a firearm, even though verdict form not technically a special verdict form); State v. Hargrove, 694 So. 2d 729, 730 (Fla. 1997); State v. Overfelt, 457 So. 2d 1385, 1387 (Fla. 1984) (quoting Overfelt v. State, 434 So. 2d 945, 948 (Fla. Dist. Ct. App. 4th Dist. 1983)).

857

150

is seeking the specific enhancement.858 An information does not have to refer to section 775.087 for the enhancement to apply, as long as it alleges the use of a firearm.859 The verdict must also reflect a clear jury finding that the defendant used a firearm before the defendants sentence may be enhanced.860 Even if an information charges the use of a firearm, a verdict form that simply recites that the defendant is guilty as charged does not support reclassification of the crime under section 775.087(1) and the associated enhancement because there is no specific jury finding that the defendant used a firearm.861 Moreover, an as charged verdict will not support the imposition of a minimum mandatory sentence under section 775.087(2) when the verdict fails to reflect that the defendant was in actual, as opposed to constructive, possession of a firearm.862 The phrase with a firearm, as charged on the verdict form incorporates the factual allegation that the defendant possessed a firearm, which would justify imposition of a 10year minimum mandatory sentence under the enhancement provision in section 775.087(2)(a)(1), Fla. Stat., but does not constitute a factual finding that a firearm was discharged.863 Where the information alleges that the defendant possessed, used, or attempted to use firearm in violation of sections 775.087, 782.04(1)(a) and 777.04, and does not allege that the defendant discharged the firearm, a jury finding that the defendant discharged a firearm is sufficient to trigger the 10-year minimum mandatory provision of section 775.087(2)(a)1., Fla. Stat., for possession of the firearm as that factor was contained in the charging document, but is insufficient to trigger the 20year minimum mandatory provision of section 775.087(2)(a)2., Fla. Stat., for discharge of the firearm.864 The charging document must state, and the jury must specifically find, that the defendant discharged the firearm for imposition of the 20year minimum mandatory sentence.865 The finding of the jury does not have to exactly match the statutory language, and a jury finding of serious bodily injury is synonymous with great bodily harm and sufficient for imposition of the 25-year mandatory minimum prison sentence.866 Similarly, the charging document and the verdict form must incorporate that the defendant

See, Freudenberger v. State, 940 So. 2d 551 (Fla. 2d DCA 2006); Inmon v. State, 932 So. 2d 518 (Fla. 4th DCA 2006).
859

858

Bundrage v. State, 814 So. 2d 1133 (Fla. 2d DCA 2002).

Orjales v. State, 758 So. 2d 1157, 1159 (Fla. 2d DCA 2000) (quoting State v. Hargrove, 694 So. 2d 729, 731 (Fla. 1997)); see, Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
861

860

See, Toro v. State, 691 So. 2d 576, 577 (Fla. 2d DCA 1997).

Henry v. State, 834 So. 2d 406, 407 (Fla. 2d DCA 2003); see, Thompson v. State, 862 So. 2d 955 (Fla. 2d DCA 2004).
863

862

Muldrow v. State, 842 So. 2d 240 (Fla. 2d DCA 2003). Bell v. State, 876 So. 2d 712 (Fla. 4th DCA 2004). See, Koch v. State, 874 So. 2d 606 (Fla. 5th DCA 2004).

864

865

Mendenhall v. State, 999 So. 2d 665 (Fla. 5th DCA 2008), decision approved, 48 So. 3d 740 (Fla. 2010), approved Mendenhall v. State, 48 So. 3d 740 (Fla. 2010).

866

151

discharged the firearm and as a result inflicted death or great bodily harm upon a person to support imposition of the 25year minimum mandatory-to-life sentence under that subparagraph of the statute.867 The same logic applies to the 15/20/25to-Life provisions of subparagraph (3) of the statute, pertaining to semiautomatic firearms with high-capacity box magazines and machine guns. The special verdict formnot allegations in an informationindicates when a jury finds a weapon has been used.868 Where the crime charged is aggravated battery either by great bodily harm or use of a deadly weapon, the jury verdict form must make a distinction between the two types of aggravated battery. If the Information charges aggravated battery by use of a deadly weapon, the use of the weapon is an essential element of the crime and reclassification is not permitted.869 Where it is unclear whether the defendant was found guilty of aggravated battery based on great bodily harm or the use of a deadly weapon, reclassification is not permitted.870 Section 775.087 does not define what use of a weapon or firearm means for purposes of mandatory minimum sentencing, and the term has not otherwise been clarified by the courts of Florida. The United States Supreme Court has interpreted the term in comparable federal laws to mean, for example, that a defendant who trades his or her firearm for drugs does use that firearm,871 a defendant who trades his or her drugs for a firearm does not use the firearm,872 and a defendant who has a firearm nearby during a drug transaction does not use the firearm without something more than mere possession.873 The stated intent of the Legislature is that defendants convicted of firearms offenses should be punished to the fullest extent of the law, and the court is commanded to impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.874 The any other language in section 775.087 mandating
867

See, Adams v. State, 916 So. 2d 36 (Fla. 2d DCA 2005) (reversal of 25year minimum mandatory sentence under section 775.087(2)(a)3. where information included correct statute number but failed to allege that defendant discharged firearm, notwithstanding jury finding that the defendant discharged a firearm); Amos v. State, 833 So. 2d 841 (Fla. 4th DCA 2002).
868

State v. Tripp, 642 So. 2d 728 (Fla. 1994). Crawford v. State, 858 So. 2d 1131 (Fla. 2d DCA 2003).

869

Perry v. State, 858 So. 2d 1270 (Fla. 1st DCA 2003); Montgomery v. State, 704 So. 2d 548, 55051 (Fla. 1st DCA 1997).
871

870

Smith v. U.S., 508 U.S. 223, 113 S. Ct. 2050, 124 L. Ed. 2d 138 (1993). Watson v. U.S., 552 U.S. 74, 128 S. Ct. 579, 169 L. Ed. 2d 472 (2007). Bailey v. U.S., 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995). 775.087(2)(d) and (3)(d), Fla. Stat.

872

873

874

152

sentences consecutive to any other term of imprisonment imposed for any other felony offense, if the defendant possesses, carries, displays, uses, threatens to use, or attempts to use firearms, does not limit the statute to crimes which take place at different times; the statute thus does not preclude a trial court from imposing consecutive mandatory minimum sentences unless the other felony offenses occurred during a different criminal episode.875 The Fifth District Court of Appeals has taken the position that the imposition of consecutive minimum mandatory sentences under section 775.087(2) is improper where the offenses occurred during a single criminal episode, unless the defendant discharges the firearm and injures multiple victims or causes multiple injuries to one victim.876 The First District has recently adopted the position that stacking minimum mandatory sentences under section 775.087(2) is permissible under such circumstances.877 The Fourth District has recently adopted the position that the trial court is required to impose consecutive sentences for each qualifying felony in accordance with the plain language of section 775.087(2)(d), whether or not a firearm is discharged.878 Where the defendant is convicted of multiple offenses that have occurred in separate criminal episodes and one of the offenses carries a minimum mandatory sentence pursuant to the 10/20/Life statute (as where a defendant on probation for one offense commits two new offenses, and one of the new offenses carries a minimum mandatory term of imprisonment under the 10/20/Life statute), the sentencing court must sentence the 10/20/Life offense consecutively to the other new offense and may also run the violation of probation sentence consecutively to the new offenses.879 It is important to note that the carries, displays, uses, threatens to use, or attempts to use language of reclassification in section 775.087(1) and the actually possessed language of mandatory minimum sentencing in section 775.087(2)(a)1. is not interchangeable. In order to impose the mandatory minimum sentence the State must allege in the Information that the defendant did actually possess a firearm and, to reclassify the level of offense where a firearm is involved, the State must allege in the Information that during the commission of the offense the defendant carried, displayed, used, threatened to use, or attempted to use a firearm. As such, the language of section 775.087(1) cannot be used on the verdict form for purposes of imposing the firearm mandatory minimum sentence and the language of section 775.087(2)(a)1. cannot be used for purposes of reclassification. This means, for example, that a jury finding that the defendant actually possessed a firearm cannot be used to reclassify the underlying offense.880
875

State v. Sousa, 903 So. 2d 923 (Fla. 2005).

Swanigan v. State, 57 So. 3d 989 (Fla. 5th DCA 2011); Valentin v. State, 963 So. 2d 317, 31920 (Fla. 5th DCA 2007).
877

876

Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013). Williams v. State, 2013 WL 1748687, 125 So. 3d 879 (Fla. 4th DCA 2013). State v. Sousa, 903 So. 2d 923 (Fla. 2005); State v. Christian, 692 So. 2d 889 (Fla. 1997). Green v. State, 18 So. 3d 656 (Fla. 2d DCA 2009).

878

879

880

153

 2.20. Dangerous sexual felony offender A Dangerous Sexual Felony Offender (DSFO) is any person who is convicted of a violation of section 787.025(2)(c); section 794.011(2), (3), (4), (5), or (8); section 800.04(4) or (5); section 825.1025(2) or (3); section 827.071(2), (3), or (4); or section 847.0145; or of any similar offense under a former designation, which offense the person committed when he or she was 18 years of age or older, and the person: (a) caused serious personal injury to the victim as a result of the commission of the offense;881 (b) used or threatened to use a deadly weapon during the commission of the offense;882 (c) victimized more than one person during the course of the criminal episode applicable to the offense;883 (d) committed the offense while under the jurisdiction of a court for a felony offense under the laws of this state, for an offense that is a felony in another jurisdiction, or for an offense that would be a felony if that offense were committed in this state;884 or (e) has previously been convicted of a violation of section 787.025(2)(c); section 794.011(2), (3), (4), (5), or (8); section 800.04(4) or (5); section 825.1025(2) or (3); section 827.071(2), (3), or (4); section 847.0145; of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph; or of any offense that is a felony in another jurisdiction, or would be a felony if that offense were committed in Florida, and which is similar in elements to an offense described in section 794.0115(3).885 A DSFO must be sentenced to a mandatory minimum term of 25 years imprisonment up to, and including, life imprisonment.886 The phrase under the jurisdiction of a court for a felony offense includes probation.887 Serious personal injury means great bodily harm or pain, permanent disability, or permanent disfigurement.888 The offense described in subsection 794.0115(2) which is being charged must have been committed after the date of commission of the last prior conviction for an offense that is a prior conviction described in section 794.0115(2)(e).889 It is irrelevant that a factor listed in subsection 794.0115(2) is an element of an offense described in that subsection. It is also irrelevant that such an offense was reclassified to a higher felony degree under section 794.023 or

881

794.0115(2)(a), Fla. Stat. 794.0115(2)(b), Fla. Stat. 794.0115(2)(c), Fla. Stat. 794.0115(2)(d), Fla. Stat. 794.0115(2)(e), Fla. Stat. 794.0115(2), Fla. Stat. Williams v. State, 83 So. 3d 1001 (Fla. 1st DCA 2012), review denied, 95 So. 3d 215 (Fla. 2012). 794.0115(3), Fla. Stat. 794.0115(4), Fla. Stat.

882

883

884

885

886

887

888

889

154

any other law.890 A prior nolo contendere plea and a withhold of adjudication for a qualifying offense constitutes a prior conviction for purposes of the Dangerous Sexual Felony Offender Act.891 Notwithstanding section 775.082(3), chapter 958, any other law, or any interpretation or construction thereof, a person subject to sentencing as a DSFO under section 794.0115 must be sentenced to the mandatory term of imprisonment provided under that section. If the mandatory minimum term of imprisonment imposed under that section exceeds the maximum sentence authorized under section 775.082, section 775.084, or chapter 921, the mandatory minimum term of imprisonment under section 794.0115 must be imposed. If the mandatory minimum term of imprisonment under section 794.0115 is less than the sentence that could be imposed under section 775.082, section 775.084, or chapter 921, the sentence imposed must include the mandatory minimum term of imprisonment under section 794.0115.892 A defendant sentenced to a mandatory minimum term of imprisonment under section 794.0115 is not eligible for statutory gain-time under section 944.275 or any form of discretionary early release, other than pardon or executive clemency, or conditional medical release under section 947.149, before serving the minimum sentence.893 Unlike habitual offender sentencing, where the state must file a notice of its intent to seek habitual offender sentencing,894 and the court has some discretion in the determination of habitual offender status,895 no discretion exists under section 794.0115. If the defendant is convicted of a qualifying offense and has a prior qualifying offense, a mandatory sentence of 25 years to life is imposed. So as to make its intention unmistakable, the legislature also provided that this mandatory sentence trumps all other types of sentencing statutes which might yield a lesser sentence.896 3. Direct and collateral consequences and special sanctions A judge is required to inform a defendant only of the direct consequences of his or her plea and is under no duty to apprise him or her of any collateral consequences. A direct consequence is one that has a definite, immediate, and largely automatic effect on the range of the defendants

890

794.0115(5), Fla. Stat. State v. Mason, 979 So. 2d 301 (Fla. 5th DCA 2008). 794.0115(6), Fla. Stat. 794.0115(7), Fla. Stat. See, Ashley v. State, 614 So. 2d 486 (Fla. 1993).

891

892

893

894

See, 775.084(4)(e), Fla. Stat. (court may find that habitual offender designation is not necessary for the protection of the public).
896

895

794.0115(6), Fla. Stat.; see, Abrams v. State, 971 So. 2d 1033 (Fla. 4th DCA 2008).

155

punishment.897 A collateral consequence is one that does not.898 There are, nonetheless, a number of court-imposed special sanctions and other consequences not imposed by the court that complicate matters beyond the formal sentence imposed on a defendant. Outside of the realm of punishment and sentence are a number of civil administrative and regulatory sanctions, including incarceration, that the trial court can, and in some cases must, impose on a defendant. While not strictly part of the defendants punishment, it is important that the practitioner be aware of these special sanctions, which may be the direct or collateral result of a negotiated plea or conviction after trial. Although imposed by the criminal courts, these sanctions are outside the Florida Rules of Criminal Procedure and many of the constitutional rights normally attendant to traditional criminal punishment and sentencing, such as the right against self-incrimination and the application of the ex post facto rule.899 Many of these sanctions involve substantive rights, such as the right to be at liberty, while other involve important privileges, such as the privilege to drive a motor vehicle on the roads of Florida. Ordinarily, non-penal statutes cannot divest citizens of substantive rights retroactively.900 For this reason, it is a well established rule of statutory construction that, in the absence of an express legislative statement to the contrary, an enactment that affects substantive rights or creates new obligations or liabilities is presumed to apply prospectively.901 Where the Legislature elects to do so, however, it can impose these sanctions retroactively, because they are not considered punishment in the constitutional sense. The comprehension by prosecutor or defense attorney of such non-punitive sanctions involves recognition of the circumstances under which they may or may not be imposed, the long-term implications of these sanctions, competence in the Florida Rules of Civil Procedure or other unique procedural rules that are attendant with their imposition, and the ability to recognize whether a given sanction is in fact punitive (criminal) or non-punitive (civil).

897

Major v. State, 814 So. 2d 424 (Fla. 2002).

State v. Partlow, 840 So. 2d 1040 (Fla. 2003) (statutory sex offender registration is a collateral consequence of a plea). See, e.g., State v. Colley, 744 So. 2d 1172 (Fla. 2d DCA 1999) (in general, the rules of criminal procedure do not apply to sexual predator designations); but see, In re Beverly, 342 So. 2d 481, 489, 97 A.L.R.3d 767 (Fla. 1977) (The subject of an involuntary civil commitment proceeding has the right to the effective assistance of counsel at all significant stages of the commitment process.). See generally, Chase Securities Corp. v. Donaldson, 325 U.S. 304, 312 n.8, 315316, 65 S. Ct. 1137, 89 L. Ed. 1628 (1945); William Danzer & Co. v. Gulf & S.I.R. Co., 268 U.S. 633, 637, 45 S. Ct. 612, 69 L. Ed. 1126 (1925); State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995).
901 900 899

898

Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996).

156

Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction.902 A court must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.903 Even in those cases where the legislature has indicated an intention to establish a civil penalty, the United States Supreme Court has inquired further whether the statutory scheme was so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty.904 In making this latter determination, the factors listed in Kennedy v. Mendoza-Martinez905 provide useful guideposts, including: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishmentretribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it rationally may be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. These factors, however, must be considered in relation to the statute on its face, and only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.906 Examples of such court-imposed non-punitive sanctions that illustrate this aspect of sentencing law include drivers license revocations,907 the registration and reporting requirements for sexual offenders and sexual predators, and involuntary civil commitment under the Baker Act and the Jimmy Ryce Act. 3.1. DNA testing Each qualifying offender is required to submit a DNA sample at the time he or she is booked into a jail, correctional facility, or juvenile facility.908 Qualifying offender means any person, including juveniles and adults, who is: committed to a county jail; committed to or under the supervision of the Department of Corrections, including persons incarcerated in a private
Helvering v. Mitchell, 1938-1 C.B. 317, 303 U.S. 391, 58 S. Ct. 630, 82 L. Ed. 917, 38-1 U.S. Tax Cas. (CCH) P 9152, 20 A.F.T.R. (P-H) P 796 (1938). U.S. v. Ward, 448 U.S. 242, 100 S. Ct. 2636, 65 L. Ed. 2d 742, 14 Envt. Rep. Cas. (BNA) 1673, 10 Envtl. L. Rep. 20477 (1980).
904 903 902

Rex Trailer Co. v. U.S., 350 U.S. 148, 76 S. Ct. 219, 100 L. Ed. 149 (1956). Kennedy v. Mendoza-Martinez, 372 U.S. 144, 16869, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963).

905

Hudson v. U.S., 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450, 162 A.L.R. Fed. 737 (1997) (monetary penalties and occupational disbarment imposed by Office of the Comptroller of the Currency are not criminal punishment for purposes of double jeopardy).
907

906

Bolware v. State, 995 So. 2d 268 (Fla. 2008). 943.325(3), Fla. Stat.

908

157

correctional institution operated under contract pursuant to section 944.105; committed to or under the supervision of the Department of Juvenile Justice; transferred to Florida under the Interstate Compact on Juveniles, part XIII of chapter 985; or accepted under Article IV of the Interstate Corrections Compact, part III of chapter 941, and who is: convicted of any felony offense or attempted felony offense in Florida state or of a similar offense in another jurisdiction; convicted of a misdemeanor violation of section 784.048, 810.14, 847.011, 847.013, 847.0135, or 877.26, or an offense that was found, pursuant to section 874.04, to have been committed for the purpose of benefitting, promoting, or furthering the interests of a criminal gang as defined in section 874.03; or arrested for any felony offense or attempted felony offense in Florida.909 DNA samples collected under section 943.325(3)(a) from persons arrested for any felony offense or attempted felony offense in Florida are subject to sufficient funding appropriations passed by the Legislature and approved by the Governor according to the following schedule: 1. Beginning January 1, 2011, all felonies defined by chapters 782, 784, 794, and 800. 2. Beginning January 1, 2013, all felonies defined by chapters 810 and 812. 3. Beginning January 1, 2015, all felonies defined by chapters 787 and 790. 4. Beginning January 1, 2017, all felonies defined by chapter 893. 5. Beginning January 1, 2019, all remaining felony 155 offenses.910 Any qualifying offender, who is: (1) arrested in Florida; (2) incarcerated in Florida; or (3) on probation, community control, parole, conditional release, control release, or any other type of court-ordered supervision in Florida, is required to submit a DNA sample to a Florida Department of Law Enforcement (FDLE)-designated facility.911 Arrested qualifying offenders must submit a DNA sample at the time they are booked into a jail, correctional facility, or juvenile facility.912 Incarcerated persons and those in the custody of the Department of Juvenile Justice must submit required DNA samples not less than 45 days before their presumptive date of release from such incarceration or commitment.913 Upon the conviction of any qualifying offender which results in the commitment of the offender to a county jail, correctional facility, or juvenile facility, the entity responsible for the jail or facility shall ensure that a DNA sample is promptly secured and

909

943.325(2)(g), Fla. Stat. 943.325(3)(b), Fla. Stat. 943.325(7)(a), Fla. Stat. 943.325(7)(b), Fla. Stat. 943.325(7)(c), Fla. Stat.

910

911

912

913

158

transmitted to FDLE.914 Personnel at the jail, correctional facility, or juvenile facility shall collect the DNA samples as part of the regular processing of qualifying offenders committed to the jail or facility.915 If a qualifying offender is not incarcerated following conviction, that offender may not be released from the custody of the court at the time of sentencing or released pursuant to a bond or surety until the DNA sample required by section 943.325 has been taken by the sheriff or his or her designee. The sheriff is required to secure, process, and transmit the DNA sample to FDLE in a timely manner.916 Note that a defendant, who has completed his or her sentence and is neither incarcerated or under any form of court-ordered supervision, does not fall within the plain language of the statute's purview and so cannot be compelled to submit a specimen of his or her blood or other biological specimens for testing under this law.917 Unless the department determines that a person is otherwise required by law to submit a DNA sample for inclusion in the statewide DNA database, FDLE is required, upon receipt and completion of such verification of the information noted in section 945.325(16) as may be required, promptly remove from the statewide DNA database the DNA analysis and any DNA biological samples that may have been retained of a person included therein: (a) On the basis of a conviction for a qualifying offense specified in section 945.325(2)(g)2., if the department receives, from the person seeking removal of DNA information from the statewide DNA database, for each qualifying offense, a certified copy of a final court order establishing that such conviction has been overturned on direct appeal or set aside in a postconviction proceeding; or (b) On the basis of an arrest, if the department receives from the person seeking removal of DNA information from the statewide DNA database, for each charge against the person on the basis of which the analysis was or could have been included in the statewide DNA database, a certified copy of the No Information or Nolle Prosequi filed by the state attorney, or final court order or other official documentation establishing that such charge has been dismissed or has resulted in an acquittal or that no charge was filed within the applicable time period. For purposes of section 945.325(2)(g)2., a court order is not final if time remains for an appeal or application for discretionary review with respect to the order, or if a case has been remanded for retrial or other proceedings and has not been resolved after remand, or time remains for appeal or discretionary review of the remanded case or any other such proceedings that have not concluded and rendered the case resolved with finality.918

914

943.325(7)(d), Fla. Stat. 943.325(7)(e), Fla. Stat. 943.325(7)(f), Fla. Stat. See, Smith v. State, 955 So. 2d 21 (Fla. 3d DCA 2006). 945.325(16), Fla. Stat.

915

916

917

918

159

 3.2. Drivers license revocation The most commonly imposed non-punitive sanction on a criminal defendant along with criminal sanctions at sentencing is revocation of the defendants drivers license. A persons driving license can be revoked for varying length of time upon conviction for crimes such as DUI and drug possession. A common misperception among practitioners is as to the extent of the trial courts ability to revoke a driver license, especially in DUI cases. Section 316.655(2), Fla. Stat., provides that a driver convicted of any offense prohibited by chapter 316, Fla. Stat. or any other law in Florida regulating motor vehicles, which resulted in an accident may have his or her driving privileges revoked or suspended by the court if the court finds such revocation or suspension warranted by the totality of the circumstances resulting in the conviction and the need to provide the maximum safety for all persons who travel on or who are otherwise affected by the use of the highways of the state. Pertinent factors to be considered by the court in determining whether suspension or revocation is appropriate include, but are not limited to, the extent and nature of the drivers violation of chapter 316, the number of persons killed or injured as a result of the drivers violation of chapter 316, and the extent of any property damage resulting from the drivers violation of chapter 316.919 Section 322.28(2)(a), Fla. Stat., authorizes the court to suspend or revoke a defendants driver license along with imposing sentence for DUI for (1) at least 180 days and not more than one year for the first DUI conviction, (2) at least five years for a DUI that occurs within five years after the date of a prior conviction for DUI, and (3) at least 10 years for a third DUI that occurs within a period of 10 years after the date of a prior conviction for DUI. The time periods for recidivist DUI license revocation are floors and not ceilings, and nothing in section 322.28(a)2 and 3 prohibits a court from imposing a term of suspension or revocation longer than five years for a second DUI conviction, or longer than 10 years for a third conviction.920 Section 316.655(2), Fla. Stat., specifically permits the court to do so up to and including permanent revocation if warranted by the circumstances.921 Section 322.055(1), Fla. Stat., provides that, notwithstanding the provisions of section 322.28, upon the conviction of a person 18 years of age or older for the possession of, trafficking in, or conspiracy to possess, sell or traffic in a controlled substance, the court is required to direct the Department of Highway Safety and Motor Vehicles (DHSMV) to revoke the driver license or driving privileges of the person for two years or until the person is evaluated for and, if deemed necessary by the evaluating agency, completes a drug treatment and rehabilitative program approved or regulated by the Department of Children and Family Services (DCF). Section 322.055(2) provides that if such person so convicted does not have a license but is eligible by reason of age for a drivers license or privilege, the court is required to direct DHSMV to withhold issuance of such persons driving license or driving privileges for a period of two years after the date the person was convicted
919

316.655(2), Fla. Stat. 316.655(2), Fla. Stat. Stoletz v. State, 875 So. 2d 572 (Fla. 2004).

920

921

160

or until the person is evaluated for and, if deemed necessary by the evaluating agency, completes a drug treatment and rehabilitative program approved or regulated by DCF. Section 322.055(3) provides that, if the persons driver license or driving privileges are already under suspension at the time of conviction, the court will direct DHSMV to impose an additional two years suspension, subject to the same provisions for drug treatment and rehabilitation as in the other sections of this law. Section 322.055(4) provides that if the person so convicted is ineligible by reason of age for a driver license or driving privilege, the court is required to direct DHSMV to withhold issuance of such persons drivers license or driving privileges for a period of two years after the date that he or she would otherwise have become eligible or until he or she becomes eligible by reason of age for a driver license and is evaluated for and, if deemed necessary by the evaluating agency, completes a drug treatment and rehabilitative program approved or regulated by DCF. The court has the discretion, in all cases arising under subsections (1) through (4) of this law, to direct DHSMV to issue a license for driving privileges restricted to business or employment purposes as defined by section 322.271, if the person is otherwise qualified for such a license. Comparable provisions applicable to persons under age 18 years are found in section 322.056. Following a second or subsequent violation of section 796.07(2)(f), pertaining to prostitution, which involves a motor vehicle and which results in any judicial disposition other than acquittal or dismissal, in addition to any other sentence imposed, the court must revoke the persons driver license or driving privilege, effective upon the date of the disposition, for a period of not less than one year. A person sentenced under section 322.28(7) may request a hearing under section 322.271.922 The court must permanently revoke the driver license or driving privilege of a person who has been convicted of murder resulting from the operation of a motor vehicle. No driver license or driving privilege may be issued or granted to any such person.923 The sentencing court is required to determine whether the defendant understands that if the defendant pleads guilty or nolo contendere and the offense to which the defendant is pleading is one for which automatic, mandatory driver license suspension or revocation is required by law to be imposed (either by the court or by a separate agency), the plea will provide the basis for the suspension or revocation of the defendant's driver license.924 3.3. Loss of civil liberties upon conviction of a felony Upon conviction of a felony, that is, any criminal offense that is punishable under the laws of Florida, or that would be punishable if committed in Florida, by death or imprisonment in the state

922

322.28(7), Fla. Stat. 322.28(3), Fla. Stat. Fla. R. Crim. P. 3.172(c)(10).

923

924

161

prison system,925 the civil rights of the person convicted are suspended in Florida until such rights are restored by full pardon, conditional pardon, or restoration of civil rights granted pursuant to Art. IV, section 8 of the Florida Constitution.926 A person who has been convicted of a felony by any court of record and who has not had his or her right to vote restored pursuant to law is not entitled to register or vote pursuant to the Florida Election Code or to hold public office.927 A convicted felon may not carry a concealed weapon or own, possess or control a firearm or ammunition.928 Convicted felons are not allowed to serve on juries.929 Persons convicted of crimes may be barred from obtaining professional licenses, and a person who has a professional license and is convicted of a crime may have his or her license revoked by the relevant regulatory agency. Conviction of a crime may also result in disqualification to hold a government job and other limits on employment opportunities. 3.4. Registration of convicted felons Any person who has been convicted of a felony in any court in Florida is required, within 48 hours after entering any county in Florida, to register with the sheriff of that county, be fingerprinted and photographed, and list the crime for which convicted, place of conviction, sentence imposed, if any, name, alias, if any, address, and occupation.930 The same requirements are mandated for any person who has been convicted of a crime in any federal court or in any court other than a Florida court, or in any foreign state or country, which crime if committed in Florida would be a felony.931 Conviction in this sense means a determination of guilt which is the result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld.932 This registration requirement does not apply to a person who: 1. Has had his or her civil rights restored;933
925

The term felony' as used herein and in the laws of this state shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by death or imprisonment in the state penitentiary. Art. X, 10, Fla. Const.
926

944.292(1), Fla. Stat. Art VI, 4, Fla. Const.; 97.041(2)(b), Fla. Stat. 790.23, Fla. Stat. 40.013(1), Fla. Stat. 775.13(2), Fla. Stat. 775.13(3), Fla. Stat. 775.13(1), Fla. Stat. 775.13(4)(a), Fla. Stat.

927

928

929

930

931

932

933

162

2. Has received a full pardon for the offense for which convicted;934 3. Has been lawfully released from incarceration or other sentence of supervision for a felony conviction for more than five years prior to such time for registration, unless the person is a fugitive from justice on a felony charge or has been convicted of any offense since release from such incarceration or other sentence of supervision;935 4. Is a parolee or probationer under the supervision of the United States Parole Commission if the commission knows of and consents to the presence of the person in Florida or is a probationer under the supervision of any federal probation officer in the state or who has been lawfully discharged from such parole or probation;936 5. Is a sexual predator and has registered as required under section 775.21;937 6. Is a sexual offender and has registered as required in section 943.0435 or section 944.607;938 7. Is a career offender and has registered as required in section 775.261 or section 944.609.939 With regard to any felon who has been found, pursuant to section 874.04, to have committed any offense for the purpose of benefitting, promoting, or furthering the interests of a criminal gang, constitutes a felony of the third degree, punishable as provided in section 775.082, section 775.083, or section 775.084.940 With regard to all other felons, failure to register as required by section 775.13 is a misdemeanor of the second degree.941 3.5. Forfeiture One of the foremost civil consequences of a defendants engagement in criminal activity is forfeiture of property used, attempted to be used, or intended to be used in the commission of a

934

775.13(4)(b), Fla. Stat. 775.13(4)(c), Fla. Stat. 775.13(4)(d), Fla. Stat. 775.13(4)(e), Fla. Stat. 775.13(4)(f), Fla. Stat. 775.13(4)(g), Fla. Stat. 775.15(5)(b), Fla. Stat. 775.13(5)(a), Fla. Stat.

935

936

937

938

939

940

941

163

crime. Under the Florida Contraband Forfeiture Act942 and other statutes, such 943property can be seized by and forfeited to the state if the state can establish by a preponderance of the evidence that the defendant knew, or should have known after a reasonable inquiry, that the property was being employed or was likely to be employed in a criminal activity.944 Under the Florida Contraband Forfeiture Act, articles falling within the definition of contraband may be seized and ultimately forfeited.945 Following the seizure of personal property, the State must notify all interested parties of their right to request a postseizure adversarial preliminary hearing.946 If requested, the circuit court must hold a hearing and determine whether there is probable cause to believe that the property is subject to forfeiture.947 Note that the Florida Contraband Forfeiture Act does not preempt municipalities from adopting ordinances authorizing the seizure and impoundment of vehicles used in the commission of enumerated misdemeanor offenses. Although impoundment and forfeiture are related concepts in the context of governmental seizure of personal property, they are not synonymous terms. Essentially, an impoundment is the temporary taking of tangible, personal property; a forfeiture is the permanent taking of real of personal property (tangible or intangible). Forfeitures are designed primarily to confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct. Impoundment, on the other hand, is to place something in the custody of the police or the courts, often with the understanding that it will be returned intact at the end of the proceeding. Where, for instance, impoundment is normally a temporary deprivation of ones property until one pays a fee to release it, which is in the nature of a civil penalty, forfeiture seeks to permanently divest the owner of all right and title to the property.948 3.6. HIV testing In any case in which a person has been convicted of or has pled nolo contendere or guilty to, regardless of whether adjudication is withheld, any of the following offenses, or the attempt thereof,
942

932.701 to 932.706, Fla. Stat.

See, for example, 322.34(9)(a), Fla. Stat. (forfeiture of motor vehicle being driven by DUI driver driving on a prior DUI suspension); 831.03, Fla. Stat. (Property used in commission of forgery or counterfeiting in connection with goods or services); Sec. 831.05 (vending goods or services with counterfeit trademarks or service labels); 951.22, Fla. Stat. (contraband in county detention facilities).
944

943

932.703(6)(a), Fla. Stat. 932.703(1), Fla. Stat. 932.703(2)(a), Fla. Stat.

945

946

932.703(2)(c), Fla. Stat.; see also, Department of Law Enforcement v. Real Property, 588 So. 2d 957, 96566 (Fla. 1991).
948

947

See, City of Hollywood v. Mulligan, 934 So. 2d 1238 (Fla. 2006).

164

which offense or attempted offense involves the transmission of body fluids from one person to another: section 794.011, relating to sexual battery;949 section 826.04, relating to incest;950 section 800.04, relating to lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age;951 sections 784.011, 784.07(2)(a), and 784.08(2)(d), relating to assault;952 sections 784.021, 784.07(2)(c), and 784.08(2)(b), relating to aggravated assault;953 sections 784.03, 784.07(2)(b), and 784.08(2)(c), relating to battery;954 sections 784.045, 784.07(2)(d), and 784.08(2)(a), relating to aggravated battery;955 section 827.03(2)(c), relating to child abuse;956 section 827.03(2)(a), relating to aggravated child abuse;957 section 825.102(1), relating to abuse of an elderly person or disabled adult;958 section 825.102(2), relating to aggravated abuse of an elderly person or disabled adult;959 section 827.071, relating to sexual performance by person less than 18 years of age;960 sections 796.03, 796.07, and 796.08, relating to prostitution;961 or section 381.0041(11)(b), relating to donation of blood, plasma, organs, skin, or other human tissue,962 the court is required to order the offender to undergo HIV testing, to be performed under the direction of the Department of Health in accordance with section 381.004, unless the defendant has undergone HIV testing voluntarily or pursuant to procedures established in section 381.004(3)(h)6. or section 951.27, or any other applicable law or rule providing for HIV testing of criminal offenders or inmates, subsequent to her or his arrest for an offense enumerated in section 775.0877(1)(a) to (n) for which she or he was convicted or to which she or he pled nolo contendere or guilty. The results of an HIV test performed on a defendant pursuant to section 775.0877(1) are not admissible in any criminal proceeding arising

949

775.0877(1)(a), Fla. Stat. 775.0877(1)(b), Fla. Stat. 775.0877(1)(c), Fla. Stat. 775.0877(1)(d), Fla. Stat. 775.0877(1)(e), Fla. Stat. 775.0877(1)(f), Fla. Stat. 775.0877(1)(g), Fla. Stat. 775.0877(1)(h), Fla. Stat. 775.0877(1)(i), Fla. Stat. 775.0877(1)(j), Fla. Stat. 775.0877(1)(k), Fla. Stat. 775.0877(1)(1), Fla. Stat. 775.0877(1)(m), Fla. Stat. 775.0877(1)(n), Fla. Stat.

950

951

952

953

954

955

956

957

958

959

960

961

962

165

out of the alleged offense.963 The results of the HIV test must be disclosed under the direction of the Department of Health, to the defendant who has been convicted of or pled nolo contendere or guilty to an offense specified in section 775.0877(1), the public health agency of the county in which the conviction occurred and, if different, the county of residence of the defendant, and, upon request pursuant to section 960.003, to the victim or the victims legal guardian, or the parent or legal guardian of the victim if the victim is a minor.964 3.7. Castration When a defendant has been convicted of sexual battery as described in section 794.011 the sentencing court may in its discretion sentence the defendant to be treated with medroxyprogesterone acetate (MPA), more commonly known as chemical castration, according to a schedule of administration monitored by the Department of Corrections.965 When the defendant has been convicted of sexual battery as described in section 794.011 and has a prior conviction of sexual battery under section 794.011, the sentencing court must sentence the defendant to such treatment with MPA.966 A prior conviction in this sense means a conviction for which sentence was imposed separately prior to the imposition of the sentence for the current offense and which was sentenced separately from any other conviction that is to be counted as a prior conviction under section 794.0235.967 If the court sentences a defendant to be treated with MPA, the penalty may not be imposed in lieu of, or reduce, any other penalty prescribed under section 794.011. However, in lieu of treatment with MPA, the court may order the defendant to undergo physical castration upon written motion by the defendant providing the defendant's intelligent, knowing, and voluntary consent to physical castration as an alternative penalty.968 An order of the court sentencing a defendant to MPA treatment under section 794.0235(1) shall be contingent upon a determination by a court-appointed medical expert that the defendant is an appropriate candidate for treatment. There is a mandatory requirement that such determination be made not later than 60 days from the imposition of sentence.969 Notwithstanding the statutory maximum periods of incarceration as provided in section 775.082, an order of the court sentencing a defendant to MPA treatment must

963

775.0877(1), Fla. Stat. 775.0877(2), Fla. Stat. 794.0235(1)(a), Fla. Stat. 794.0235(1)(b), Fla. Stat. 794.0235(4), Fla. Stat. 794.0235(1), Fla. Stat.

964

965

966

967

968

Jackson v. State, 907 So. 2d 696 (Fla. 4th DCA 2005) (statutory directive that defendant receive medical examination within 60 days of imposition of his sentence for sexual offenses in order to determine his suitability for chemical castration, as prerequisite to imposition of sentence of MPA treatment, is mandatory rather than discretionary); 794.0235(2)(a), Fla. Stat.

969

166

specify the duration of treatment for a specific term of years, or in the discretion of the court, up to the life of the defendant.970 In all cases involving defendants sentenced to a period of incarceration, the administration of treatment with MPA is required to commence not later than one week prior to the defendants release from prison or other institution.971 The Department of Corrections is required to provide the services necessary to administer MPA treatment, but section 794.0235 does not require the continued administration of MPA treatment when it is not medically appropriate.972 If a defendant whom the court has sentenced to be treated with MPA fails or refuses to either appear as required by the Department of Corrections for purposes of administering the MPA or allow the administration of MPA, the defendant is guilty of a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.973 The Fourth District Court of Appeal has held that, as a matter of statutory construction, a sentence to administration of MPA under Sec. 794.0235 is not remedial treatment but does constitute punishment, and that where a defendants sentence includes the imposition to impose MPA injections but does not set a duration or provision for MPA after release from prison, and reserves ruling pending evaluation from a court-appointed expert, the subsequent imposition of a requirement for MPA injections for a set duration is an illegal increase in the defendants sentence and constitutes a violation of the constitutional prohibition against double jeopardy.974 3.8. Sexual offender/sexual predator sanctions Floridas laws regulating persons deemed to be sexual offenders and sexual predators are primarily registration and reporting statutes. Such statutes are regulatory in nature and do not constitute punishment subject to constitutional ex post facto challenges.975 Because a sexual offender or sexual predator designation is not a sentence or a punishment, it does not interfere with the power

794.0235(2)(a), Fla. Stat.; see, Houston v. State, 852 So. 2d 425, 428 (Fla. 5th DCA 2003) (requirements that trial court appoint a medical expert to opine on whether defendant is an appropriate candidate for chemical castration treatment, and that trial court specify in the sentence the duration of treatment, are mandatory, as to a sentence containing a chemical castration requirement).
971

970

794.0235(2)(b), Fla. Stat. 794.0235(3), Fla. Stat. 794.0235(5), Fla. Stat. Tran v. State, 965 So. 2d 226 (Fla. 4th DCA 2007).

972

973

974

See, Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 36 A.L.R.5th 711 (1995); State v. Ward, 123 Wash. 2d 488, 869 P.2d 1062 (1994); State v. Noble, 171 Ariz. 171, 829 P.2d 1217 (1992); People v. Adams, 144 Ill. 2d 381, 163 Ill. Dec. 483, 581 N.E.2d 637 (1991). Cf. Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994); and In re Reed, 33 Cal. 3d 914, 191 Cal. Rptr. 658, 663 P.2d 216 (1983) (overruled by, In re Alva, 33 Cal. 4th 254, 14 Cal. Rptr. 3d 811, 92 P.3d 311 (2004)).

975

167

of an appellate court to dispose of issues relating to the appellants conviction and sentence and so such designation may be entered after the defendant has filed a notice of appeal.976 3.8.1. Sexual offender The term sexual offender means a person who: 1. Has been convicted of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or similar offenses in another jurisdiction: Section 787.01, section 787.02, or section 787.025, where the victim is a minor and the defendant is not the victims parent or guardian; section 794.011, excluding section 794.011(10); section 794.05; section 796.03; section 796.035; section 800.04; section 810.145(8); section 825.1025; section 827.071; section 847.0133; section 847.0135, excluding section 847.0134(6); section 847.0137; section 847.0138; section 847.0145; section 985.701(1); or any similar offense committed in Florida which has been redesignated from a former statute number to one of those listed in section 943.0435(1)(a)1.;977 and has been released on or after October 1, 1997, from the sanction imposed for any conviction of an offense described in section 943.0435(1)(a)1.a. Note that the predicate offense must have a concomitant sexual component, and that the defendant may not be designated as a sexual offender where the crime is totally devoid of a sexual component. The State is not required to prove, however, that the listed crime has a sexual component; the burden is on the defendant to show that it does not.978 For purposes of section 943.0435(1)(a)1.a., a sanction imposed in Florida or in any other jurisdiction includes, but is not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility;979 or 2. Establishes or maintains a residence in Florida and who has not been designated as a sexual predator by a court of Florida but who has been designated as a sexual predator, as a sexually violent predator, or by another sexual offender designation in another state or jurisdiction and was, as a result of such designation, subjected to registration or community or public notification, or both, or would be if the person were a resident of that state or jurisdiction without regard to whether the person otherwise meets the criteria for registration as a sexual offender;980 or

976

Breitberg v. State, 14 So. 3d 1253 (Fla. 4th DCA 2009). 943.0435(1)(a)1.a, Fla. Stat. See Munroe v. State, 69 So. 3d 1044 (Fla. 2d DCA 2011); Raines v. State, 805 So. 2d 999 (Fla. 4th DCA

977

978

2001).
979

943.0435(1)(a)1.b, Fla. Stat. 943.0435(1)(a)2, Fla. Stat.

980

168

3. Establishes or maintains a residence in Florida who is in the custody or control of, or under the supervision of, any other state or jurisdiction as a result of a conviction for committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes or similar offense in another jurisdiction: Section 787.01, section 787.02, or section 787.025, where the victim is a minor and the defendant is not the victims parent or guardian; section 794.011, excluding section 794.011(10); section 794.05; section 796.03; section 796.035; section 800.04; section 810.145(8); section 825.1025; section 827.071; section 847.0133; section 847.0135, excluding section 847.0134(6); section 847.0137; section 847.0138; section 847.0145; section 985.701(1); or any similar offense committed in Florida which has been redesignated from a former statute number to one of those listed in section 943.0435(1)(a) 3.981 4. On or after July 1, 2007, has been adjudicated delinquent for committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes of Florida or similar offenses in another jurisdiction when the juvenile was 14 years of age or older at the time of the offense: Section 794.011, excluding section 794.011(10); section 800.04(4)(b) where the victim is under 12 years of age or where the court finds sexual activity by the use of force or coercion; section 800.04(5)(c)1. where the court finds molestation involving unclothed genitals; or section 800.04(5)(d) where the court finds the use of force or coercion and unclothed genitals. For all qualifying offenses listed in section 943.0435(1)(a)1.d., the court is required to make a written finding of the age of the offender at the time of the offense. For each violation of a qualifying offense listed in section 943.0435(1)(a)1.d., the court is required to make a written finding of the age of the victim at the time of the offense. For a violation of section 800.04(4), the court is additionally required to make a written finding indicating that the offense did or did not involve sexual activity and indicating that the offense did or did not involve force or coercion. For a violation of section 800.04(5), the court is additionally required to make a written finding that the offense did or did not involve unclothed genitals or genital area and that the offense did or did not involve the use of force or coercion.982 Released means release from lawful custody, and not release from actual custody. The statutory registration and reporting requirements of section 943.0435 do not apply to a defendant who is physically released from custody after the effective date of the statute under the terms of an illegal sentence which, when corrected, would have resulted in a release date prior to the statute's effective date.983 A sentence that was illegal at time of its imposition but which was subsequently corrected properly can, however, serve as basis for imposition of sex offender registration and reporting requirements where the defendant was actually released from custody after the registration and reporting statutes effective date, where the defendants release prior to the effective date of the

981

943.0435(1)(a)3, Fla. Stat. 943.0435(1)(a)1.d, Fla. Stat. See, Ellerby v. State, 5 So. 3d 795 (Fla. 2d DCA 2009).

982

983

169

registration and reporting statute could only have been accomplished through operation of administrative gain time.984 Convicted means that there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld, and includes an adjudication of delinquency of a juvenile as specified in section 943.0435. Conviction of a similar offense includes, but is not limited to, a conviction by a federal or military tribunal, including courts-martial conducted by the Armed Forces of the United States, and includes a conviction or entry of a plea of guilty or nolo contendere resulting in a sanction in any state of the United States or other jurisdiction. A sanction includes, but is not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility.985 A sexual offender is required to: 1. Report in person to the sheriffs office: (1) in the county in which the offender establishes or maintains a permanent, temporary, or transient residence within 48 hours after either establishing permanent, temporary, or transient residence in Florida or being released from the custody, control, or supervision of the Department of Corrections or from the custody of a private correctional facility; or (2) in the county where he or she was convicted within 48 hours after being convicted for a qualifying offense for registration under section 943.0435 if the offender is not in the custody or control of, or under the supervision of, the Department of Corrections, or is not in the custody of a private correctional facility. Any change in the information required to be provided pursuant to section 943.0435(2)(b), including but not limited to, any change in the sexual offenders permanent, temporary, or transient residence, name, any electronic mail address and any instant message name required to be provided pursuant to section 943.0435(4)(d), after the sexual offender reports in person at the sheriffs office, must be accomplished in the manner provided in section 943.0435(4), (7), and (8).986 2. Provide his or her name; date of birth; social security number; race; sex; height; weight; hair and eye color; tattoos or other identifying marks; fingerprints; photograph; occupation and place of employment; address of permanent or legal residence or address of any current temporary residence, within Florida and out of state, including a rural route address and a post office box; if no permanent or temporary address, any transient residence within the state, address, location or description, and dates of any current or known future temporary residence within the state or out of state; home telephone number and any cellular telephone number; any electronic mail address and any instant message name required to be provided pursuant to section 943.0435(4)(d); date and place

984

Newsom v. State, 869 So. 2d 619 (Fla. 5th DCA 2004). 943.0435(1)(b), Fla. Stat. 943.0435(2)(a), Fla. Stat.

985

986

170

of each conviction; and a brief description of the crime or crimes committed by the offender. A post office box can not be provided in lieu of a physical residential address.987 If the sexual offenders place of residence is a motor vehicle, trailer, mobile home, or manufactured home, as defined in chapter 320, the sexual offender must also provide to the department through the sheriffs office written notice of the vehicle identification number; the license tag number; the registration number; and a description, including color scheme, of the motor vehicle, trailer, mobile home, or manufactured home. If the sexual offenders place of residence is a vessel, live-aboard vessel, or houseboat, as defined in chapter 327, the sexual offender must also provide to the department written notice of the hull identification number; the manufacturers serial number; the name of the vessel, live-aboard vessel, or houseboat; the registration number; and a description, including color scheme, of the vessel, live-aboard vessel, or houseboat.988 If the sexual offender is enrolled, employed, or carrying on a vocation at an institution of higher education in Florida, the sexual offender must also provide to the department through the sheriff's office the name, address, and county of each institution, including each campus attended, and the sexual offenders enrollment or employment status. Each change in enrollment or employment status must be reported in person at an office of the department, or at the sheriffs office, within 48 hours after any change in status.989 Within 48 hours after the report required under section 943.0435(2), a sexual offender must report in person at a drivers license office of the Department of Highway Safety and Motor Vehicles, unless a drivers license or identification card was previously secured or updated under section 944.607.990 At the drivers license office the sexual offender is required to: 1. If otherwise qualified, secure a Florida drivers license, renew a Florida drivers license, or secure an identification card. The sexual offender must identify himself or herself as a sexual offender who is required to comply with this section and must provide proof that the sexual offender reported as required in section 943.0435(2). The sexual offender must provide any of the information specified in section 943.0435(2), if requested. The sexual offender must submit to the taking of a photograph for use in issuing a drivers license, renewed license, or identification card, and for use by the department in maintaining current records of sexual offenders.991

987

943.0435(2)(b), Fla. Stat. 943.0435(2)(b)1, Fla. Stat. 943.0435(2)(b)2, Fla. Stat. 943.0435(3), Fla. Stat. 943.0435(3)(a), Fla. Stat.

988

989

990

991

171

2. Pay the costs assessed by the Department of Highway Safety and Motor Vehicles for issuing or renewing a drivers license or identification card as required by section 943.0435.992 3. Provide, upon request, any additional information necessary to confirm the identity of the sexual offender, including a set of fingerprints.993 Each time a sexual offenders drivers license or identification card is subject to renewal, and, without regard to the status of the offender's driver's license or identification card, within 48 hours after any change in the offenders permanent, or temporary, or transient residence or change in the offender's name by reason of marriage or other legal process, the offender must report in person to a drivers license office, and shall be subject to the requirements specified in subsection section 943.0435(3).994 A sexual offender who vacates a permanent, temporary, or transient residence and fails to establish or maintain another permanent, temporary, or transient residence must, within 48 hours after vacating the permanent, temporary, or transient residence, report in person to the sheriffs office of the county in which he or she is located. The sexual offender must specify the date upon which he or she intends to or did vacate such residence. The sexual offender must provide or update all of the registration information required under section 943.0435(2)(b). The sexual offender must provide an address for the residence or other place that he or she is or will be located during the time in which he or she fails to establish or maintain a permanent, temporary, or transient residence.995 A sexual offender who remains at a permanent, temporary, or transient residence after reporting his or her intent to vacate such residence must, within 48 hours after the date upon which the offender indicated he or she would or did vacate such residence, report in person to the agency to which he or she reported pursuant to section 943.0435(4)(b) for the purpose of reporting his or her address at such residence.996 A sexual offender must register any electronic mail address or instant message name with the Florida Department of Law Enforcement before using such electronic mail address or instant message name. The department is required to establish an online system through which sexual offenders may securely access and update all electronic mail address and instant message name information.997

992

943.0435(3)(b), Fla. Stat. 943.0435(3)(c), Fla. Stat. 943.0435(4)(a), Fla. Stat. 943.0435(4)(b), Fla. Stat. 943.0435(4)(c), Fla. Stat. 943.0435(4)(d), Fla. Stat.

993

994

995

996

997

172

Section 943.0435 does not apply to a sexual offender who is also a sexual predator, as defined in section 775.21. A sexual predator must register as required under section 775.21.998 A sexual offender who intends to establish a permanent, temporary or transient residence in another state or jurisdiction other than the state of Florida must report in person to the sheriff of the county of current residence within 48 hours before the date he or she intends to leave this state to establish residence in another state or jurisdiction. The notification must include the address, municipality, county, and state of intended residence.999 A sexual offender who indicates his or her intent to establish a permanent, temporary, or transient residence in another state or jurisdiction other than the state of Florida and later decides to remain in this state must, within 48 hours after the date upon which the sexual offender indicated he or she would leave this state, report in person to the sheriff to which the sexual offender reported the intended change of permanent, temporary, or transient residence, of his or her intent to remain in this state.1000 Except as provided in section 943.04354, a sexual offender must maintain registration with the department for the duration of his or her life, unless the sexual offender has received a full pardon or has had a conviction set aside in a postconviction proceeding for any offense that meets the criteria for classifying the person as a sexual offender for purposes of registration.1001 However, a sexual offender who has been lawfully released from confinement, supervision, or sanction, whichever is later, for at least 25 years and has not been arrested for any felony or misdemeanor offenses since release, provided that the sexual offenders requirement to register was not based on an adult conviction for: a violation of section 787.01 or section 787.02; a violation of section 794.011, excluding section 794.011(10); a violation of section 800.04(4)(b) where the court finds that the offense involved a victim under 12 years of age or sexual activity by the use of force or coercion; a violation of section 800.04(5)(b); a violation of section 800.04(5)(c)2. where the court finds that the offense involved unclothed genitals or genital area; any attempt or conspiracy to commit such offenses; or for a violation of similar law of another jurisdiction, may petition the criminal division of the circuit court of the circuit in which the sexual offender resides for the purpose of removing the requirement for registration as a sexual offender.1002 The court may grant or deny relief if the offender demonstrates to the court that he or she has not been arrested for any crime since release; the requested relief complies with the provisions of the federal Adam Walsh Child Protection and Safety Act, and any other federal standards applicable to the removal of registration requirements for a sexual offender or required to be met as a condition

998

943.0435(5), Fla. Stat. 943.0435(7), Fla. Stat. 943.0435(8), Fla. Stat. 943.0435(11), Fla. Stat. 943.0435(11)(a)1., Fla. Stat.

999

1000

1001

1002

173

for the receipt of federal funds by the state; and the court is otherwise satisfied that the offender is not a current or potential threat to public safety. The state attorney in the circuit in which the petition is filed must be given notice of the petition at least 3 weeks before the hearing on the matter. The state attorney may present evidence in opposition to the requested relief or may otherwise demonstrate the reasons why the petition should be denied. If the court denies the petition, the court may set a future date at which the sexual offender may again petition the court for relief, subject to the standards for relief provided in this subsection. The department must remove an offender from classification as a sexual offender for purposes of registration if the offender provides to the department a certified copy of the courts written findings or order that indicates that the offender is no longer required to comply with the requirements for registration as a sexual offender.1003 A sexual offender must maintain registration with the department for the duration of his or her life until the person provides the department with an order issued by the court that designated the person as a sexual predator, as a sexually violent predator, or by another sexual offender designation in the state or jurisdiction in which the order was issued which states that such designation has been removed or demonstrates to the department that such designation, if not imposed by a court, has been removed by operation of law or court order in the state or jurisdiction in which the designation was made, and provided such person no longer meets the criteria for registration as a sexual offender under the laws of this state.1004 A sexual offender must report in person each year during the month of the sexual offenders birthday and during the sixth month following the sexual offender's birth month to the sheriff's office in the county in which he or she resides or is otherwise located to reregister. However, a sexual offender who is required to reregister as a result of a conviction for: section 787.01 or section 787.02 where the victim is a minor and the offender is not the victims parent or guardian; section 794.011, excluding section 794.011(10); section 800.04(4)(b) where the court finds the offense involved a victim under 12 years of age or sexual activity by the use of force or coercion; section 800.04(5)(b); section 800.04(5)(c)1. where the court finds molestation involving unclothed genitals or genital area; section 800.04(5)c.2. where the court finds molestation involving unclothed genitals or genital area; section 800.04(5)(d) where the court finds the use of force or coercion and unclothed genitals or genital area; any attempt or conspiracy to commit such offense; or a violation of a similar law of another jurisdiction, must reregister each year during the month of the sexual offender's birthday and every third month thereafter.1005 The sheriffs office may determine the appropriate times and days for reporting by the sexual offender, which shall be consistent with the reporting requirements of section 943.0435(14). Reregistration must include any changes to the following information:1006

1003

943.0435(11), Fla. Stat. 943.0435(11)(c), Fla. Stat. 943.0435(14)(b), Fla. Stat. 943.0435(14), Fla. Stat.

1004

1005

1006

174

1. Name; social security number; age; race; sex; date of birth; height; weight; hair and eye color; address of any permanent residence and address of any current temporary residence, within the state or out of state, including a rural route address and a post office box; if no permanent or temporary address, any transient residence within the state, address, location or description, and dates of any current or known future temporary residence within the state or out of state; any electronic mail address and any instant message name required to be provided pursuant to section 943.0435(4)(d); home telephone number and any cellular telephone number; date and place of any employment; vehicle make, model, color, and license tag number; fingerprints; and photograph. A post office box can not be provided in lieu of a physical residential address.1007 2. If the sexual offender is enrolled, employed, or carrying on a vocation at an institution of higher education in this state, the sexual offender must also provide to the department the name, address, and county of each institution, including each campus attended, and the sexual offenders enrollment or employment status.1008 3. If the sexual offenders place of residence is a motor vehicle, trailer, mobile home, or manufactured home, as defined in chapter 320, the sexual offender must also provide the vehicle identification number; the license tag number; the registration number; and a description, including color scheme, of the motor vehicle, trailer, mobile home, or manufactured home. If the sexual offenders place of residence is a vessel, live-aboard vessel, or houseboat, as defined in chapter 327, the sexual offender shall also provide the hull identification number; the manufacturers serial number; the name of the vessel, live-aboard vessel, or houseboat; the registration number; and a description, including color scheme, of the vessel, live-aboard vessel or houseboat.1009 A sexual offender who is under the supervision of the Department of Corrections but is not incarcerated must register with the Department of Corrections within three business days after the sentencing for a registrable offense and otherwise provide information required by section 944.607(4).1010 If the sexual offender is in the custody of a local jail, the custodian of the local jail is required to register the offender and forward the information to the Florida Department of Law Enforcement.1011 If the sexual offender is under federal supervision, the federal agency responsible for supervising the sexual offender may forward to the Department of Law Enforcement any information regarding the sexual offender which is consistent with the information provided by the department under section 944.607, and may indicate whether use of the information is restricted to

1007

943.0435(14)(a)1, Fla. Stat. 943.0435(14)(a)2, 944.607(4)(b), Fla. Stat. 943.0435(14)(a)3, 944.607(13)(c)3, Fla. Stat. 944.607(4), Fla. Stat. 944.607(7), Fla. Stat.

1008

1009

1010

1011

175

law enforcement purposes only or may be used by the Department of Law Enforcement for purposes of public notification.1012 A sexual offender who is under the supervision of the Department of Corrections but who is not incarcerated must, in addition to the registration requirements provided in section 944.607(4), register in the manner provided in section 943.0435(3), (4), and (5), unless the sexual offender is a sexual predator, in which case he or she must register as required under section 775.21. A sexual offender who fails to comply with the requirements of section 943.0435 is subject to the penalties provided in section 943.0435(9).1013 Notwithstanding the rigorous reporting requirements imposed on the sexual offender, section 943.0435(12) provides that sexual offender designation is not a sentence or a punishment but is simply the status of the offender. Although a defendants later failure to register as a sexual offender constitutes a third degree felony,1014 such consequences flow from a violation of that statute, not the one for which he entered a plea. The fact remains that the defendant faces no further punishment for this crime simply because the law imposes other duties as a result.1015 The statutory sexual offender registration requirement is a collateral consequence of the plea and therefore failure to inform the defendant of that requirement before the defendant entered the plea does not render that plea involuntary.1016 Note that the requirement of section 943.0435 to report in person to a drivers license office within 48 hours after change of residence has been construed under the rule of lenity to require the sex offender to so report within two business days.1017 3.8.2. Sexual predator For a current offense committed on or after October 1, 1993, upon conviction, a defendant must be designated as a sexual predator under section 775.21(5), and subject to registration under section 775.21(6) and community and public notification under section 775.21(7) if:

1012

944.607(8), Fla. Stat. 944.607(9), Fla. Stat. See, 943.0435(9), Fla. Stat.

1013

1014

State v. Partlow, 840 So. 2d 1040 (Fla. 2003). See, Freeland v. State, 832 So. 2d 923 (Fla. 1st DCA 2002) (the registration and reporting requirements of section 943.0435 are regulatory and procedural in nature and do not violate the ex post facto clause); Simmons v. State, 753 So. 2d 762 (Fla. 4th DCA 2000) (Sec. 943.0435 does not violate ex post facto clause as it neither alters the definition of criminal conduct nor constitutes punishment).
1016

1015

State v. Partlow, 840 So. 2d 1040 (Fla. 2003). Griffin v. State, 969 So. 2d 1161 (Fla. 1st DCA 2007).

1017

176

1. The felony is: a. A capital, life, or first-degree felony violation, or any attempt thereof, of section 787.01 or section 787.02, where the victim is a minor and the defendant is not the victims parent or guardian, or section 794.011, section 800.04, or section 847.0145, or a violation of a similar law of another jurisdiction;1018 or b. Any felony violation, or any attempt thereof, of section 787.01, section 787.02, or section 787.025, where the victim is a minor and the defendant is not the victims parent or guardian; section 794.011, excluding section 794.011(10); section 794.05; section 787.06(3)(b), (d), (f), (g), or (h); section 796.03; section 796.035; section 800.04; section 810.145(8)(b); section 825.1025(2)(b); section 827.071; section 847.0145; or section 985.701(1); or a violation of a similar law of another jurisdiction, and the offender has previously been convicted of or found to have committed, or has pled nolo contendere or guilty to, regardless of adjudication, any violation of section 787.01, section 787.02, or section 787.025, where the victim is a minor and the defendant is not the victims parent or legal guardian; section 787.06(3)(b), (d), (f), (g), or (h); section 794.011, excluding section 794.011(10); section 794.05, section 796.03; section 796.035; section 800.04; section 825.1025; section 827.071; section 847.0133; section 847.0135, excluding section 847.0135(6); section 847.0145; or section 985.701(1); or a violation of a similar law of another jurisdiction;1019 2. The defendant has not received a pardon for any felony or similar law of another jurisdiction that is necessary for the operation of section 775.21(4);1020 and 3. A conviction of a felony or similar law of another jurisdiction necessary to the operation of section 775.21(4) has not been set aside in any postconviction proceeding.1021 In order to be counted as a prior felony for purposes of section 775.21(4)(a), the felony must have resulted in a conviction sentenced separately, or an adjudication of delinquency entered separately, prior to the current offense and sentenced or adjudicated separately from any other felony conviction that is to be counted as a prior felony regardless of date of offense of the prior felony.1022 If a defendant has been registered as a sexual predator by the Department of Corrections, the Florida Department of Law Enforcement (FDLE), or any other law enforcement agency and if the

1018

775.21(4)(a)1.a, Fla. Stat. 775.21(4)(a)1.b, Fla. Stat. 775.21(4)(a)2, Fla. Stat. 775.21(4)(a)3, Fla. Stat. 775.21(4)(b), Fla. Stat.

1019

1020

1021

1022

177

court did not, for whatever reason, make a written finding at the time of sentencing that the defendant was a sexual predator, or the defendant was administratively registered as a sexual predator because the Department of Corrections, FDLE, or any other law enforcement agency obtained information that indicated that the defendant met the criteria for designation as a sexual predator based on a violation of a similar law in another jurisdiction, FDLE must remove that defendant from the FDLE list of sexual predators and, for a defendant described under section 775.21(4)(a)1., must notify the state attorney who prosecuted the offense that met the criteria for administrative designation as a sexual predator, and, for a defendant described under section 775.21(4)(c), must notify the state attorney of the county where the defendant establishes or maintains a permanent, temporary, or transient residence. The state attorney must bring the matter to the courts attention in order to establish that the defendant meets the criteria for designation as a sexual predator. If the court makes a written finding that the defendant is a sexual predator, the defendant must be designated as a sexual predator, must register or be registered as a sexual predator with FDLE as provided in section 775.21(6), and is subject to the community and public notification as provided in section 775.21(7). If the court does not make a written finding that the defendant is a sexual predator, the defendant may not be designated as a sexual predator with respect to that offense and is not required to register or be registered as a sexual predator with FDLE.1023 A defendant who has been determined to be a sexually violent predator pursuant to a civil commitment proceeding under chapter 394 must be designated as a sexual predator under section 775.21(5) and subject to registration under section 775.21(6) and community and public notification under section 775.21(7).1024 A defendant is designated as a sexual predator as follows: 1. A defendant who meets the sexual predator criteria described in section 775.21(4)(d) is a sexual predator, and the court must make a written finding at the time such person is determined to be a sexually violent predator under chapter 394 that such person meets the criteria for designation as a sexual predator for purposes of section 775.21. The clerk is required to transmit a copy of the order containing the written finding to FDLE within 48 hours after the entry of the order;1025 2. A defendant who meets the sexual predator criteria described in 775.21(4)(a) who is before the court for sentencing for a current offense committed on or after October 1, 1993, is a sexual predator, and the sentencing court must make a written finding at the time of sentencing that the defendant is a sexual predator, and the clerk of the court is required to transmit a copy of the order containing the written finding to the department within 48 hours after the entry of the order;1026 or
1023

775.21(4)(c), Fla. Stat. 775.21(4)(d), Fla. Stat. 775.21(5)(a)1, Fla. Stat. 775.21(5)(a)2, Fla. Stat.

1024

1025

1026

178

3. If the Department of Corrections, FDLE, or any other law enforcement agency obtains information which indicates that a person who establishes or maintains a permanent, temporary, or transient residence in this state meets the sexual predator criteria described in section 775.21(4)(a) or section 775.21(4)(d) because the person was civilly committed or committed a similar violation in another jurisdiction on or after October 1, 1993, the Department of Corrections, FDLE, or the law enforcement agency is required to notify the state attorney of the county where the person establishes or maintains a permanent, temporary, or transient residence of the persons presence in the community. The state attorney must file a petition with the criminal division of the circuit court for the purpose of holding a hearing to determine if the persons criminal record or record of civil commitment from another jurisdiction meets the sexual predator criteria. If the court finds that the person meets the sexual predator criteria because the person has violated a similar law or similar laws in another jurisdiction, the court must make a written finding that the person is a sexual predator.1027 When the court makes a written finding that a person is a sexual predator, the court must inform the sexual predator of the registration and community and public notification requirements described in section 775.21. Within 48 hours after the court designating an person as a sexual predator, the clerk of the circuit court is required to transmit a copy of the courts written sexual predator finding to FDLE. If the person is sentenced to a term of imprisonment or supervision, a copy of the court's written sexual predator finding must be submitted to the Department of Corrections.1028 If a sexual predator is not sentenced to a term of imprisonment, the clerk of the court must ensure that the sexual predators fingerprints are taken and forwarded to FDLE within 48 hours after the court renders its written sexual predator finding. The fingerprints must be clearly marked, Sexual Predator Registration. The clerk of the court that convicts and sentences the sexual predator for the offense or offenses described in section 775.21(4) must forward to FDLE and to the Department of Corrections a certified copy of any order entered by the court imposing any special condition or restriction on the sexual predator that restricts or prohibits access to the victim, if the victim is a minor, or to other minors.1029 If the Department of Corrections, FDLE, or any other law enforcement agency obtains information which indicates that a defendant meets the sexual predator criteria but the court did not make a written finding that the defendant is a sexual predator as required in section 775.21(5)(a), the Department of Corrections, FDLE, or the law enforcement agency is required to notify the state attorney who prosecuted the offense for offenders described in section 775.21(5)(a)1., or the state attorney of the county where the defendant establishes or maintains a residence upon first entering the state for persons described in section 775.21(5)(a)3. The state attorney must bring the matter to
1027

775.21(5)(a)3, Fla. Stat. 775.21(5)(a), Fla. Stat. 775.21(5)(b), Fla. Stat.

1028

1029

179

the courts attention in order to establish that the defendant meets the sexual predator criteria. If the state attorney fails to establish that a defendant meets the sexual predator criteria and the court does not make a written finding that a defendant is a sexual predator, the defendant is not required to register with FDLE as a sexual predator. The Department of Corrections, FDLE, or any other law enforcement agency can not administratively designate a person as a sexual predator without a written finding from the court that the person is a sexual predator.1030 A person who establishes or maintains a residence in this state and who has not been designated as a sexual predator by a court of this state but who has been designated as a sexual predator, as a sexually violent predator, or by another sexual offender designation in another state or jurisdiction and was, as a result of such designation, subjected to registration or community or public notification, or both, or would be if the person was a resident of that state or jurisdiction, without regard to whether the person otherwise meets the criteria for registration as a sexual offender is required to register in the manner provided in section 943.0435 or section 944.607 and is subject to community and public notification as provided in section 943.0435 or section 944.607. A person who meets the criteria of section 775.21 is subject to the requirements and penalty provisions of section 943.0435 or section 944.607 until the person provides FDLE with an order issued by the court that designated the person as a sexual predator, as a sexually violent predator, or by another sexual offender designation in the state or jurisdiction in which the order was issued which states that such designation has been removed or demonstrates to FDLE that such designation, if not imposed by a court, has been removed by operation of law or court order in the state or jurisdiction in which the designation was made, and provided such person no longer meets the criteria for registration as a sexual offender under the laws of Florida.1031 A sexual predator must register with FDLE through the sheriffs office by providing the following information to the department: 1. Name; social security number; age; race; sex; date of birth; height; weight; hair and eye color; photograph; address of legal residence and address of any current temporary residence, within the state or out of state, including a rural route address and a post office box; if no permanent or temporary address, any transient residence within the state; address, location or description, and dates of any current or known future temporary residence within the state or out of state; any electronic mail address and any instant message name required to be provided pursuant to section 775.21(6)(g)4.; home telephone number and any cellular telephone number; date and place of any employment; date and place of each conviction; fingerprints; and a brief description of the crime or crimes committed by the offender. A post office box can not be provided in lieu of a physical residential address. If the sexual predators place of residence is a motor vehicle, trailer, mobile home, or manufactured home, as defined in chapter 320, the sexual predator must also provide to FDLE written notice of the vehicle identification number; the license tag number; the registration

1030

775.21(5)(c), Fla. Stat. 775.21(5)(d), Fla. Stat.

1031

180

number; and a description, including color scheme, of the motor vehicle, trailer, mobile home, or manufactured home. If a sexual predators place of residence is a vessel, live-aboard vessel, or houseboat, as defined in chapter 327, the sexual predator must also provide to FDLE written notice of the hull identification number; the manufacturers serial number; the name of the vessel, live-aboard vessel, or houseboat; the registration number; and a description, including color scheme, of the vessel, live-aboard vessel, or houseboat. If the sexual predator is enrolled, employed, or carrying on a vocation at an institution of higher education in this state, the sexual predator must also provide to the department the name, address, and county of each institution, including each campus attended, and the sexual predators enrollment or employment status. Each change in enrollment or employment status shall be reported in person at the sheriffs office, or the Department of Corrections if the sexual predator is in the custody or control of or under the supervision of the Department of Corrections, within 48 hours after any change in status.1032 2. Any other information determined necessary by FDLE, including criminal and corrections records; nonprivileged personnel and treatment records; and evidentiary genetic markers when available.1033 If the sexual predator is in the custody or control of, or under the supervision of, the Department of Corrections, or is in the custody of a private correctional facility, the sexual predator must register with the Department of Corrections.1034 A sexual predator who is under the supervision of the Department of Corrections but who is not incarcerated must register with the Department of Corrections within three business days after the court finds the offender to be a sexual predator.1035 If the sexual predator is in the custody of a local jail, the custodian of the local jail must register the sexual predator within three business days after intake of the sexual predator for any reason and upon release and forward the registration information to FDLE. The custodian of the local jail must also take a digitized photograph of the sexual predator while the sexual predator remains in custody and must provide the digitized photograph FDLE. The custodian must also notify the department if the sexual predator escapes from custody or dies.1036 If the sexual predator is under federal supervision, the federal agency responsible for supervising the sexual predator may forward to FDLE any information regarding the sexual predator which is consistent with the information provided by the Department of Corrections under section 775.21, and may indicate whether use of the information is restricted to law enforcement purposes only or may be used by FDLE for purposes of public notification.1037
1032

775.21(6)(a)1, Fla. Stat. 775.21(6)(a)2, Fla. Stat. 775.21(6)(b), Fla. Stat. 775.21(6)(b), Fla. Stat. 775.21(6)(c), Fla. Stat. 775.21(6)(d), Fla. Stat.

1033

1034

1035

1036

1037

181

If the sexual predator is not in the custody or control of, or under the supervision of, the Department of Corrections, or is not in the custody of a private correctional facility, the sexual predator must register in person: (a) a the sheriffs office in the county where he or she establishes or maintains a residence within 48 hours after establishing or maintaining a residence in Florida; and (b) at the sheriff's office in the county where he or she was designated a sexual predator by the court within 48 hours after such finding is made. Any change in the sexual predators permanent or temporary residence name, or any electronic mail address and any instant message name required to be provided pursuant to section 775.21(6)(g)4., after the sexual predator registers in person at the sheriffs office, must be accomplished in the manner provided in section 775.21(6)(g), (i), and (j).1038 Within 48 hours after the registration required under section 775.21(6)(a) or (e), a sexual predator who is not incarcerated and who resides in the community, including a sexual predator under the supervision of the Department of Corrections, must register in person at a drivers license office of the Department of Highway Safety and Motor Vehicles and must present proof of registration. At the drivers license office the sexual predator must: 1. If otherwise qualified, secure a Florida drivers license, renew a Florida drivers license, or secure an identification card. The sexual predator must identify himself or herself as a sexual predator who is required to comply with this section, provide his or her place of permanent, temporary, or transient residence, including a rural route address and a post office box, and submit to the taking of a photograph for use in issuing a driver's license, renewed license, or identification card, and for use by FDLE in maintaining current records of sexual predators. A post office box can not be provided in lieu of a physical residential address. If the sexual predators place of residence is a motor vehicle, trailer, mobile home, or manufactured home, as defined in chapter 320, the sexual predator must also provide to the Department of Highway Safety and Motor Vehicles the vehicle identification number; the license tag number; the registration number; and a description, including color scheme, of the motor vehicle, trailer, mobile home, or manufactured home. If a sexual predators place of residence is a vessel, live-aboard vessel, or houseboat, as defined in chapter 327, the sexual predator must also provide to the Department of Highway Safety and Motor Vehicles the hull identification number; the manufacturers serial number; the name of the vessel, live-aboard vessel, or houseboat; the registration number; and a description, including color scheme, of the vessel, live-aboard vessel, or houseboat.1039 2. Pay the costs assessed by the Department of Highway Safety and Motor Vehicles for issuing or renewing a drivers license or identification card as required by section 775.21.1040

1038

775.21(6)(e), Fla. Stat. 775.21(6)(f)1, Fla. Stat. 775.21(6)(f)2, Fla. Stat.

1039

1040

182

3. Provide, upon request, any additional information necessary to confirm the identity of the sexual predator, including a set of fingerprints.1041 Each time a sexual predators drivers license or identification card is subject to renewal, and, without regard to the status of the predator's driver's license or identification card, within 48 hours after any change of the predator's residence or change in the predator's name by reason of marriage or other legal process, the predator must report in person to a drivers license office and is subject to the requirements specified in section 775.21(6)(f).1042 A sexual predator who vacates a permanent, temporary, or transient residence and fails to establish or maintain another permanent, temporary, or transient residence must, within 48 hours after vacating the permanent, temporary, or transient residence, report in person to the sheriffs office of the county in which he or she is located. The sexual predator must specify the date upon which he or she intends to or did vacate such residence. The sexual predator must provide or update all of the registration information required under section 775.21(6)(a). The sexual predator must provide an address for the residence or other place that he or she is or will be located during the time in which he or she fails to establish or maintain a permanent, temporary, or transient residence.1043 A sexual predator who remains at a permanent, temporary, or transient residence after reporting his or her intent to vacate such residence must, within 48 hours after the date upon which the predator indicated he or she would or did vacate such residence, report in person to the sheriffs office to which he or she reported pursuant to section 775.21(6)(g)2. for the purpose of reporting his or her address at such residence. When the sheriff receives the report, the sheriff must promptly convey the information to FDLE.1044 A sexual predator must register any electronic mail address or instant message name on or after October 1, 2007. The Florida Department of Law Enforcement is required to establish an online system through which sexual predators may securely access and update all electronic mail address and instant message name information.1045 A sexual predator who intends to establish a permanent, temporary, or transient residence in another state or jurisdiction other than the state of Florida must report in person to the sheriff of the county of current residence within 48 hours before the date he or she intends to leave Florida to

1041

775.21(6)(f)3, Fla. Stat. 775.21(6)(g)1, Fla. Stat. 775.21(6)(g)2, Fla. Stat. 775.21(6)(g)3, Fla. Stat. 775.21(6)(g)4, Fla. Stat.

1042

1043

1044

1045

183

establish residence in another state or jurisdiction. The sexual predator must provide to the sheriff the address, municipality, county, and state of intended residence.1046 A sexual predator who indicates his or her intent to establish a permanent, temporary, or transient residence in another state or jurisdiction other than the state of Florida and later decides to remain in Florida must, within 48 hours after the date upon which the sexual predator indicated he or she would leave Florida, report in person to the sheriff to which the sexual predator reported the intended change of residence, and report his or her intent to remain in Florida.1047 A sexual predator must maintain registration with FDLE for the duration of his or her life, unless the sexual predator has received a full pardon or has had a conviction set aside in a postconviction proceeding for any offense that met the criteria for the sexual predator designation.1048 Law enforcement agencies must inform members of the community and the public of a sexual predators presence. Upon notification of the presence of a sexual predator, the sheriff of the county or the chief of police of the municipality where the sexual predator establishes or maintains a permanent or temporary residence must notify members of the community and the public of the presence of the sexual predator in a manner deemed appropriate by the sheriff or the chief of police. Within 48 hours after receiving notification of the presence of a sexual predator, the sheriff of the county or the chief of police of the municipality where the sexual predator temporarily or permanently resides must notify each licensed child care facility, elementary school, middle school, and high school within a 1mile radius of the temporary or permanent residence of the sexual predator of the presence of the sexual predator. Information provided to members of the community and the public regarding a sexual predator must include: 1. The name of the sexual predator; 2. A description of the sexual predator, including a photograph; 3. The sexual predators current permanent, temporary, and transient addresses, and descriptions of registered locations that have no specific street address, including the name of the county or municipality if known; 4. The circumstances of the sexual predators offense or offenses; and

1046

775.21(6)(i), Fla. Stat. 775.21(6)(j), Fla. Stat. 775.21(6)(l), Fla. Stat.

1047

1048

184

5. Whether the victim of the sexual predators offense or offenses was, at the time of the offense, a minor or an adult.1049 A sexual predator must report in person each year during the month of the sexual predator's birthday and during every third month thereafter to the sheriffs office in the county in which he or she resides or is otherwise located to reregister. The sheriffs office may determine the appropriate times and days for reporting by the sexual predator, which shall be consistent with the reporting requirements of section 775.21(8)(a).1050 Reregistration must include any changes to the following information: 1. Name; social security number; age; race; sex; date of birth; height; weight; hair and eye color; address of any permanent residence and address of any current temporary residence, within the state or out of state, including a rural route address and a post office box; if no permanent or temporary address, any transient residence within the state; address, location or description, and dates of any current or known future temporary residence within the state or out of state; any electronic mail address any any instant message name required to be provided pursuant to section 775.21(6)(g)4.; home telephone number and any cellular telephone number; date and place of any employment; vehicle make, model, color, and license tag number; fingerprints; and photograph. A post office box can not be provided in lieu of a physical residential address.1051 2. If the sexual predator is enrolled, employed, or carrying on a vocation at an institution of higher education in Florida, the sexual predator must also provide to FDLE the name, address, and county of each institution, including each campus attended, and the sexual predators enrollment or employment status.1052 3. If the sexual predators place of residence is a motor vehicle, trailer, mobile home, or manufactured home, as defined in chapter 320, the sexual predator must also provide the vehicle identification number; the license tag number; the registration number; and a description, including color scheme, of the motor vehicle, trailer, mobile home, or manufactured home. If the sexual predators place of residence is a vessel, live-aboard vessel, or houseboat, as defined in chapter 327, the sexual predator must also provide the hull identification number; the manufacturers serial number; the name of the vessel, live-aboard vessel, or houseboat; the registration number; and a description, including color scheme, of the vessel, live-aboard vessel, or houseboat.1053

1049

775.21(7)(a), Fla. Stat. 775.21(8)(a), Fla. Stat. 775.21(8)(a)1, Fla. Stat. 775.21(8)(a)2, Fla. Stat. 775.21(8)(a)3, Fla. Stat.

1050

1051

1052

1053

185

Designation as a sexual predator under the Sexual Predator Act,1054 is also not considered a punishment in the constitutional sense.1055 The registration and reporting requirements of the Sexual Predator Act are regulatory and procedural in nature and so a defendant challenging his or her sexual predator designation must seek relief in a separate civil suit for injunctive relief, and not in a postconviction motion under Fla. R. Crim. P. 3.800(a).1056 Section 775.21 does not authorize imposition of a sexual predator designation on a defendant based on a predicate offense that did not qualify the defendant for sexual predator status at the time of sentencing.1057 The Sexual Predator Act does not apply to juveniles charged as adults but adjudicated delinquent as they are not criminally convicted as required by the Sexual Predator Act.1058 However, a youthful offender sentence is an adultnot a juvenilesentence, which allows application of the Act.1059 A no contest plea where adjudication is withheld is specifically included in the Sexual Predator Acts definition of conviction.1060 The Sexual Predator Act is mandatory and affords no discretion to the trial judge to designate an individual a sexual predator if the statutory criteria are established.1061 A court may not enter an order approving a plea agreement that exempts a person who meets the criteria for designation as a sexual predator.1062 Note, however, that the rule of lenity precludes the sentencing court from imposing the sexual predator designation on a defendant when

1054

775.21, Fla. Stat.

775.21(3)(d) (The designation of a person as a sexual predator is neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes.); Fletcher v. State, 699 So. 2d 346 (Fla. 5th DCA 1997) (holding that section 775.21 violates neither the ex post facto clause nor Rule 3.800 because the designation sexual predator is neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes); see also Gonzalez v. State, 808 So. 2d 1265 (Fla. 3d DCA 2002) (holding that the reporting requirements as well as the notification requirements of Floridas Sexual Predator Act are regulatory and procedural in nature and do not violate the ex post facto clause); Rickman v. State, 714 So. 2d 538 (Fla. 5th DCA 1998) (holding that registration requirement of Florida's Sexual Predator Act is procedural and regulatory in nature and does not constitute punishment in violation of ex post facto clause).
1056

1055

Boyer v. State, 946 So. 2d 75 (Fla. 1st DCA 2006). Therrien v. State, 914 So. 2d 942 (Fla. 2005). State v. J.M., 824 So. 2d 105, 109 (Fla. 2002). Dejesus v. State, 862 So. 2d 847, 849 (Fla. 4th DCA 2003). 775.21(1)(c), Fla. Stat. (2002). Kelly v. State, 795 So. 2d 135, 137 (Fla. 5th DCA 2001). Miller v. State, 112 So. 3d 142 (Fla. 1st DCA 2013).

1057

1058

1059

1060

1061

1062

186

the record is unclear as to whether the qualifying offense or offenses occurred before or after the effective date of the Sexual Predators Act.1063 3.8.3. Mandatory designation on drivers license or identification card All licenses for the operation of motor vehicles or identification cards originally issued or reissued by the Department of Highway Safety and Motor Vehicles (DHSMV) to persons who are designated as sexual predators under section 775.21 or subject to registration as sexual offenders under section 943.0435 or section 944.607 are required to have on the front of the license or identification card the following: (1) For a person designated as a sexual predator under section 775.21 the marking 775.21, Fla. Stat.1064 (2) For a person designated as a sexual offender under section 943.0435 or section 944.607, the marking 943.0435.1065 Unless previously secured or updated, each sexual offender and sexual predator is required to report to the DHSMV during the month of his or her reregistration as required under section 775.21(8), section 943.0435(14), or section 944.607(13) in order to obtain an updated or renewed drivers license or identification card as required by section 322.141(3).1066 Note that it is unlawful for any person designated as a sexual predator or sexual offender to have in his or her possession a drivers license or identification card upon which the sexual predator or sexual offender markings required by section 322.141 are not displayed or have been altered.1067 3.8.4. Mandatory designation The requirements of sections 775.21 and 943.0435 are mandatory, substantive law that may not be abrogated by a court, even if pursuant to a plea bargain, unless the court that enters such an order determines that a person or entity is not operating in accordance with the laws governing sexual predators or sexual offenders, or that such laws or any part of such laws are unconstitutional or unconstitutionally applied.1068 If a person meets the criteria in chapter 775 for designation as a sexual predator or meets the criteria in section 943.0435, section 944.606, section 944.607, or any
1063

Dennis v. State, 32 So. 3d 79 (Fla. 2d DCA 2009). 322.141(3)(a), Fla. Stat. 322.141(3)(b), Fla. Stat. 322.141(4), Fla. Stat. 322.141(5)(c), Fla. Stat. 943.0436(1), Fla. Stat.

1064

1065

1066

1067

1068

187

other law for classification as a sexual offender, the court may not enter an order, for the purpose of approving a plea agreement or for any other reason, which: (a) exempts a person who meets the criteria for designation as a sexual predator or classification as a sexual offender from such designation or classification, or exempts such person from the requirements for registration or community and public notification imposed upon sexual predators and sexual offenders; (b) restricts the compiling, reporting, or release of public records information that relates to sexual predators or sexual offenders; or (c) prevents any person or entity from performing its duties or operating within its statutorily conferred authority as such duty or authority relates to sexual predators or sexual offenders.1069 A challenge to a designation as a sexual predator or sexual offender is permitted as part of a direct appeal of a criminal conviction and sentence through the appropriate post-conviction motion.1070 3.8.5. Removal of the requirement to register as a sexual offender or sexual predator in special circumstances For purposes of section 943.04354, a person must be considered for removal of the requirement to register as a sexual offender or sexual predator only if the person: (a) Was or will be convicted or adjudicated delinquent of a violation of section 794.011, section 827.071 or section 800.04, section 827.071 section 847.0135(5) or the person committed a violation of section 794.011, section 800.04, section 827.071 or section 847.0135(5) for which adjudication of guilt was or will be withheld, and the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of section 794.011, section 800.04, section 827.071 or section 847.0135(5);1071 (b) Is required to register as a sexual offender or sexual predator solely on the basis of this violation;1072 and (c) Is not more than four years older than the victim of this violation who was 14 years of age or older but not more than 17 years of age at the time the person committed this violation.1073

1069

943.0436(2), Fla. Stat.

King v. State, 911 So. 2d 229 (Fla. 2d DCA 2005); Cabrera v. State, 884 So. 2d 482 (Fla. 5th DCA 2004); Nicholson v. State, 846 So. 2d 1217 (Fla. 5th DCA 2003).
1071

1070

943.04354(1)(a), Fla. Stat. 943.04354(1)(b), Fla. Stat.

1072

943.04354(1)(c), Fla. Stat.; State v. Samuels, 76 So. 3d 1109 (Fla. 5th DCA 2011) (defendant, who was four years, one month, and 21 days older than victim was ineligible for relief); see State v. Marcel, 67 So. 3d 1223 (Fla. 3d DCA 2011) (defendant, who was four years, three months, and eight days older than victim, was more than four years older than victim and, thus, ineligible for relief).

1073

188

If a person meets the criteria in subsection 943.04354(1) and the violation of section 794.011, section 800.04, section 827.071 or section 847.0135(5) was committed on or after July 1, 2007, the person may move the court that will sentence or dispose of this violation to remove the requirement that the person register as a sexual offender or sexual predator. The person must allege in the motion that he or she meets the criteria in subsection 943.04354(1) and that removal of the registration requirement will not conflict with federal law. An example of where removal would conflict with federal law would be where the defendant's qualifying offense involved nonconsensual sexual activity with the victim, even if the lack of consent was not an element of the crime or crimes that qualified the defendant for the registry.1074 The state attorney must be given notice of the motion at least 21 days before the date of sentencing or disposition of this violation, and may present evidence in opposition to the requested relief or may otherwise demonstrate why the motion should be denied. At sentencing or disposition of this violation, the court is required to rule on this motion and, if the court determines the person meets the criteria in subsection 943.04354(1) and the removal of the registration requirement will not conflict with federal law, it may grant the motion and order the removal of the registration requirement. If the court denies the motion, the person is not authorized under section 943.04354 to petition for removal of the registration requirement.1075 A person may petition the court in which the sentence or disposition for the violation of section 794.011 or section 800.04 section 794.011, section 800.04, or section 827.071 occurred for removal of the requirement to register as a sexual offender or sexual predator. The person must allege in the petition that he or she meets the criteria in subsection 943.04354(1) and removal of the registration requirement will not conflict with federal law. The state attorney must be given notice of the petition at least 21 days before the hearing on the petition and, may present evidence in opposition to the requested relief or may otherwise demonstrate why the petition should be denied. The court is required to rule on the petition and, if the court determines the person meets the criteria in subsection 943.04354(1) and removal of the registration requirement will not conflict with federal law, it may grant the petition and order the removal of the registration requirement. If the court denies the petition, the person is not authorized under section 943.04354 to file any further petition for removal of the registration requirement.1076 Subsection 943.04354(3) applies to a person who: (1) Is not a person described in subsection 943.04354(2) because the violation of section 794.011 or section 800.04 was not committed on or after July 1, 2007; (2) Is subject to registration as a sexual offender or sexual predator for a violation of section 794.011 or section 800.04; and (3) Meets the criteria in subsection 943.04354(1).1077 A finding by the court that the defendants sexual conduct with the victim must be supported by competent, substantial evidence. A presentence investigation report, for example, is hearsay and
1074

See, Miller v. State, 17 So. 3d 778 (Fla. 5th DCA 2009). 943.04354(2), Fla. Stat. 943.04354(3)(b), Fla. Stat. 943.04354(3)(a), Fla. Stat.

1075

1076

1077

189

so without corroborating evidence cannot form the basis for a finding of a lack of consent. Where the record contains no dispute on the issue of consent, an evidentiary hearing is not required. Where there is a disputed issue of consent or other material fact the court is required to afford the defendant an evidentiary hearing.1078 If a person provides to the Department of Law Enforcement a certified copy of the courts order removing the requirement that the person register as a sexual offender or sexual predator for the violation of section 794.011, section 800.04, or section 847.0135(5), the registration requirement will not apply to the person and the department is required to remove all information about the person from the public registry of sexual offenders and sexual predators maintained by the department. However, the removal of this information from the public registry does not mean that the public is denied access to information about the person's criminal history or record that is otherwise available as a public record.1079 3.9. Involuntary civil commitment The deprivation of liberty which results from confinement under a states involuntary commitment law has been termed a massive curtailment of liberty.1080 Those whom the State seeks to involuntarily commit to a mental institution are entitled to the protection of our Constitutions, as are those incarcerated in our correctional institutions.1081 Accordingly, the subject of an involuntary civil commitment proceeding has the right to the effective assistance of counsel at all significant stages of the commitment process. By significant stages is meant all judicial proceedings and any other official proceeding at which a decision is, or can be, made which may result in a detrimental change to the conditions of the subjects liberty.1082 3.9.1. Baker Act commitment1083 The Florida Mental Health Act, commonly known as the Baker Act,1084 is Floridas original civil commitment law. Pursuant to section 394.463(1) of the Act, a person may be taken to a

1078

Matos v. State, 111 So. 3d 964 (Fla. 5th DCA 2013). 943.04354(4), Fla. Stat.

1079

Shuman v. State, 358 So. 2d 1333, 1335 (Fla. 1978) (quoting Humphrey v. Cady, 405 U.S. 504, 509, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972)).
1081

1080

Shuman v. State, 358 So. 2d 1333, 1335 (Fla. 1978). Pullen v. State, 802 So. 2d 1113 (Fla. 2001).

1082

See, 2014 Baker Act Handbook and User Reference Guide, Florida Department of Children and Families, found at http://bakeract.fmhi.usf.edu/document/2014BakerActManual.pdf.
1084

1083

394.451 to 394.4789, Fla. Stat.

190

receiving facility for involuntary examination if there is reason to believe that the person has a mental illness and, because of his or her mental illness, (1) the person has either refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination or the person is unable to determine for himself or herself whether examination is necessary; and (2) without care or treatment, the person is likely to suffer from neglect or refuse to care for himself or herself; that such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services; or there is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior. Section 394.463(2) thereafter explains the detailed procedures for the conduct of an involuntary examination.1085 Section 394.4655 of the Act sets forth the criteria and procedures for involuntary outpatient placement which allows for detention as long as the individual meets the criteria of the Act, for which must be filed with the court by the administrator of either a receiving facility or a treatment facility, and provides the individual with appointment of the public defender and for a hearing on the matter; section 394.467 lays out parallel procedures for involuntary inpatient treatment for an individual who has refused voluntary placement for treatment or has been determined to be manifestly incapable of surviving on his or her own or with the help of willing or responsible family and friends.1086 3.9.2. Jimmy Ryce Act commitment The Jimmy Ryce Involuntary Civil Commitment for Sexually Violent Predators Treatment and Care Act,1087 provides a civil commitment procedure for the long term treatment of sexually violent predators. The Act was created so that a person classified as a sexually violent predator may be involuntarily committed to the Department of Children and Families (DCF) for treatment until the person's mental abnormality or personality disorder has changed and the person is safe to be at large.1088 The Act addresses the situation concerning a small but extremely dangerous number of sexually violent predators who do not have a mental disease or defect that renders them appropriate for involuntary treatment under the Baker Act and who are not good candidates for treatment that would allow them to return safely to the communities after serving their criminal sentences. The Act defines operational terms such as mental abnormality, sexually violent predator, and predatory in the context of the procedures implemented by it.

1085

394.463(2), Fla. Stat. 394.467, Fla. Stat. 394.910 to 394.930, Fla. Stat. See, Fla. H.R. Comm. on Fam. Law & Child., CS for HB 3327 (1998) Staff Analysis 1 (final May 26,

1086

1087

1088

1998).

191

The Jimmy Ryce Act requires the agency with jurisdiction over a person who has been convicted of a sexually violent offense provide written notice and certain information regarding the person to a multidisciplinary team before the persons release from total confinement.1089 The multidisciplinary team must include two licensed psychiatrists or psychologists, or one licensed psychiatrist and one licensed psychologist.1090 After receiving the information, the multidisciplinary team must provide the state attorney a written assessment and recommendation as to whether the person meets the definition of a sexually violent predator.1091 After receiving the written assessment and recommendation from the multidisciplinary team, the state attorney has discretion to file a petition for civil confinement with the circuit court alleging the person is a sexually violent predator.1092 A written report of the multidisciplinary team recommending that a person is a sexually violent predator is required before the state attorney can exercise his or her discretion to file a petition for civil commitment. In other words, a positive recommendation from the multidisciplinary team that a person meets the criteria to be considered a sexually violent predator is a condition precedent to the filing of the petition for commitment by the state attorney.1093 The recommendation of the multidisciplinary team does not, however, have to be unanimous.1094 Under section 394.913, when it appears that a person may meet the criteria of a sexually violent predator, the state attorney will be given notice of impending release of the person at least 180 days prior to the release. The state attorneys office may file a petition with the circuit court engaging the processes of the new law. When the petition is filed, the court makes a nonadversarial determination whether the petition sets forth sufficient grounds to believe that probable cause exists that the subject is a sexually violent predator. If probable cause is found, the court will have the subject taken into custody and transported to an appropriate secure facility for professional evaluation. Within 30 days of a determination of probable cause, the court shall conduct a trial (by six-member petit jury upon demand of the person) to determine whether the person is a sexually violent predator, with the subject being entitled to assistance of counsel, including a public defender if he or she is indigent. The subject is entitled to be examined by a professional of his or her own choosing in addition to the state examination. The subjects professional will be paid by public funds if the subject is indigent.1095 Proof must be by clear and convincing evidence that the person

1089

394.913, Fla. Stat. 394.913(3)(b), Fla. Stat. 394.913(3)(b), Fla. Stat. 394.914, Fla. Stat. Harden v. State, 932 So. 2d 1152 (Fla. 3d DCA 2006). In re Commitment of Heath, 895 So. 2d 1258 (Fla. 2d DCA 2005). 394.916, Fla. Stat.

1090

1091

1092

1093

1094

1095

192

is a sexually violent predator. The verdict must be unanimous and any such determination (whether made by the court or the jury) may be appealed.1096 For someone to be civilly committed under the Ryce Act, a factfinder must determine by clear and convincing evidence that the respondent (1) has been convicted of an enumerated sexually violent offense; and (2) suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure place for long-term control, care, and treatment.1097 The Ryce Act does not require an additional, separate finding that the offender has serious difficulty controlling behavior, as a finding that the offender lacked the ability to control behavior was implicit in the statutory definitions of sexually violent predator, sexually violent offense, mental abnormality, and likely to engage in acts of sexual violence contained in the Ryce Act and reflected in the instructions to the jury.1098 The Jimmy Ryce Act applies to otherwise qualified defendants who are or were in lawful custody on or after January 1, 1999, the effective date of the Act, and the Act does not apply to people who are not in this category. The term custody under the Act applies only to individuals in lawful custody, not merely those individuals in actual custody.1099 An individual must be in lawful custody when commitment proceedings are initiated in order for the circuit court to have jurisdiction to adjudicate the commitment petition filed pursuant to the Jimmy Ryce Act.1100 An inmate is not in lawful custody at the time the State initiates civil commitment proceedings under the Jimmy Ryce Act when the inmates sentence has actually expired due to postconviction credit for time previously served and/or an award of gain time.1101 Probation is not custody within the meaning of the Act.1102 A defendant held in county jail on a violation of probation or community control charge before supervision is revoked is in lawful custody for purposes of the Act because such custody is authorized by section 948.06(1) and Fla. R. Crim. P. 3.790(b).1103

1096

394.917, Fla. Stat. 394.912(10), Fla. Stat. State v. White, 891 So. 2d 502 (Fla. 2004). State v. Phillips, 2013 WL 1338042 (Fla. 2013); State v. Atkinson, 831 So. 2d 172 (Fla. 2002). Larimore v. State, 2 So. 3d 101 (Fla. 2008), as revised on denial of rehg, (Jan. 29, 2009). State v. Phillips, 2013 WL 1338042 (Fla. 2013). State v. Siddal, 772 So. 2d 555 (Fla. 3d DCA 2000). See, State v. Ducharme, 892 So. 2d 1133 (Fla. 5th DCA 2004).

1097

1098

1099

1100

1101

1102

1103

193

Any person found to be a sexually violent predator is committed to the custody of DCF for control, care, and treatment until such time as the person is determined to be safe to be at large.1104 All sexually violent predators undergo an annual examination of his or her mental condition.1105 In addition, section 916.39 provides methods by which the subject may petition the court for a review of his or her status. Section 394.926 requires that prior to release of a committed person, DCF shall give written notice of the release of a person committed as a sexually violent predator to any victim of the person's activities or crime who is alive and whose address is known to DCF or, if the victim is deceased, to the victims next of kin. Section 394.921 makes otherwise confidential or privileged information held by a governmental agency discloseable to the state attorney for purposes of meeting its statutory obligation under this new law. If committed, the person thereafter has the right to additional probable cause hearings to determine whether there is probable cause to believe that the persons condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged. The person has the right to be represented by counsel at the probable cause hearing, but the person is not entitled to be present. If the court determines that there is probable cause to believe it is safe to release the person, the court shall set a trial before the court on the issue. At the trial before the court, the person is entitled to be present and is entitled to the benefit of all constitutional protections afforded the person at the initial trial, except for the right to a jury. The state attorney represents the State at the hearing and has the right to have the person examined by professionals chosen by the State. At the hearing, the State bears the burden of proving, by clear and convincing evidence, that the persons mental condition remains such that it is not safe for the person to be at large and that, if released, the person is likely to engage in acts of sexual violence.1106 The statute and the case law construing the Jimmy Ryce Act make it clear that the commitment proceedings under the Jimmy Ryce Act are civil in nature. Moreover, section 394.9155(1) provides that the Florida Rules of Civil Procedure apply to all civil commitment proceedings for sexually violent predators unless otherwise specified.1107 A sex offenders involuntary civil commitment as a sexually violent predator under the Act is not continued punishment for his criminal offense, and thus does not violate an offenders due process right to specific performance of his plea agreement.1108 Any bargain a defendant may strike in a plea agreement in a criminal case has no bearing on a subsequent involuntary civil commitment for

1104

394.917(2), Fla. Stat. 394.918(1), Fla. Stat. 394.918, Fla. Stat. State v. Mitchell, 848 So. 2d 1209 (Fla. 1st DCA 2003), decision approved, 911 So. 2d 1211 (Fla.

1105

1106

1107

2005).
1108

State v. McFarland, 884 So. 2d 957 (Fla. 1st DCA 2003); see, Murray v. Regier, 872 So. 2d 217 (Fla.

2002).

194

control, care, and treatment.1109 A plea agreement, entered into prior to the passage of the Ryce Act, for prison time followed by probation is not violated when the State later initiates discretionary civil commitment proceedings under that act, and in such circumstances the State is not barred by equitable estoppel from seeking civil commitment.1110 The States initiation of civil commitment proceedings does not violate a prior agreement that did not mention the possibility of such proceedings. Any agreement that a defendant may strike in a plea agreement in a criminal case would have no bearing on a subsequent involuntary civil commitment for control, care, and treatment.1111 3.10. Deportation Since 1988, the law in Florida requires that the trial judge must specifically advise a defendant, before the defendant enters a guilty or nolo contendere plea, that he or she may face deportation as a consequence of that plea.1112 The language in the Rule 3.172(c)(8) plea colloquy warns that conviction may result in deportation. The United States Supreme Court in Padilla1113 held that when the law is not succinct and straightforward as to whether a guilty plea will result in deportation, a criminal defense attorney, in order to provide effective assistance, need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences; but when the deportation consequence is truly clear, as when a plea will result in automatic deportation, the duty to give correct advice is equally clear, i.e., the defendant must be informed by defense counsel (or the court) that deportation is certain. The Florida Supreme Court has held that an equivocal warning from the trial court is insufficient to categorically eliminate prejudice in every circumstance. This is not to say, however, that the plea colloquy is meaningless. Instead, a colloquy containing an equivocal warning from the trial court and an acknowledgment from the defendant contributes to the totality of the circumstances by providing evidence that the defendant is aware of the possibility that a plea could affect his or her immigration status. In other words, the colloquy required by rule 3.172(c)(8) may refute a defendants post-conviction claim that he or she had no knowledge that a plea could have possible immigration consequences; however, it cannot by itself refute a claim that he or she was unaware of presumptively mandatory

See, State v. McFarland, 884 So. 2d 957 (Fla. 1st DCA 2003); Murray v. Regier, 872 So. 2d 217 (Fla. 2002); see also, Sandillo v. State, 842 So. 2d 1018, 1019 (Fla. 5th DCA 2003); Krischer v. Faris, 838 So. 2d 600, 603 (Fla. 4th DCA 2003); Westerheide v. State, 831 So. 2d 93 (Fla. 2002) (holding that the Jimmy Ryce Act is not punitive in nature and does not violate ex post facto clause).
1110

1109

State v. Harris, 881 So. 2d 1079 (Fla. 2004). Murray v. Kearney, 770 So. 2d 273 (Fla. 4th DCA 2000), decision quashed, 872 So. 2d 217 (Fla. 2002).

1111

In re Amendments to Florida Rules of Criminal Procedure, 536 So. 2d 992 (Fla. 1988); see, Fla. R. Crim. P. 3.172(c)(8).
1113

1112

Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).

195

consequences.1114 In any event, the defendant has to show at any hearing on his or her motion to withdraw the plea to the offense or offenses that his or her plea was the only basis for removal and that he or she had a legitimate expectation that he or she would be allowed to remain in the country.1115 A defendant seeking to withdraw a plea because the trial court did not advise the defendant of the possibility of deportation as part of the plea colloquy, in violation of Fla. R. Crim. P. 3.172(c)(8), must file a Rule 3.850 motion within two years after the judgment and sentence become final. In disputing whether a deportation warning had been given in a plea colloquy, the burden of proof falls on the defendant, and he or she is required to demonstrate in his or her motion how he or she will prove that the warning was not given. The motion must allege, in addition to the lack of a deportation warning, that the defendant would not have entered the plea if properly advised and that under current law the plea does render the defendant subject to being removed from the country at some point in the future. A defendant filing outside the two-year limitation period must allege and prove that he or she could not have ascertained the immigration consequences of the plea with the exercise of due diligence within the two-year period. Defendants whose cases were already final as of the issuance of the Florida Supreme Courts opinion in State v. Green1116 on October 26, 2006 will have two years from that date in which to file a motion comporting with the standards of that opinion. In cases pending in the trial and appellate courts on October 26, 2006, courts should apply the criteria set out in the Green opinion. If relief is denied in a case pending on October 26, 2006, because the defendant has not alleged or established that he or she is subject to or threatened with deportation, the defendant is allowed to refile in compliance with the standards set out in the Green opinion within sixty days of affirmance, denial, or dismissal. All other defendants have two years from the date their cases become final in which to seek relief under the holding of Green.1117 In order to establish prejudice as a result of the failure to advise a defendant of the deportation consequences of a plea, the burden is on the movant to establish that the plea in the case under attack is the only basis for deportation. Only then can the movant show prejudice resulting from the failure to advise of deportation consequences.1118 Where a defendant has entered a plea in exchange for a sentence of life imprisonment without the possibility of parole, there is no realistic possibility of deportation and the defendant is not entitled to relief under Rule 3.850 if the plea colloquy contained no warning of the immigration

1114

Hernandez v. State, 2012 WL 5869660 (Fla. 2012). See, Ioselli v. State, 2013 WL 611781 (Fla. 4th DCA 2013). State v. Green, 944 So. 2d 208 (Fla. 2006). State v. Green, 944 So. 2d 208 (Fla. 2006).

1115

1116

1117

State v. Tabuteau, 16 So. 3d 991 (Fla. 3d DCA 2009); Buton v. State, 995 So. 2d 1130 (Fla. 4th DCA 2008); State v. Sinclair, 995 So. 2d 621 (Fla. 3d DCA 2008); Forrest v. State, 988 So. 2d 38 (Fla. 4th DCA 2008).

1118

196

consequences of the plea.1119 Note that giving a proper deportation warning at a subsequent violation of supervision plea does not cure an error regarding the failure to give proper warnings in the initial plea to the original criminal charges.1120 Note, also, that while under Peart v. State,1121 any defendant who gained knowledge of the threat of deportation prior to the filing date of Peart had two years from the decisions filing dateApril 13, 2000to seek withdrawal of his or her plea due to the failure to inform him or her of the immigration consequences of the plea, but fails to do so and the time period expires before the date Green1122 was issued, Green does not open a new window for him or her.1123 3.11. Restraining orders upon conviction of stalking or cyberstalking A sentencing court must consider, as a part of any sentence for stalking or cyberstalking under section 784.048, issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. The length of any such order must be based upon the seriousness of the facts before the court, the probability of future violations by the perpetrator, and the safety of the victim and his or her family members or individuals closely associated with the victim.1124 The order may be issued by the court even if the defendant is sentenced to a state prison or a county jail or even if the imposition of the sentence is suspended and the defendant is placed on probation.1125

1119

Markland v. State, 971 So. 2d 832 (Fla. 3d DCA 2007). Sabnani v. State, 5 So. 3d 808 (Fla. 3d DCA 2009); Valdez v. State, 1 So. 3d 1167 (Fla. 3d DCA 2009). Peart v. State, 756 So. 2d 42 (Fla. 2000). State v. Green, 944 So. 2d 208 (Fla. 2006). Lopez v. State, 12 So. 3d 849 (Fla. 3d DCA 2009). 784.048(9)(a), Fla. Stat. 784.048(9)(b), Fla. Stat.

1120

1121

1122

1123

1124

1125

197

Figure 1. Prison Releasee Reoffender Plea Colloquy (1) Notice [Ask the clerk for a copy of the Notice filed by the State, and state on the record that the State filed its Notice to Seek Enhanced Penalties as a Prison Releasee Reoffender, and that the notice was filed on (date)] To the Defense Counsel: Are you stipulating that you received the State's notice and discussed this with your client? To the Defendant: Has your attorney discussed with you the fact that the State has filed a notice of its intention to seek enhanced penalties as a Prison Releasee Reoffender, and the impact this would have on your potential sentence in this case? (2) PRR Sentence To the Defendant: Are you aware that the maximum penalty I could impose against you as a Prison Releasee Reoffender is __________ years in prison? Are you aware that being sentenced as a Prison Releasee Reoffender means that you will be required to serve each and every day of your sentence, in effect, 100% of the time to which you are being sentenced, and that you will not be eligible for parole, control release, gain time, or any form of early release? (3) Predicate Offense The State must prove that the crime for which you are pleading guilty to now occurred within 3 years of your release from prison. To the Defense Counsel: Are you waiving your clients right to a Presentence Investigation (PSI)? Are you stipulating to the Defendants prior conviction without the need of testimony or further proof? To the Defendant: Are you in agreement with that stipulation? Please listen carefully to the prior conviction(s) that the State will be announcing for the record. When the State is finished, I will ask you if those were your prior convictions. To the Prosecutor: What case are you relying on for proof that the Defendant qualifies as a Prison Releasee Reoffender? [Note: The prosecutor should state case number, charge(s), close date, and sentence. Make sure that the Defendants release date was within 3 years of the commission of the instant offense(s).] To the Defendant: Are you, in fact, the Defendant in that prior case? Do you have any proof that the conviction was set aside by post-conviction proceedings or a pardon by the Governor? (4) Findings by the Court: 198

(1) The Court finds that the Defendant was properly put on notice of the States intention to seek an enhanced penalty as a Prison Releasee Reoffender and that the notice was filed with the clerk on (date). (2) The Court finds that the felony on which the Defendant is being sentenced is one of the enumerated felonies pursuant to section 775.082(8)(a)1. (3) The Court finds that the State has proven by a preponderance of the evidence that the Defendant committed the offense for which he is now being sentenced within 3 years of his release from a correctional facility in case number ____________________. (4) In addition, the Court finds that the Defendant has offered no evidence that the prior conviction was set aside by post-conviction proceedings or a pardon by the Governor. Based on the foregoing, the Court finds that the Defendant qualifies for sentencing as a Prison Releasee Reoffender, and sentences the Defendant to years in the state prison.

199

Figure 2. Habitual Felony Offender Plea Colloquy (1) Notice [Ask the clerk for a copy of the Notice filed by the State, and state on the record that the State filed its Notice to Seek Enhanced Penalties as a Habitual Felony Offender, Habitual Violent Felony Offender, or Violent Career Criminal, and that the notice was filed on (date)] To the Defense Counsel: Are you stipulating that you received the State's notice and discussed this with your client? To the Defendant: Has your attorney discussed with you the fact that the State has filed a notice of its intention to seek enhanced penalties as a Habitual Felony Offender, and the impact this would have on your potential sentence in this case? (2) HFO Sentence To the Defendant: Are you aware that the maximum penalty I could impose against you as a Habitual Felony Offender is years in prison? Are you aware that being sentenced as a Habitual Felony Offender may affect the possibility of early release through certain programs, including the Conditional Release and Early Release programs? In addition, do you understand that you may not be entitled to gain time or any other time off your sentence? In fact, do you understand that no one can guarantee the exact amount of time that you will serve, other than that on the charge(s) to which you are pleading you will not serve more than the time to which you are being sentenced today? Has anyone represented anything other than that to you? (3) Predicate Offenses The State must prove that the Defendant has previously been convicted of any combination of two or more felonies in this state or other qualified offenses, and that 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 Defendants last prior felony or other qualified offense, or within 5 years of the Defendants 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; and The felony for which the Defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of section 893.13 relating to the purchase or the possession of a controlled substance. To the Defense Counsel: 200

Are you waiving your clients right to a Presentence Investigation (PSI)? Are you stipulating to the Defendants prior convictions without the need of testimony or further proof? To the Defendant: Are you in agreement with that stipulation? Please listen carefully to the prior convictions that the State will be announcing for the record. When the State is finished, I will ask you if those were your prior convictions. To the Prosecutor: What cases are you relying on for proof that the Defendant qualifies as a Habitual Felony Offender? [Note: The prosecutor should state case numbers, charges, close dates, and sentences.] To the Defendant: Are you, in fact, the Defendant in those prior cases? Do you have any proof that any of those convictions was set aside by post-conviction proceedings or a pardon by the Governor? (4) Findings by the Court: (1) The Court finds that the Defendant was properly put on notice of the States intention to seek an enhanced penalty and that the notice was filed with the clerk on (date). (2) The Court finds that the State has proven by a preponderance of the evidence that the Defendant has previously been convicted of two (2) felonies, one on (date) under Case Number ____________________, wherein the Defendant was convicted and sentenced to (years/days) for (offense) and the other one on (date) under Case Number ____________________, wherein the Defendant was convicted and sentenced to (years/days) for (offense). (3) The Court further finds that the felony for which the Defendant is being sentenced, and one of two (2) prior felonies used for enhancement, are not violations of section 893.13, Fla. Stat., relating to the purchase or possession of a controlled substance. (4) In addition, the Court finds that the Defendant has offered no evidence that either of the prior convictions was set aside by post-conviction proceedings or a pardon by the Governor. Based on the foregoing, the Court finds that the Defendant qualifies for sentencing as a Habitual Felony Offender, and sentences the Defendant to __________ years in the state prison.

201

Figure 3. Habitual Violent Felony Offender Plea Colloquy (1) Notice [Ask the clerk for a copy of the Notice filed by the State, and state on the record that the State filed its Notice to Seek Enhanced Penalties as a Habitual Felony Offender, Habitual Violent Felony Offender, or Violent Career Criminal, and that the notice was filed on (date)] To the Defense Counsel: Are you stipulating that you received the States notice and discussed this with your client? To the Defendant: Has your attorney discussed with you the fact that the State has filed a notice of its intention to seek enhanced penalties as a Habitual Violent Felony Offender, and the impact this would have on your potential sentence in this case? (2) HVFO Sentence To the Defendant: Are you aware that the maximum penalty I could impose against you as a Habitual Violent Felony Offender is __________ years in prison with a minimum mandatory of __________ years? Are you aware that being sentenced as a Habitual Violent Felony Offender may affect the possibility of early release through certain programs, including the Conditional Release and Early Release programs? In addition, do you understand that you may not be entitled to gain time or any other time off your sentence? Are you aware that you will be required to serve each and every day of the minimum mandatory portion of your sentence? In fact, do you understand that no one can guarantee the exact amount of time that you will serve, other than that on the charge(s) to which you are pleading you will not serve more than the time to which you are being sentenced today? Has anyone represented anything other than that to you? (3) Predicate Offenses The State must prove 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: arson; sexual battery; robbery; 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; or 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 Defendants release from a prison sentence, probation, community control, control 202

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. To the Defense Counsel: Are you waiving your clients right to a Presentence Investigation (PSI)? Are you stipulating to the Defendant's prior convictions without the need of testimony or further proof? To the Defendant: Are you in agreement with that stipulation? Please listen carefully to the prior conviction that the State will be announcing for the record. When the State is finished, I will ask you if that was your prior conviction. To the Prosecutor: What cases are you relying on for proof that the Defendant qualifies as a Habitual Violent Felony Offender? [Note: The prosecutor should state case number(s), charge(s), close date(s), and sentence(s).] To the Defendant: Are you, in fact, the Defendant in that prior case? Do you have any proof that that conviction was set aside by post-conviction proceedings or a pardon by the Governor? (4) Findings by the Court: (1) The Court finds that the Defendant was properly put on notice of the States intention to seek an enhanced penalty and that the notice was filed with the clerk on (date). (2) The Court finds that the State has proven by a preponderance of the evidence that the Defendant has previously been convicted of one (1) enumerated felony, on (date) under Case Number ____________________, wherein the Defendant was convicted and sentenced to (years/days) for (offense) [or the Defendant was released from prison on (date within 5 years) under Case Number ____________________, wherein the Defendant was convicted and sentenced to (years/days) for (offense)]. (3) In addition, the Court finds that the Defendant has offered no evidence that the prior conviction was set aside by post-conviction proceedings or a pardon by the Governor. Based on the foregoing, the Court finds that the Defendant qualifies for sentencing as a Habitual Violent Felony Offender, and sentences the Defendant to __________ years in the state prison with a __________-year minimum mandatory.

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Figure 4. Violent Career Criminal Plea Colloquy (1) Notice [Ask the clerk for a copy of the Notice filed by the State, and state on the record that the State filed its Notice to Seek Enhanced Penalties as a Habitual Felony Offender, Habitual Violent Felony Offender, or Violent Career Criminal, and that the notice was filed on (date)] To the Defense Counsel: Are you stipulating that you received the State's notice and discussed this with your client? To the Defendant: Has your attorney discussed with you the fact that the State has filed a notice of its intention to seek enhanced penalties as a Violent Career Criminal, and the impact this would have on your potential sentence in this case? (2) VCC Sentence To the Defendant: Are you aware that the maximum penalty I could impose against you as a Violent Career criminal is __________ years in prison with a minimum mandatory of __________ years? Are you aware that being sentenced as a Violent Career Criminal may affect the possibility of early release through certain programs, including the Conditional Release and Early Release programs? In addition, do you understand that you may not be entitled to gain time or any other time off your sentence? Are you aware that you will be required to serve each and every day of the minimum mandatory portion of your sentence? In fact, do you understand that no one can guarantee the exact amount of time that you will serve, other than that on the charge(s) to which you are pleading you will not serve more than the time to which you are being sentenced today? Has anyone represented anything other than that to you? (3) Predicate Offenses (At Least 3) The State must prove 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: any forcible felony, as described in section 776.08; aggravated stalking, as described in section 784.048(3) and (4); aggravated child abuse, as described in section 827.03(2); aggravated abuse of an elderly person or disabled adult, as described in section 825.102(2); lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct, or lewd or lascivious exhibition, as described in section 800.04; escape, as described in section 944.40; or 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.

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3. The primary felony offense for which the defendant is to be sentenced is a felony so enumerated and was committed on or after May 24, 1997,1126 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 defendants 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. To the Defense Counsel: Are you waiving your client's right to a Presentence Investigation (PSI)? Are you stipulating to the Defendants prior convictions without the need of testimony or further proof? To the Defendant: Are you in agreement with that stipulation? Please listen carefully to the prior convictions that the State will be announcing for the record. When the State is finished, I will ask you if those were your prior convictions. To the Prosecutor: What cases are you relying on for proof that the Defendant qualifies as a Violent Career Criminal? [Note: The prosecutor should state case number(s), charge(s), close date(s), and sentence(s). Make sure the priors are enumerated offenses.] To the Defendant: Are you, in fact, the Defendant in that prior cases? Do you have any proof that any conviction was set aside by post-conviction proceedings or a pardon by the Governor? (4) Findings by the Court: (1) The Court finds that the Defendant was properly put on notice of the States intention to seek an enhanced penalty and that the notice was filed with the clerk on (date). (2) The Court finds that the State has proven by a preponderance of the evidence that the Defendant has previously been convicted of three (3) enumerated felonies, one on (date) under Case Number ____________________, wherein the Defendant was convicted and sentenced to (years/days) for (offense), a second on (date) under Case Number _______________, wherein the Defendant was convicted and sentenced to (years/days) for (offense), and a third on (date) under Case Number _______________, wherein the Defendant was convicted and sentenced to (years/days) for (offense). (3) The Court finds that the Defendant was previously incarcerated in a state (or federal) prison under Case Number _______________. (4) The Court finds that the felony on which the Defendant is being sentenced and the 3 prior felonies are enumerated felonies pursuant to section 775.084(1)(d)1.

The violent career criminal statute became effective on October 1, 1995 but, pursuant to Heggs v. State, 759 So. 2d 620 (Fla. 2000) and State v. Thompson, 750 So. 2d 643 (Fla. 1999), it is valid only on or after May 24, 1997).

1126

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(5) The Court finds that the offense for which the Defendant is currently being sentenced was committed on or after May 24, 1997 and a. while the Defendant was incarcerated for an enumerated felony, or b. within 5 years of conviction or release from or release from prison or other commitment for an enumerated felony. (6) In addition, the Court finds that the Defendant has offered no evidence that any of the prior convictions used for enhancement was set aside by post-conviction proceedings or a pardon by the Governor. Based on the foregoing, the Court finds that the Defendant qualifies for sentencing as a Violent Career Criminal, and sentences the Defendant to __________ years in the state prison with a __________-year minimum mandatory.

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