Advanced Issues in Florida Sentencing 2015

ADVANCED SENTENCING ISSUES
IN FLORIDA STATE COURTS

Enhancements, Reclassifications, Special Sanctions and Alternatives to
Criminal Punishment Code Sentencing
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
March 26-27, 2014
2015 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.
William H. Burgess, III, Advanced Sentencing Issues in Florida State Courts, March 2015
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 2006-2015), and also has a blog, Florida Sentencing, which can be found at
http://floridasentencing.blogspot.com/ and http://floridasentencing.wordpress.com/..
Contents
Alternatives to, and mitigation of, Criminal Punishment Code sentencing in generally. . . . . . . . . . . . . . . 1
Preemption of felony prosecution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Non-prosecution agreements and deferred disposition agreements.. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Pretrial diversion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
General pretrial diversion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Drug offender pretrial intervention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Bad check pretrial intervention program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Misdemeanor drug pretrial diversion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Post-adjudicatory drug treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Prison diversion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Drug offender probation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Drug court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Sentencing back as a juvenile. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Downward departure from the presumptive minimum calculated sentence. . . . . . . . . . . . . . . . . . . . . 16
Burden, level and sufficiency of proof in departure sentencing. . . . . . . . . . . . . . . . . . . . . . . . 18
Defense obligations in departure sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Procedures to be followed by the judge in departure sentencing.. . . . . . . . . . . . . . . . . . . . . . 21
Statutory mitigating circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
The departure results from a legitimate, uncoerced plea bargain. . . . . . . . . . . . . . . . . 23
The defendant was an accomplice to the offense and was a relatively minor
participant in the criminal conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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. . . . . . . . 25
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
The need for payment of restitution to the victim outweighs the need for a prison
sentence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
The victim was an initiator, willing participant, aggressor, or provoker of the incident
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
The defendant acted under extreme duress or under the domination of another person
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Before the identity of the defendant was determined, the victim was substantially
compensated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
The defendant cooperated with the State to resolve the current offense or any other
offense.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
The offense was committed in an unsophisticated manner and was an isolated
incident for which the defendant has shown remorse. . . . . . . . . . . . . . . . . . . . . . . . . 32
At the time of the offense the defendant was too young to appreciate the
consequences of the offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
i
The defendant is to be sentenced as a youthful offender. . . . . . . . . . . . . . . . . . . . . . . 36

The defendant is a nonviolent felony offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
The defendant was making a good faith effort to obtain or provide medical assistance
for a drug-related overdose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Substantial assistance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Non-statutory mitigating circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Enticement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Sentencing entrapment and sentence manipulation. . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Sentencing entrapment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Sentence manipulation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Lower sentence of an equally or more culpable codefendant. . . . . . . . . . . . . . . . . . 47
Diminished mental capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Extraordinary restitution .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Extraordinary susceptibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Totality of circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Nexus to offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Limits on sentence mitigation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Resentencing on remand after reversal of a downward departure. . . . . . . . . . . . . . . . . . . . . . 57
Enhancement of penalty and reclassification of offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Upward departure under the Criminal Punishment Code for third degree felonies that are not
forcible felonies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Proof of prior conviction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Criminal gang. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Wearing a mask or hood. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Evidencing prejudice while committing offense.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Sexual battery by multiple perpetrators. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Unlawful taking, possession, or use of law enforcement officers firearm. . . . . . . . . . . . . . . . 72
Reclassifications of various types of batteries and assaults. . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Battery.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Assault or battery on emergency medical care providers, firefighters, law
enforcement explorers, law enforcement officers, public transit employees or agents,
or other specified officers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Assault or battery on sexually violent predators detention or commitment facility
staff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Battery on detention or commitment facility staff or a juvenile probation officer. . . . . . 76
Battery on health services personnel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Battery of facility employee by throwing, tossing, or expelling certain fluids or
materials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Assault or battery on persons 65 years of age or older. . . . . . . . . . . . . . . . . . . . . . . 78
Assault or battery on specified officials or employees. . . . . . . . . . . . . . . . . . . . . . . . 78
Assault or battery by a person who is being detained in a prison, jail, or other
detention facility upon visitor or other detainee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
ii
Assault or battery on code inspectors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Burglary across county lines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Reclassifications of burglary and theft during states of emergency. . . . . . . . . . . . . . . . . . . . . . 81
Reclassifications of theft of emergency medical equipment. . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Reclassifications of theft of law enforcement equipment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Sexual offenses against students by authority figures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Unlawful filing of false documents or records against real or personal property. . . . . . . . . . . . 84
False reports to law enforcement authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Enhancement of penalty for cruelty to animals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Minimum mandatory sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Capital felonies.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Life felonies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Prison releasee reoffender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Dangerous sexual felony offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Felon in possession of firearms or ammunition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Possession or use of firearm or destructive device in commission of crime. . . . . . . . . 94
Drug possession, sale, and trafficking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Manufacture of drugs in presence of children.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
DUI manslaughter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Fleeing or attempting to elude law enforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Leaving the scene of a crash. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Assault or battery on law enforcement officers and other designated persons. . . . . . 120
Murder or attempted murder of a law enforcement officer. . . . . . . . . . . . . . . . . . . . 120
Aggravated assault or battery on an elderly person. . . . . . . . . . . . . . . . . . . . . . . . . 120
Domestic violence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Prison releasee reoffender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Habitual felony offender, habitual violent felony offender, threetime violent felony
offender, and violent career criminal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Probation and community control versus sentence. . . . . . . . . . . . . . . . . . . . . . . 131
Determination hearing and presentence investigation. . . . . . . . . . . . . . . . . . . . . . . . 131
Required notice of intent to seek enhanced penalties. . . . . . . . . . . . . . . . . . . . . . . . 132
Fact of prior conviction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Proof of prison release date for enhancement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Habitual felony offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Habitual violent felony offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Three-time violent felony offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Violent career criminal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
Scoresheet preparation when PRR, VCC, HFO, HVFO and 3-Time VCC
designations apply. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
iii
10/20/Life. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
Dangerous sexual felony offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
Direct and collateral consequences and special sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
DNA testing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Driver license revocation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Loss of civil liberties upon conviction of a felony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
Registration of convicted felons.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
Forfeiture.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
HIV testing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Castration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Sexual offender/sexual predator sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
Sexual offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
Sexual predator. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
Mandatory designation on drivers license or identification card. . . . . . . . . . . . . . . . 203
Mandatory designation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Removal of the requirement to register as a sexual offender or sexual predator in
special circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Involuntary civil commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Baker Act commitment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Jimmy Ryce Act commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
Deportation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Restraining orders upon conviction of stalking or cyberstalking. . . . . . . . . . . . . . . . . . . . . . 226
TABLE 1: Summary of Punishments Authorized by Section 775.084, Fla. Stat.. . . . . . . . . . . . . . . . 130
TABLE 2: Minimum Mandatory Qualifying Offenses Under Section 775.087, Fla. Stat.. . . . . . . . . 155
FIGURE 1: Prison Releasee Reoffender Plea Colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
FIGURE 2: Habitual Felony Offender Plea Colloquy.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
FIGURE 3: Habitual Violent offender Plea Colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
FIGURE 4: Violent Career Criminal Plea Colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
iv
Alternatives to, and mitigation of, Criminal Punishment Code sentencing generally
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.
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
defendants 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
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).
permission, enter a plea to that misdemeanor before it is felonized, and thereby preclude felonization
of that charge.3
A relatively 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
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
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
See, McManama v. State, 816 So. 2d 781 (Fla. 2d DCA 2002).
4
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).
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 outof-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 defendants 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
6
State v. Simons, 22 So. 3d 734 (Fla. 1st DCA 2009) (Court can dismiss charges where State refuses to honor terms of
settlement agreement).
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
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
7
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).
State, Dept. of Health and Rehabilitative Services v. E.D.S. Federal Corp., 631 So. 2d 353 (Fla. 1st DCA 1994).
Allen v. State, 642 So. 2d 815 (Fla. 1st DCA 1994).
10
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), case dismissed, 890 So. 2d 1114 (Fla. 2004); Travis v. State, 724 So. 2d 119, 12021 (Fla. 1st DCA 1998)(Cope, J., specially
concurring)).
11
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 Comrs
of Barnstable Fire Dist., 339 M ass. 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).
12
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).
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
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
her diversion. The defendant or the defendants immediate family may not personally contact the
victim or the victims 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
13
State v. Gorayeb, 510 So. 2d 1168 (Fla. 3d DCA 1987) (reversing for hearing to determine whether defendant breached
PTI agreement).
14
Batista v. State, 951 So. 2d 1008 (Fla. 4th DCA 2007).
15
Batista v. State, 951 So. 2d 1008 (Fla. 4th DCA 2007).
16
948.08(2), Fla. Stat.
consent of the state attorney is required. 1 7 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
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
17
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).
18
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).
19
See, Flaherty v. State, 367 So. 2d 1111 (Fla. 3d DCA 1979) (referring to the agreement as a bargain with the State of
Florida).
20
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
948.08(3), Fla. Stat.
22
948.08(4), Fla. Stat.
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
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
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
23
948.08(5), Fla. Stat.
24
948.08(6)(a), Fla. Stat.
25
948.08(6)(a), Fla. Stat.
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
Section 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
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
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.
26
948.08(6)(b), Fla. Stat.
27
948.08(6)(c), Fla. Stat.
28
Mullin v. Jenne, 890 So. 2d 543 (Fla. 4th DCA 2005).
29
Fieler v. State, 386 So. 2d 1310 (Fla. 3d DCA 1980).
30
State v. Board, 565 So. 2d 880 (Fla. 5th DCA 1990).
31
948.08, Fla. Stat.; King v. Nelson, 746 So. 2d 1217 (Fla. 5th DCA 1999).
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; (2) Full
restitution on the check; (3) Full payment of fees due under section 832.08(5): (4) Any individual
who does not fulfill the agreements for diversion could then be prosecuted under the appropriate
section; and (5) A knowing and intelligent waiver of the defendants right to a speedy trial for the
period of his or her diversion.35
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
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
32
832.08(1), Fla. Stat.
33
832.08(2), Fla. Stat.
34
832.08(3), Fla. Stat.
35
832.08(4), Fla. Stat.
36
832.08(5), Fla. Stat.
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. 3 7 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. 3 8
The court is required to dismiss the charges upon finding that the defendant has successfully
completed the pretrial intervention program.39
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
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,
37
948.16(1), Fla. Stat.
38
948.16(2)(a), Fla. Stat.
39
948.16(2)(b), Fla. Stat.
10
(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.
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). 4 0 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
diversion program pursuant to subsection 921.00241(2). The court may order the defendant to pay
40
921.00241(1), Fla. Stat.
41
921.00241(1)(a), Fla. Stat.
42
921.00241(1)(b), Fla. Stat.
43
921.00241(1)(c), Fla. Stat.
44
921.00241(1)(d), Fla. Stat.; Fla. R. Crim. P. 3.704(d)(28).
45
921.00241(2), Fla. Stat.
11
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 subsectionthereby limiting application of the law to violations of
supervision and precluding prison diversion from all cases involving a new law violationor
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.
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 Code 4 9 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.
47
See, PCS/SB 1722 Florida Senate Criminal and Civil Justice Appropriations Committee Bill Analysis and Fiscal Impact
Statement, M arch 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 M eans Bill
Analysis and Fiscal Impact Statement, April 6, 2009.
48
948.001(6), Fla. Stat.
49
See, Jones v. State, 813 So. 2d 22 (Fla. 2002).
12
The initial qualifications for drug offender probation are that it appears to the court upon a
hearing that the defendant is a chronic substance abuser whose criminal conduct is a violation of
section 893.13(2)(a) or (6)(a), or other nonviolent felony if such nonviolent felony is committed on
or after July 1, 2009, and notwithstanding section 921.0024 the defendant's Criminal Punishment
Code scoresheet total sentence points are 60 points or fewer, the court may either adjudge the
defendant guilty or stay and withhold the adjudication of guilt. In either case, the court may also stay
and withhold the imposition of sentence and place the defendant on drug offender probation or into
a postadjudicatory treatment-based drug court program if the defendant otherwise qualifies. As used
in section 948.20, 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 Drug
offender probation emphasizes a combination of treatment and intensive community supervision and
which includes provision for supervision of defendants in accordance with a specific treatment plan.
The program may include the use of graduated sanctions consistent with the conditions imposed by
the court. Drug offender probation status includes surveillance and random drug testing, and may
include those measures normally associated with community control, except that specific treatment
conditions and other treatment approaches necessary to monitor this population may be ordered.51
Defendants placed on drug offender probation are subject to revocation of probation as provided in
section 948.06.52
Note that section 893.13 does not prohibit a court from considering an alternative sentence
under section 948.20 if the defendant has been convicted of a non-drug felony, nor does any other
statute contain such a prohibition.53
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
50
948.20(1), Fla. Stat.
51
948.20(2), Fla. Stat.
52
948.20(3), Fla. Stat.
53
Nelson v. State, 16 So. 3d 286 (Fla. 4th DCA 2009).
13
felony as defined in section 776.08.54 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
defendants termination from the program for failure to comply with the terms thereof, or the
defendants sentence is completed.55
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:
1. As an adult;
2. Pursuant to chapter 958, Fla. Stat. (Youthful Offender); or
3. As a juvenile pursuant to chapter 985, Fla. Stat.
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
54
948.01(7)(a), Fla. Stat.
55
948.01(7)(b), Fla. Stat.
14
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.
2. 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.
3. 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.
Sentencing back to juvenile court is not, however, a guarantee that the juvenile will remain
under the juvenile courts 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
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
15
adult court for the imposition of any sentence that could be imposed on an adult in the same
circumstances.
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.56 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.57 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.58 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. 5 9 In any event, sentencing alternatives should not be used to thwart
the guidelines or Criminal Punishment Code.60
Nonetheless, one of the most practiced ways to mitigate a defendants 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
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
56
See, e.g., 921.002(1)(f) and (3), Fla. Stat.; State v. Henderson, 766 So. 2d 389 (Fla. 2d DCA 2000).
57
Fla. R. Crim. P. 3.704(d)(27).
58
State v. Mann, 866 So. 2d 179 (Fla. 5th DCA 2004) (disapproved of by, State v. Chubbuck, 2014 WL 2765926 (Fla.
2014)); Travis v. State, 724 So. 2d 119, 12021 (Fla. 1st DCA 1998)(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.).
59
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).
60
See, Disbrow v. State, 642 So. 2d 740 (Fla. 1994).
16
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,61
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.62
A judges decision not to depart is non-reviewable, as the statutory scheme of the Criminal
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.63
61
Wilson v. State, 845 So. 2d 142 (Fla. 2003).
62
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).
63
Stancliff v. State, 996 So. 2d 259 (Fla. 1st DCA 2008).
17
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.64 A
preponderance of the evidence is evidence which as a whole shows that the fact sought to be proved
is more probable than not.65 Substantial evidence is evidence which a reasoning mind would accept
as sufficient to support a particular conclusion.66
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.67
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.68 Where a defendant presents no evidence in support of a downward departure,
he or she fails to carry his or her burden, notwithstanding any unsworn statements made by defense
counsel.69
64
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 M ichigan, for example, a court may depart from the appropriate sentence
range established under that states 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 M ich. 247, 666 N.W.2d 231, 258
(2003).
65
State v. Edwards, 536 So. 2d 288, 292 n.3 (Fla. 1st DCA 1988).
66
State v. Morales, 460 So. 2d 410 (Fla. 2d DCA 1984).
67
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).
68
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).
69
State v. Arvinger, 751 So. 2d 74 (Fla. 5th DCA 1999); State v. Silver, 723 So. 2d 381 (Fla. 4th DCA 1998).
18
Defense obligations in departure sentencing

First and foremost, a defense attorney has an obligation to investigate and present available
mitigating evidence at sentencing.70 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.71 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.72
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 postplea 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
be entitled to a compulsory examination of the defendant.73 Thus, if the defendant intends to use
expert testimony to obtain a sentence less than the Criminal Punishment Code minimum presumptive
70
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).
71
See, State v. Clark, 644 So. 2d 556 (Fla. 2d DCA 1994) (defendants discovery obligations under Rule 3.220 apply to
sentencing).
72
See, Metropolitan Dade County v. Curry, 632 So. 2d 667 (Fla. 3d DCA 1994) (an order ent ered without notice or
opportunity to be heard is a void order and may be attacked at any time).
73
Fla. R. Crim. P. 3.216(f).
19
sentence, the defendant must give notice to the State and allow an opportunity for the State to depose
the expert and obtain rebuttal evidence.74
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.75 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.76 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. 7 7 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.78
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.79 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
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.80
74
State v. Massingill, 77 So. 3d 677 (Fla. 3d DCA 2011).
75
See, Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So. 2d 1021 (Fla. 4th DCA 1998).
76
See, Sagar v. State, 727 So. 2d 1118 (Fla. 5th DCA 1999); Ursry v. State, 428 So. 2d 713 (Fla. 4th DCA 1983).
77
See, Savino v. Luciano, 92 So. 2d 817 (Fla. 1957).
78
See, Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981).
79
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.
80
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,
20
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.
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.81 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.82 The sentencing judge may also
list the written reasons for departure in the space provided on the Criminal Punishment Code
scoresheet.83 Similar provisions are found in the rules pertaining to the former guidelines.84 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.85 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.86
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.87 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
Sklandis v. Walgreen Co., 832 So. 2d 942 (Fla. 3d DCA 2002) (one days 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).
81
See, Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999).
82
See, Pierre v. State, 971 So. 2d 825 (Fla. 3d DCA 2007).
83
Fla. R. Crim. P. 3.704(d)(27)(a).
84
See, Fla. R. Crim. P. 3.702(d)(18)(A) and 3.703(d)(30)(A).
85
Pease v. State, 712 So. 2d 374 (Fla. 1997); Gibson v. State, 661 So. 2d 288 (Fla. 1995).
86
Domberg v. State, 661 So. 2d 285 (Fla. 1995).
87
Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999); see also, State v. Clay, 780 So. 2d 269, 270 (Fla. 5th DCA 2001).
21
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.88 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.89
The trial court applies the incorrect standard in determining whether to exercise its discretion
when, for example, it applies arbitrary policies of rounding up sentences, 9 0 refusing to consider
youthful offender sentencing,91 refusing to consider downward departures in child pornography
cases,92 and refusing to consider a downward departure sentence once any defendant elects to
exercise his or her right to a jury trial.93
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.94 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.95 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.96
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:
88
See, Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999).
89
Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999).
90
Cromartie v. State, 70 So. 3d 559, 563 (Fla. 2011).
91
Pressley v. State, 73 So. 3d 834, 836 (Fla. 1st DCA 2011).
92
Goldstein v. State, 154 So. 3d 469 (Fla. 2d DCA 2015); Barnhill v. State, 140 So. 3d 1055 (Fla. 2d DCA 2014).
93
Little v. State, 152 So. 3d 770 (Fla. 5th DCA 2014).
94
Pope v. State, 561 So. 2d 554 (Fla. 1990).
95
See, Troutman v. State, 630 So. 2d 528 n.6 (Fla. 1993).
96
See, Baker v. State, 852 So. 2d 441 (Fla. 5th DCA 2003).
22
The departure results from a legitimate, uncoerced plea bargain97

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 States
agreement, it is impermissible to then allow the court to use this statutory reason to justify a
departure sentence.98 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.99
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.100 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.101 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.10 2 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
97
921.0026(2)(a), Fla. Stat.
98
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) (abrogated by, State v. Gitto, 731 So. 2d 686 (Fla. 5th DCA 1998));
Travis v. State, 724 So. 2d 119, 12021 (Fla. 1st DCA 1998); State v. McCarthy, 502 So. 2d 955 (Fla. 2d DCA 1987).
99
State v. Brannum, 876 So. 2d 724 (Fla. 5th DCA 2004).
100
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).
101
State v. Cure, 760 So. 2d 243 (Fla. 3d DCA 2000); State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985).
102
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).
23
by the record.103 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.104 Similarly, where an offer of
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.105
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.106 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.107
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.108
The defendant was an accomplice to the offense and was a relative ly minor
participant in the criminal conduct109
The court may consider the defendants 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.110
103
State v. Hale, 682 So. 2d 613 (Fla. 2d DCA 1996).
104
See, Dozier v. State, 881 So. 2d 662 (Fla. 3d DCA 2004) (Cope, J., concurring).
105
State v. Berry, 976 So. 2d 645 (Fla. 3d DCA 2008); State v. Watson, 971 So. 2d 946 (Fla. 3d DCA 2007).
106
See, State v. Warner, 762 So. 2d 507 (Fla. 2000).
107
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).
108
Scott v. State, 465 So. 2d 1359 (Fla. 5th DCA 1985).
109
921.0026(2)(b), Fla. Stat.
110
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).
24
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
impaired111
Emotional immaturity coupled with chronological young age is a sufficient basis to allow a
sentencing judge to depart downwards.112 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.113 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 921.0026.114
The defendant requires specialized treatment for a mental disorder that is
unrelated to substance abuse or addiction or for a physical dis ability, and the
defendant is amenable to treatment115
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.116 The defendant
is not required to prove that the mental disorder or physical disability requires treatment that is not
available in the Department of Corrections.117
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,
111
921.0026(2)(c), Fla. Stat.
112
See, State v. Gilson, 800 So. 2d 727 (Fla. 5th DCA 2001).
113
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).
114
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).
115
921.0026(2)(d), Fla. Stat.
116
921.0026(2)(d), Fla. Stat.
117
State v. Chubbuck, 2014 WL 2765926 (Fla. 2014).
25
this requires proof of a reasonable possibility that the treatment will be successful.118 Something
more than a defendants perfunctory statement that he or she is a fit subject to rehabilitation is
needed.119 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.120 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.121
The need for payment of restitution to the victim outweighs the need for a
prison sentence 122
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.123 The
amount of restitution due must be substantial and not be minor.124 The victim must have a pressing
need to recover the restitution amount specified.125 Ordinarily, the defendants ability to pay
restitution need only be considered at the time of enforcement of the restitution order.126 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
118
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).
119
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).
120
State v. Clark, 724 So. 2d 653 (Fla. 5th DCA 1999).
121
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).
122
921.0026(2)(e), Fla. Stat.; see also, State v. White, 755 So. 2d 830 (Fla. 5th DCA 2000).
123
State v. Petringelo, 762 So. 2d 965 (Fla. 2d DCA 2000).
124
State v. ODorle, 738 So. 2d 987 (Fla. 2d DCA 1999) (restitution amount of $112.62 will not support downward
departure sentencing).
125
See, State v. Adkison, 56 So. 3d 880 (Fla. 1st DCA 2011).
126
775.089(6)(b), Fla. Stat.
26
departure is not to be defeated.127 There must also be competent, substantial evidence showing that
the victims need for restitution outweighs the need for a prison sentence.128 The test is the victims
need, not the victims desire or preference.129 The trial court needs non-hearsay evidence of the
extent of loss suffered by the victim.130 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.131 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.132 Restitution can be made
a condition of post-incarceration probation, however.
The victim was an initiator, willing participant, aggressor, or provoker of the
incident133
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.134 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
127
State v. Baker, 713 So. 2d 1027 (Fla. 2d DCA 1998), opinion quashed, 733 So. 2d 992 (Fla. 1999).
128
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).
129
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 societys 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).
130
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).
131
State v. Amodeo, 750 So. 2d 664 (Fla. 5th DCA 1999).
132
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) (disapproved of by, State v. Chubbuck, 2014 WL 2765926 (Fla. 2014)); Travis v.
State, 724 So. 2d 119, 12021 (Fla. 1st DCA 1998).
133
921.0026(2)(f), Fla. Stat.
134
See, State v. Morales, 718 So. 2d 272 (Fla. 5th DCA 1998).
27
participation is sufficient for mitigating a defendants sentence on the basis of consent.135 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.136 Consent in this
regard means intelligent, knowing, and voluntary consent.137 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.138
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.139 This mitigator
is not available in cases involving the sale of illegal drugs.140 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,141 these comparative negligence
principles do not extend to the statutory sentence mitigator of willing participation by the victim
135
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).
136
Holland v. State, 953 So. 2d 19 (Fla. 2d DCA 2007).
137
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).
138
Fonte v. State, 913 So. 2d 670 (Fla. 3d DCA 2005).
139
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).
140
State v. Holmes, 909 So. 2d 526 (Fla. 1st DCA 2005) (disapproved of by, State v. Chubbuck, 2014 WL 2765926 (Fla.
2014)); Travis v. State, 724 So. 2d 119, 12021 (Fla. 1st DCA 1998)(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).
141
See, e.g., Gerena v. Carter, 496 So. 2d 1009 (Fla. 2d DCA 1986) (in a civil action a victims 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.).
28
in a criminal DUI manslaughter case142 absent a causal connection between the victims conduct and
defendants reckless driving.143
The defendant acted under extreme duress or under the domination of another
person144
The mitigator of extreme duress presupposes that a harm or crime of greater magnitude is
avoided when the subjected person succumbs to the duress.145 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.146 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.147 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.148 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. 149 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.150
142
State v. Torres, 60 So. 3d 560 (Fla. 2d DCA 2011).
143
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 victim's conduct and defendants recklessness).
144
921.0026(2)(g), Fla. Stat.
145
See, Wright v. State, 402 So. 2d 493 (Fla. 3d DCA 1981).
146
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).
147
See, Hall v. State, 136 Fla. 644, 187 So. 392 (1939).
148
Wright v. State, 402 So. 2d 493 (Fla. 3d DCA 1981).
149
See, Lawrence v. State, 846 So. 2d 440 (Fla. 2003).
150
See, Philmore v. State, 820 So. 2d 919 (Fla. 2002); White v. State, 817 So. 2d 799 (Fla. 2002).
29
Before the identity of the defendant was determined, the victim was
substantially compensated151
This provision has not been the subject of appellate litigation in this state, but the litigation
of equivalent provisions152 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., predetection 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 predetection evidence of remorse in sentence determination.153 This departure is also based on the fact
of compensation of the victim.154 A mere promise or willingness to pay restitution is not enough.155
The compensation must be substantial. 1 56 The actions of the defendant also must occur before
detection.157 The actions of the defendant must also demonstrate remorse, as opposed to actions
undertaken by the defendant for other considerations.158
151
921.0026(2)(h), Fla. Stat.
152
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 compens at e t he 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 states 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.
153
See, State v. McClarney, 107 Wash. App. 256, 26 P.3d 1013 (Div. 1 2001).
154
State v. McClarney, 107 Wash. App. 256, 26 P.3d 1013 (Div. 1 2001).
155
See, State v. Morris, 1998 WL 508053 (Tenn. Crim. App. 1998).
156
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 victim's cellular telephone and taking cord from victims
other telephone, giving victim $4 to replace telephone cord before leaving crime scene not sufficient compensation).
157
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).
158
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. App. 2000) (offer of restitution when defendant knew she was about to
get caught).
30
The de fendant cooperated with the State to resolve the current offense or any
other offense 159
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 defendants cooperation.160 A departure sentence
cannot be based on cooperation where the assistance does not result in solving any crimes or the
arrest of other persons.161 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.162
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.163 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.164 Merely pleading guilty is not sufficient cooperation for departure below the
required sentence.165 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.166
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.167
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.168
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
159
921.0026(2)(i), Fla. Stat.
160
See, State v. Bell, 854 So. 2d 686 (Fla. 5th DCA 2003); State v. Beck, 763 So. 2d 506 (Fla. 4th DCA 2000).
161
State v. Ertel, 886 So. 2d 423 (Fla. 2d DCA 2004).
162
State v. Laroe, 821 So. 2d 1199 (Fla. 5th DCA 2002).
163
State v. Ertel, 886 So. 2d 423 (Fla. 2d DCA 2004).
164
State v. White, 894 So. 2d 293 (Fla. 2d DCA 2005).
165
State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985).
166
See, State v. Bell, 854 So. 2d 686 (Fla. 5th DCA 2003).
167
State v. Pita, 54 So. 3d 557 (Fla. 3d DCA 2011).
168
Hill v. State, 122 So. 3d 1003 (Fla. 1st DCA 2013).
31
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.169 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.170
The offense was committed in an unsophisticated manner and was an isolated
incident for which the defendant has shown remorse 171
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.172 All three elements must be proven, not just one or two.173
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.174 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,175 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
and be accessible to the defendant,176 where the defendant gains entry to the victims residence by
169
921.186, Fla. Stat.
170
Cooper v. State, 106 So. 3d 32 (Fla. 1st DCA 2013).
171
921.0026(2)(j), Fla. Stat.
172
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).
173
State v. Deleon, 867 So. 2d 636 (Fla. 5th DCA 2004); State v. Falocco, 730 So. 2d 765 (Fla. 5th DCA 1999).
174
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).
175
State v. PerezGonzalez, 884 So. 2d 1031 (Fla. 3d DCA 2004).
176
State v. Chestnut, 718 So. 2d 312 (Fla. 5th DCA 1998).
32
deceit,177 or where the defendant makes a calculated decision not to flee after detection and to
continue the offense or defeat the detection.178
Neither the legislature nor the courts has established a bright-line rule for determining
whether an offense is an isolated incident. Section 921.0026(j) cannot, and should not, be read to
mean that as long as the defendant has never committed the exact offense fo which he or she is
currently being sentenced, the offense cannot be considered isolated regardless of the defendants
criminal history.179 A trial court is not, however, precluded from giving a defendant a downward
departure sentence just because the defendant has any prior criminal history.180 Isolated offenses
do not include continuing offenses. 1 81 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.182 A prior history of like crimes can render this basis for departure unavailable.183
A defendants extensive prior criminal record precludes a showing that an offense was an isolated
incident.184 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.185
177
State v. Morales, 718 So. 2d 272 (Fla. 5th DCA 1998).
178
State v. Salgado, 948 So. 2d 12 (Fla. 3d DCA 2006).
179
State v. Henderson, 152 So. 3d 49 (Fla. 5th DCA 2014).
180
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).
181
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).
182
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).
183
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).
184
State v. Ayers, 901 So. 2d 942 (Fla. 2d DCA 2005); State v. McGriff, 698 So. 2d 331 (Fla. 2d DCA 1997).
185
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).186 The remorse expressed has to be for the offense before the court for
sentencing, not for matters that gave rise to that offense.187 Guided statements elicited by the court
or counsel, simply saying Im 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.188 It is
impossible for a defendant who refuses to accept responsibility for an offense to show remorse for
that offense.189 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.190 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.191
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.192 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.193 This basis for departure has also been
sustained on appeal where the defendant was charged with sale and possession of cocaine arising out
186
Beasley v. State, 774 So. 2d 649 (Fla. 2000).
187
State v. Michels, 59 So. 3d 1163 (Fla. 4th DCA 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).
188
State v. Tyrrell, 807 So. 2d 122 (Fla. 5th DCA 2002) (disapproved of by, State v. Chubbuck, 2014 WL 2765926 (Fla.
2014)); Travis v. State, 724 So. 2d 119, 12021 (Fla. 1st DCA 1998); 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).
189
State v. Ayers, 901 So. 2d 942 (Fla. 2d DCA 2005).
190
State v. Chestnut, 718 So. 2d 312 (Fla. 5th DCA 1998).
191
State v. VanBebber, 848 So. 2d 1046 (Fla. 2003).
192
State v. Merritt, 714 So. 2d 1153 (Fla. 5th DCA 1998).
193
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).
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.194
At the time of the offense the defendant was too young to appre ciate the
consequences of the offense 195
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.196 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.197 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.198 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.199 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.200
194
State v. Randall, 746 So. 2d 550 (Fla. 5th DCA 1999).
195
921.0026(2)(k), Fla. Stat.
196
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 rehg, 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 comp et ent s ubs t ant ial evidence of emotional
immaturity); State v. Thompson, 754 So. 2d 126 (Fla. 5th DCA 2000) (disapproved of by, State v. Chubbuck, 2014 WL 2765926 (Fla.
2014)); Travis v. State, 724 So. 2d 119, 12021 (Fla. 1st DCA 1998) (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).
197
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).
198
State v. Salgado, 948 So. 2d 12 (Fla. 3d DCA 2006).
199
See, State v. Licea, 707 So. 2d 1155 (Fla. 2d DCA 1998); State v. Williams, 637 So. 2d 45 (Fla. 2d DCA 1994).
200
State v. Whiddon, 554 So. 2d 651 (Fla. 1st DCA 1989).
35
The defendant is to be sentenced as a youthful offender201

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 958.04.202 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.203
Pursuant to section 958.04, Fla. Stat., the court may sentence as a YO any person:
1. 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;
2. 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;204 and
3. 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
201
921.0026(2)(l), Fla. Stat.
202
958.03(5), Fla. Stat.
203
See, Smith v. State, 750 So. 2d 754 (Fla. 1st DCA 2000).
204
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 defendants 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).
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.205
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:
1. 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.
2. 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.
3. 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.
4. 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.
205
958.07, Fla. Stat.
37
Consecutive YO sentences exceeding the applicable maximum of six years are illegal.206 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.207 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.208 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,209 whether or not he or she is ever charged or convicted of that new criminal
offense.210 In contrast, a technical violation is a violation of a rule of probation or community
control.211
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.212 Otherwise,
a trial court may exercise discretion and not impose a youthful offender sentence.213 Failure to
206
Schebel v. State, 721 So. 2d 1177 (Fla. 1st DCA 1998).
207
Nguyen v. State, 566 So. 2d 368 (Fla. 5th DCA 1990).
208
958.14, Fla. Stat.
209
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).
210
See Christian v. State, 84 So. 3d 437 (Fla. 5th DCA 2012), review denied, 134 So. 3d 446 (Fla. 2014).
211
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).
212
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).
213
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.214 A defendant may
not be simultaneously sentenced as both a youthful offender and as an adult.215 The sentencing court
may not impose a youthful offender sentence on one count, but not another, even if part of a plea
agreement.216 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.217
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.218 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.219 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.220 A defendant classified as a YO is not subject to the minimum
mandatory provisions of the DUI manslaughter statute,221 and the trial court can withhold
adjudication for DUI offenses notwithstanding the mandatory language of section 316.656(1), Fla.
214
Edwards v. State, 830 So. 2d 141 (Fla. 5th DCA 2002).
215
See, Johnson v. State, 596 So. 2d 495 (Fla. 5th DCA 1992) (a defendant simultaneous ly s entenced 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).
216
Goelz v. State, 937 So. 2d 1237 (Fla. 4th DCA 2006).
217
Kelly v. State, 739 So. 2d 1164 (Fla. 5th DCA 1999); see, Allen v. State, 526 So. 2d 69 (Fla. 1988).
218
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).
219
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 (F la. 2d DCA 2001) (minimum mandatory sentencing provisions of 10/20/Life statute applicable to
enumerated felonies involving firearm do not 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).
220
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
courts 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).
221
State v. Gibron, 478 So. 2d 475 (Fla. 2d DCA 1985).
39
Stat.222 A defendant classified as a YO may, however, also bedesignated as a sexual offender or

sexual predator.223 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.224 An otherwise qualified defendant who was originally sentenced
as an adult can be sentenced as a YO upon revocation of probation or community control.225
The defendant is a nonviolent felony offender226
A departure from the lowest permissible sentence of imprisonment may be justified when the
defendants 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). 2 2 7
This mitigator is specific to participation in drug court and requires that the candidate be a
candidate for a drug court program. This departure requires competent, substantial evidence of the
defendants amenability to, and qualifications for, such a program.228 A finding that a defendant is
amenable to treatment means there is a reasonable possibility he or she will successfully overcome
drug addiction through a treatment program. Minimally, this requires proof of some facts indicating
a defendant has the potential to reverse his or her prior life of addiction, and is sincere in the desire
to do so. Something more than a defendants perfunctory statement that he or she is a fit subject to
rehabilitation is needed.229
222
Sloan v. State, 884 So. 2d 378 (Fla. 2d DCA 2004).
223
Dejesus v. State, 862 So. 2d 847 (Fla. 4th DCA 2003).
224
State v. Miller, 888 So. 2d 76 (Fla. 5th DCA 2004).
225
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).
226
921.0026(2)(m), Fla. Stat.
227
921.0026(2)(m), Fla. Stat.
228
See State v. Kutz, So. 3d , 2015 WL 403969 (Fla. 2d DCA 2015) (a possible gambling addiction does not provide
competent, substantial evidence that defendant qualified for a drug program and could not be a basis of a downward departure under
this mitigator); also State v. Hudson, 153 So. 3d 375 (Fla. 2d DCA 2014).
229
See State v. Parker, 733 So. 2d 1074 (Fla. 5th DCA 1999).
40
The defendant was making a good faith effort to obtain or provide medical
assistance for a drug-related overdose 230
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.231
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
persons 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
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.232
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
230
921.0026(2)(n), Fla. Stat.
231
921.0026(2)(n), Fla. Stat.
232
See 2012 Florida S.B. 278, Bill Analysis and Fiscal Impact Statement, Professional St aff of t he Criminal Justice
Committee, January 10, 2012.
41
reduce or suspend the sentence if the judge finds that the defendant rendered such substantial
assistance.233 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.234 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.235
Non-statutory mitigating circumstances
A court can properly enter a departure sentence for a factor that is not specifically enumerated
in the sentencing statutes.236 The list of statutory grounds for both upward and downward departure
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.237 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.238
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.239
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
233
893.135(4), Fla. Stat.; see also, State v. Taylor, 411 So. 2d 993 (Fla. 4th DCA 1982).
234
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), cause dismissed, 657 So. 2d 1163 (Fla. 1995); Travis v. State,
724 So. 2d 119, 12021 (Fla. 1st DCA 1998).
235
Arzola v. State, 994 So. 2d 1209 (Fla. 5th DCA 2008).
236
McCorvey v. State, 872 So. 2d 395 (Fla. 1st DCA 2004).
237
Franquiz v. State, 682 So. 2d 536, 538 (Fla. 1996); State v. Randall, 746 So. 2d 550, 552 (Fla. 5th DCA 1999).
238
State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998).
239
Israel v. State, 837 So. 2d 381 (Fla. 2002).
42
mitigators that may be considered by a sentencing court.240 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.241
The defense is required to identify for the court specific nonstatutory mitigating
circumstances it is attempting to establish as a basis for departure.242 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 not delineated in section 921.0026, so long as the reason given is supported by
competent, substantial evidence and not otherwise prohibited.243
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.244 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.245 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
240
See, e.g., Campbell v. State, 571 So. 2d 415 (Fla. 1990).
241
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).
242
See, Lucas v. State, 568 So. 2d 18 (Fla. 1990).
243
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).
244
Rita v. U.S., 551 U.S. 338, 127 S. Ct. 2456, 168 L. Ed. 2d 203 (2007).
245
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).
43
by the Florida Legislature and case law interpretations, is not a valid ground for departure from
Floridas Criminal Punishment Code.246
Regardless, in evaluating a nonstatutory mitigating circumstance, a reviewing court must
consider the reasons given in light of the stated legislative sentencing policy.247 Because the first
purpose of sentencing is to punish, a downward departure from the permissible sentence is
discouraged and adequate justification is required.248
Enticement
To entice a person typically means to attract that person artfully or adroitly or by arousing
hope or desire; to tempt.249 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.250 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.251
246
State v. Bowman, 123 So. 3d 107 (Fla. 1st DCA 2013).
247
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).
248
State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998).
249
See Grohs v. State, 944 So. 2d 450 (Fla. 4th DCA 2006), cause dismissed, 993 So. 2d 512 (Fla. 2008); Travis v. State,
724 So. 2d 119, 12021 (Fla. 1st DCA 1998).
250
State v. Simmons, 80 So. 3d 1089 (Fla. 4th DCA 2012).
251
44
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.252
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.
Sentencing entrapment
Although the doctrine of sentencing entrapment may be relied upon to depart from the
Federal Sentencing Guidelines,253 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.254 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 defendant's
sentencing range.255 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. 256 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
252
253
U.S. v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996).
254
See, U.S. v. Barth, 990 F.2d 422, 424 (8th Cir. 1993); U.S. v. Rogers, 982 F.2d 1241, 1245 (8th Cir. 1993).
255
See, U.S. v. Hulett, 22 F.3d 779 (8th Cir. 1994).
256
See, U.S. v. Berg, 178 F.3d 976 (8th Cir. 1999).
45
resources for selling the larger amount he or she was entrapped into selling.257 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.258
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
sentence.2 5 9 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.260
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 courts 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
coconspirators? 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
257
U.S. v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996).
258
See, Ford v. State, 99 Ark. App. 119, 257 S.W.3d 560 (2007).
259
U.S. v. Shephard, 4 F.3d 647, 649 (8th Cir. 1993).
260
See, U.S. v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996); also, U.S. v. Calva, 979 F.2d 119 (8th Cir. 1992).
46
would have received in the absence of sentence manipulation.261 Most other state and federal courts
reject sentence manipulation or sentencing entrapment, as articulated in the Steadman decision.262
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.263 The
defendant must do more than simply show that, as a result of the governments participation, the
crime was prolonged beyond the first criminal act, or exceeded in degree or kind what the defendant
had done before.264 Rather, the defendant must demonstrate that the governments activities were
carried to such a degree that the governments conduct must be viewed as extraordinary
misconduct265 or egregious . . . conduct that goes beyond legitimate police investigative
purposes.266
Lower sentence of an equally or more culpable codefendant
As a general principle, co-defendants should not be treated differently on the same or similar
facts.
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.268 Mere proportionality with a co-defendants
sentence does not, however, justify a downward departure.269 While upward departures under the
267
261
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 s ent ence 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).
262
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.
263
See, U.S. v. Gibbens, 25 F.3d 28 (1st Cir. 1994).
264
See, U.S. v. Montoya, 62 F.3d 1 (1st Cir. 1995).
265
See, U.S. v. Montoya, 62 F.3d 1 (1st Cir. 1995).
266
See, State v. Soto, 562 N.W.2d 299 (M inn. 1997).
267
Slater v. State, 316 So. 2d 539 (Fla. 1975).
268
Sanders v. State, 510 So. 2d 296 (Fla. 1987).
269
State v. Leverett, 44 So. 3d 634 (Fla. 5th DCA 2010).
47
former guidelines may not be justified solely in order to match the sentence of a codefendant,270 a
downward departure under the former guidelines or Criminal Punishment Code may be imposed for
that reason.271
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.27 2 This means that, under appropriate circumstances and with
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 amp le evidence that the defendant suffers from diminished mental capacity as well as
significant physical problems. The defendant scored 68 and 70 on his IQ tes ts. 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, wh o 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.273
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.274
270
Von Carter v. State, 468 So. 2d 276 (Fla. 1st DCA 1985); Thomas v. State, 461 So. 2d 274 (Fla. 5th DCA 1985).
271
See, State v. Fernandez, 927 So. 2d 939 (Fla. 3d DCA 2006); M archetta v. State, 766 So. 2d 1126 (Fla. 2d DCA 2000).
272
Chestnut v. State, 538 So. 2d 820, 825 (Fla. 1989).
273
State v. Williams, 870 So. 2d 938 (Fla. 5th DCA 2004).
274
State v. Williams, 870 So. 2d 938 (Fla. 5th DCA 2004).
48
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.275
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 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.276
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.
275
See, U.S. v. Kim, 364 F.3d 1235 (11th Cir. 2004).
276
State v. Montanez, 133 So. 3d 1151 (Fla. 4th DCA 2014).
49
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.277
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,
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.278
Nexus to offense
Generally, mitigating circumstances supporting a downward departure ameliorate the level
of the defendants culpability.279 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.280 The defense is required to identify for the court
specific nonstatutory mitigating circumstances it is attempting to establish.281
277
State v. Strawser, 921 So. 2d 705 (Fla. 4th DCA 2006).
278
State v. Strawser, 921 So. 2d 705 (Fla. 4th DCA 2006).
279
Rafferty v. State, 799 So. 2d 243, 106 A.L.R.5th 783 (Fla. 2d DCA 2001); State v. DAlexander, 496 So. 2d 1007, 1008
(Fla. 2d DCA 1986).
280
See, Cox v. State, 819 So. 2d 705 (Fla. 2002) (penalty phase in a first degree murder case).
281
See, Lucas v. State, 568 So. 2d 18 (Fla. 1990).
50
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.282
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
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.283 This means that substance abuse
or addiction cannot be the basis of a downward departure, even if couched in terms of
rehabilitation.284 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.285
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
282
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).
283
921.0026, Fla. Stat.
284
State v. Henderson, 108 So. 3d 1137 (Fla. 5th DCA 2013) and cases cited therein.
285
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).
51
be reversed.286 A trial court may not depart, in any event, from a minimum mandatory sentence
unless the prosecutor recommends otherwise.287
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 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.288
286
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) (defendants 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) (disapproved of by, State v. Chubbuck, 2014 WL 2765926 (Fla. 2014)); Travis v. State, 724 So. 2d 119, 12021 (Fla. 1st DCA
1998) (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 s t at e p rison, 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).
287
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).
288
State v. Szempruch, 935 So. 2d 66 (Fla. 2d DCA 2006).
52
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).289
Disagreement on the part of the sentencing judge with the jurys verdict.290
The absence of a prior criminal record or criminal involvement for a period of time.291
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.292
The defendants lack of criminal activity since his or her arrest for the charged offense or
offenses.293
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. State294
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 the facts of the case, is clearly
an expression of judicial dissatisfaction with the recommended guidelines sentence and
cannot be a basis for departure. 2 95 More specifically, a trial court may not depart downward
289
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).
290
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).
291
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).
292
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).
293
State v. Robinson, 149 So. 3d 1199 (Fla. 1st DCA 2014).
294
Scott v. State, 508 So. 2d 335, 337 (Fla. 1987).
295
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).
53
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.296 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.297
A finding that there is no redeeming value sending the defendant to prison.298
The presumptive minimum sentence exceeds the statutory maximum for the offense.299
In drug offenses, judicial determination that the quantity of drugs involved was
minuscule.300
The recommendation of a law enforcement officer or probation officer.301
The desire of the sentencing judge to place the defendant under supervision so that the
judge can exercise more control over the defendant.302
The fact that the defendant harmed no one and failed to commit additional crimes.303 The
absence of violence or danger to others does not constitute a valid ground for departure,
because that factor is already considered in arriving at the presumptive Criminal Punishment
Code or guidelines sentence.304
296
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).
297
State v. Lacey, 553 So. 2d 778 (Fla. 4th DCA 1989).
298
State v. Thompkins, 113 So. 3d 95 (Fla. 5th DCA 2013).
299
State v. Hall, 47 So. 3d 361 (Fla. 2d DCA 2010); 921.0024(2), Fla. Stat.
300
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).
301
See, Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988) (recommendation agains t p ris on 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).
302
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).
303
State v. Stanard, 859 So. 2d 572 (Fla. 5th DCA 2003).
304
State v. Green, 511 So. 2d 734 (Fla. 2d DCA 1987); State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985).
54
The fact that the defendant could have harmed the victim but did not,305 or committed the
offense less heinously than other defendants.306
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,307 or to punish
those with families to support less than those without families.308
The fact that the offense was committed when the defendant was a young adult.309
The fact that the defendant suffers from a physical infirmity or defect.310 Note, however,
that a departure may be granted if the defendant requires specialized treatment for a physical
disability, and the defendant is amenable to treatment.311
The fact that the defendant had never been sent to prison before.312
The defendants forthrightness with the court.313
An expressed or indicated willingness to accept punishment and pay the debt to
society.314
The willingness of the defendant to accept responsibility by entering a plea in exchange
for a downward departure sentence.315
The defendants admission of guilt and entry of an open plea. A defendants plea only
provides justification for downward departure when there has been a legitimate, uncoerced
plea bargain with the State.316
305
State v. Thompkins, 113 So. 3d 95 (Fla. 5th DCA 2013).
306
State v. Subido, 925 So. 2d 1052 (Fla. 5th DCA 2006).
307
Rafferty v. State, 799 So. 2d 243, 106 A.L.R.5th 783 (Fla. 2d DCA 2001).
308
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).
309
See, State v. McMullen, 529 So. 2d 821 (Fla. 3d DCA 1988).
310
State v. Thomas, 516 So. 2d 1058 (Fla. 3d DCA 1987) (defendants blindness in one eye).
311
Sec. 921.0026(2)(d).
312
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.).
313
State v. Thomas, 516 So. 2d 1058 (Fla. 3d DCA 1987).
314
State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985).
315
State v. Hall, 47 So. 3d 361 (Fla. 2d DCA 2010).
316
55
Saving the taxpayers money.317

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.318
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.319
Pregnancy on the part of the defendant or the defendants girlfriend or spouse.320
A defendants need to support a child outweighing the need for prison.321
Representations by defense counsel that a defendant has already received a downward
departure in another county.322
Mutual mistake as to the minimum sentencing range.323
Time served on a reversed conviction in an unrelated criminal case.324
Analogizing departure grounds found in the Federal Sentencing Guidelines that are not
found in Florida statutory law.325
The trial courts observation that the disposition of criminal cases is handled differently
in the courts county than in other areas of the state.326
317
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).
318
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).
319
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 t he color of a
defendants collar.).
320
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.).
321
State v. Chapman, 805 So. 2d 906 (Fla. 2d DCA 2001).
322
See, State v. Barnes, 753 So. 2d 605 (Fla. 2d DCA 2000).
323
State v. Fulks, 884 So. 2d 1083 (Fla. 2d DCA 2004) (mutual mistake of law is not a valid basis for departure).
324
State v. Stanton, 781 So. 2d 1129 (Fla. 3d DCA 2001).
325
State v. Hall, 47 So. 3d 361 (Fla. 2d DCA 2010).
326
56
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.327 If, however, the courts 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.328 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.329
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.330
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. 3 3 1 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.332
The Florida Supreme Court has interpreted these provision to require a trial court to provide a
327
State v. Randall, 746 So. 2d 550, 552 (Fla. 5th DCA 1999).
328
State v. Peters, 500 So. 2d 704 (Fla. 1st DCA 1987).
329
Shull v. Dugger, 515 So. 2d 748 (Fla. 1987).
330
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).
331
Fla. R. Crim. P. 3.701(b)(6).
332
921.001(6), Fla. Stat.
57
contemporaneous written explanation for the imposition of any departure sentence at a sentencing
hearing.333
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.334 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.335
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
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.336 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.337
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
333
Ree v. State, 565 So. 2d 1329 (Fla. 1990) (holding modified by, State v. Lyles, 576 So. 2d 706 (Fla. 1991)); Travis v.
State, 724 So. 2d 119, 12021 (Fla. 1st DCA 1998).
334
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).
335
Jackson v. State, 64 So. 3d 90 (Fla. 2011).
336
See, Freudenberger v. State, 940 So. 2d 551 (Fla. 2d DCA 2006); Inmon v. State, 932 So. 2d 518 (Fla. 4th DCA 2006).
337
See, Tambriz-Ramirez v. State, 112 So. 3d 767 (Fla. 4th DCA 2013).
58
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. See 5:1 et seq. 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, threetime 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.338
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.339 Another example of reclassification occurs when the defendant wears a mask while
committing the underlying offense.340
Reclassifications and enhancements operate independently of one another and are not
alternative methods of enhancement.341 As the court in Perez v. State observed, sentence
enhancement by reclassification of the crime to a higher degree increases the punishment by
authorizing a greater maximum penalty whereas imposition of a three-year mandatory minimum
sentence merely ensures a minimum period of incarceration.342 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. 3 4 3 Stated
another way, enhanced penalty crimes are still subject to the mandatory minimum sentence.344
338
See, Mills v. State, 822 So. 2d 1284 (Fla. 2002) (holding that 784.07, Fla. Stat., is a reclassification, and not an
enhancement, statute).
339
Cooper v. State, 455 So. 2d 588 (Fla. 1st DCA 1984).
340
775.0845, Fla. Stat.
341
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), decision approved, 482 So. 2d 1377 (Fla. 1986) and (abrogated by, Fenelon v. State, 594
So. 2d 292 (Fla. 1992)); Travis v. State, 724 So. 2d 119, 12021 (Fla. 1st DCA 1998); Perez v. State, 431 So. 2d 274 (Fla. 5th DCA
1983), decision approved, 449 So. 2d 818 (Fla. 1984).
342
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).
343
Gibbons v. State, 543 So. 2d 860 (Fla. 2d DCA 1989).
344
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).
59
Statutory enhancement does not make a ranked offense an unlisted offense under section 921.0023,
Fla. Stat.345
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.346 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.347 There is also no double jeopardy prohibition against applying an
enhancement to a felony that has already been reclassified.348
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.349
Enhancements and reclassifications are subject to the rule of Apprendi350 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 a reasonable doubt, unless admitted or stipulated to by the defendant. This includes all
minimum mandatory sentencing.351
Upward departure under the Criminal Punishment Code for third degree felonies that
are not forcible felonies
The general presumption under the Criminal Punishment Code (CPC) is that only those
offenders scoring 44 or less points on the sentencing scoresheet may receive a non-state prison
sanction, absent the sentencing court imposing a downward departure. A further presumption is that,
under the CPC, the sentencing judge can impose as a lawful sentence any amount of incarceration
up to the statutory maximum for any offense before the court for sentencing under the CPC. The
CPC has, in almost every aspect, eliminated the upward departure of the former determinate
345
Williams v. State, 784 So. 2d 524 (Fla. 4th DCA 2001).
346
Fussell v. State, 813 So. 2d 130 (Fla. 2d DCA 2002).
347
See, State v. Whitehead, 472 So. 2d 730 (Fla. 1985).
348
See, Roberts v. State, 923 So. 2d 578 (Fla. 5th DCA 2006).
349
Goutier v. State, 692 So. 2d 978 (Fla. 2d DCA 1997).
350
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
351
See, Alleyne v. United States, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013).
60
guidelines sentencing schemes and replaced it with an indeterminate sentencing scheme in which
the judge is free to sentence up to the statutory maximum without having to provide written reasons
for doing so.
A statutory exception to indeterminate sentencing under the CPC is found in section
775.082(10), Fla. Stat. Under that section, if a defendant is sentenced for an offense committed on
or after July 1, 2009, which is a third-degree felony but not a forcible felony as defined in section
776.08, and excluding any third-degree felony violation under chapter 810, and if the total sentence
points pursuant to section 921.0024 are 22 points or fewer, the court must sentence the defendant
to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison
sanction could present a danger to the public, the court may sentence the offender to a state
correctional facility pursuant to section 775.082.352 The danger may, at least in some cases,
encompass pecuniary or economic harm.353
It is the general rule under the CPC that when the reasons provided by the trial court for a
downward departure are found invalid on appeal, the resentencing following remand is de novo. The
Florida Supreme Court has, however, applied to section 775.082(10) upward departures the rule that
when the judge provides no written reasons for an upward departure, or the reasons provided in
support of a departure are found invalid on appeal, resentencing following remand must be to a
nonstate prison sanction. The rationale of the Florida Supreme Court in enunciating this rule is that
the better policy is to require the trial court to enunciate all of the reasons for the departure in the
original order and to prevent after-the-fact justifications for a previously imposed departure
sentence.354
352
775.082(10), Fla. Stat.
353
Porter v. State, 110 So. 3d 962 (Fla. 4th DCA 2013), case dismissed, 137 So. 3d 1021 (Fla. 2014); Travis v. State, 724
So. 2d 119, 12021 (Fla. 1st DCA 1998) (Nonstate prison sentence would pose a danger to the community and a five-year prison
sentence was justified under Sec. 775.082(10), Fla. Stat., where defendant convicted of grand theft by check scored 14.7 points on
his Criminal Punishment Code scoresheet and had a prior criminal history comprising convictions for five felony worthless check
charges, four misdemeanor worthless check charges, and one grand theft charge.); McCloud v. State, 55 So. 3d 643 (Fla. 5th DCA
2011), citing U.S. v. Reynolds, 956 F.2d 192, 19293 (9th Cir. 1992); see U.S. v. Provenzano, 605 F.2d 85, 95 (3d Cir. 1979)
(explaining that danger is not limited to physical harm; concept includes opportunity to exercise substantial and corrupting influence
within labor union); U.S. v. Parr, 399 F. Supp. 883, 888 (W.D. Tex. 1975) (The danger to the community provision [in the Bail
Reform Act] permits consideration of the defendants propensity to commit crime generally, even where only pecuniary and not
physical, harm might result to the community at large.); see also U.S. v. Moss, 522 F. Supp. 1033, 1035 (E.D. Pa. 1981), affd, 688
F.2d 826 (3d Cir. 1982); U.S. v. Miranda, 442 F. Supp. 786, 792 (S.D. Fla. 1977) (It is generally agreed, of course, that a [c]ourt
may refuse bail on the ground that a defendant poses a threat to the community even though the threat is pecuniary rather than
physical.) (First, it is beyond dispute that the criterion of danger to the community, which is an explicit component of the Bail
Reform Act, is not limited to the potential for doing physical harm.).
354
Bryant v. State, 148 So. 2d 1251 (Fla. 2014).
61
Proof of prior conviction

Where an enhancement of penalty or reclassification of offense requires proof of a certain
prior conviction, the level of proof is beyond a reasonable doubt. The most common method of
proof is the introduction in evidence of a certified copy of the judgment for the prior offense in
substantial compliance with Fla. R. Crim. P. 3.986.355 Prior to the creation of Rule 3.986, the State
was required to submit the whole record of the prior conviction to prove its existence, the whole
record including the information, the plea of the accused, the jurisdiction of the court, the verdict
of the jury, and the judgment and sentence of the court.356 In recidivist driving cases, a certified
copy of the defendants driving record may be considered as sufficient proof of prior convictions for
driving while license suspended or revoked and driving under the influence.357 Voluntary admissions
are also sufficient proof, as are knowing and voluntary stipulations to prior conviction.
Problems of proof can arise, however, where the qualifying prior conviction was the result
of a plea not reduced to a judgment in substantial compliance with Rule 3.986 (as where the
judgment does not contain the fingerprints of the defendant), or where the defendant contests the
element of identity. Where the prior judgment contains fingerprints, the State can meet its burden
of proof by having a latent print examiner take the defendants fingerprints, compare them with the
fingerprints on the judgment, and testify as to identity. Where there are no fingerprints on the
judgment, the State can meet its burden with any competent evidence of identity.358
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.359 Gang
355
See, Keith v. State, 844 So. 2d 715 (Fla. 2d DCA 2003).
356
Warren v. State, 74 So. 2d 688 (Fla. 1954).
357
322.201, Fla. Stat.; 316.193(12), Fla. Stat.; see also, 11 Fla. Prac., DUI Handbook 2:7 (20132014 ed.).
358
Identity can be established, as one example, through the testimony of the attorney who represented the defendant at the
time of conviction, for identity of a client is, with few exceptions, not protected by attorney-client privilege. See, Wilder v. Wilder,
993 So. 2d 182 (Fla. 2d DCA 2008). But see, Landrum v. State, 2014 WL 1795895 (Fla. 4th DCA 2014) (the possible methods
available to the State to offer proof at trial of a prior felony conviction is limited to admission of the whole record pertaining to
the previous felony conviction and a certified copy of the judgment for the prior conviction in substantial compliance with Fla. R.
Cri. P. 3.986).
359
874.03(1), Fla. Stat.
62
membership alone is not sufficient to declare a person a member of a criminal gang.360 The State
must also demonstrate a pattern of criminal gang activity.361
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, 3 62
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
which the criminal gang engages.363 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).364
A criminal gang member is a person who meets two or more of the following criteria:
1. Admits to criminal gang membership.
2. Is identified as a criminal gang member by a parent or guardian.
3. Is identified as a criminal gang member by a documented reliable informant.
4. Adopts the style of dress of a criminal gang.
5. Adopts the use of a hand sign identified as used by a criminal gang.
6. Has a tattoo identified as used by a criminal gang.
7. Associates with one or more known criminal gang members.
8. Is identified as a criminal gang member by an informant of previously untested reliability
and such identification is corroborated by independent information.
9. Is identified as a criminal gang member by physical evidence.
10. 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.
11. Has authored any communication indicating responsibility for the commission of any
crime by the criminal gang.365
360
See, S.L. v. State, 708 So. 2d 1006 (Fla. 2d DCA 1998).
361
Ariano v. State, 961 So. 2d 366 (Fla. 4th DCA 2007); see, S.L. v. State, 708 So. 2d 1006 (Fla. 2d DCA 1998).
362
874.03(1)(a), Fla. Stat.
363
874.03(1)(b), Fla. Stat.
364
874.03(2), Fla. Stat.
365
874.03(3), Fla. Stat.
63
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.
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 persons own standing or position within a criminal gang;366 (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;367 (c) an activity that is identified
as criminal gang activity by a documented reliable informant;368 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.369 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.370 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.371 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.372
Upon a finding by the fact- finder 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.373 A misdemeanor of the second degree may be punished as if it
366
874.03(4)(a), Fla. Stat.
367
874.03(4)(b), Fla. Stat.
368
874.03(4)(c), Fla. Stat.
369
874.03(4)(d), Fla. Stat.
370
874.03(5), Fla. Stat.
371
874.03(6), Fla. Stat.
372
874.03(7), Fla. Stat.
373
874.04, Fla. Stat.
64
were a misdemeanor of the first degree.374 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 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).375 A felony of the third degree may be punished
as if it were a felony of the second degree.376 A felony of the second degree may be punished as if
it were a felony of the first degree.377 A felony of the first degree may be punished as if it were a life
felony.378 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).379
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 775.084.380 This
provision does not apply to a person convicted of a felony whose civil rights and firearm authority
have been restored.381
374
874.04(1)(a), Fla. Stat.
375
874.04(1)(b), Fla. Stat.
376
874.04(2)(a), Fla. Stat.
377
874.04(2)(b), Fla. Stat.
378
874.04(2)(c), Fla. Stat.
379
874.04, Fla. Stat.
380
790.23(4), Fla. Stat.
381
790.23(2), Fla. Stat.
65
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,
punishable as provided in section 775.082, section 775.083, or section 775.084,382 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 775.084.383 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 775.084,384 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 775.084.385
Note that nothing in chapter 874 prohibits the arrest and prosecution of a criminal gang
member under chapter 876, chapter 895, chapter 896, section 893.20, or any other applicable
provision of law except to the extent otherwise prohibited pursuant to a statutory or constitutional
provision.386
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:
382
874.05(1)(a), Fla. Stat.
383
874.05(1)(b), Fla. Stat.
384
874.05(2)(a), Fla. Stat.
385
874.05(2)(b), Fla. Stat.
386
874.045, Fla. Stat.
66
1. Enter upon, or be or appear upon any lane, walk, alley, street, road, highway, or other
public way in this state;387
2. Enter upon, or be, or appear upon or within the public property of any municipality or
county of the state;388
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;389
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.390
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;391
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;392
3. With the intent to intimidate, threaten, abuse, or harass any other person;393 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.394
The exemptions from these provisions are as follows:
387
876.12, Fla. Stat.
388
876.13, Fla. Stat.
389
876.14, Fla. Stat.
390
876.15, Fla. Stat.
391
876.155(1), Fla. Stat.
392
876.155(2), Fla. Stat.
393
876.155(3), Fla. Stat.
394
876.155(4), Fla. Stat.
67
1. Any person or persons wearing traditional holiday costumes;395

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;396
3. Any person or persons using masks in theatrical productions, including use in Gasparilla
celebrations and masquerade balls;397
4. Persons wearing gas masks prescribed in emergency management drills and exercises.398
The violation of sections 876.12876.15, except as provided in section 876.16, is a
misdemeanor of the second degree.399
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. 4 0 0 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.401
In the case of a felony of the third degree, the offense is reclassified to a felony of the second
degree.402 In the case of a felony of the second degree, the offense is reclassified to a felony of the
first degree.403 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.404
395
876.16(1), Fla. Stat.
396
876.16(2), Fla. Stat.
397
876.16(3), Fla. Stat.
398
876.16(4), Fla. Stat.
399
876.21, Fla. Stat.
400
775.0845(1)(a), Fla. Stat.
401
775.0845(1)(b), Fla. Stat.
402
775.0845(2)(a), Fla. Stat.
403
775.0845(2)(b), Fla. Stat.
404
775.0845, Fla. Stat.
68
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 co-defendant or co-defendants.405 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.406
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.407 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.408
Advanced age means that the victim is older than 65 years of age.409 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.410
A misdemeanor of the second degree is reclassified to a misdemeanor of the first degree.411
A misdemeanor of the first degree is reclassified to a felony of the third degree.412 A felony of the
third degree is reclassified to a felony of the second degree.413 A felony of the second degree is
405
Wright v. State, 810 So. 2d 873 (Fla. 2002); see, State v. Rodriguez, 602 So. 2d 1270 (Fla. 1992).
406
407
775.085(1)(a), Fla. Stat.
408
775.085(1)(b)1, Fla. Stat.
409
775.085(1)(b)2, Fla. Stat.
410
775.085(1)(b)3, Fla. Stat.
411
775.085(1)(a)1, Fla. Stat.
412
775.085(1)(a)2, Fla. Stat.
413
775.085(1)(a)3, Fla. Stat.
69
reclassified to a felony of the first degree.414 A felony of the first degree is reclassified to a life
felony.415
Section 775.085(1) applies only to bias-motivated crimes.416 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.417 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.418 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.419 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.420
Sexual battery by multiple perpetrators
Section 794.023, Florida's 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,421 and a felony of the first degree is reclassified to a life felony.422 Section 794.023 applies
414
775.085(1)(a)4, Fla. Stat.
415
775.085(1)(a)5, Fla. Stat.
416
Groover v. State, 632 So. 2d 691 (Fla. 1st DCA 1994).
417
State v. Stalder, 630 So. 2d 1072 (Fla. 1994).
418
See, Bass v. State, 739 So. 2d 1243 (Fla. 5th DCA 1999); Richards v. State, 643 So. 2d 89 (Fla. 3d DCA 1994).
419
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).
420
Freudenberger v. State, 940 So. 2d 551 (Fla. 2d DCA 2006).
421
794.023(2)(a), Fla. Stat.
422
794.023(2)(b), Fla. Stat.
70
to principals.423 It does not apply to attempts.424 It does not apply, in any event, to life felonies or
capital felonies.425 For purposes of sentencing under chapter 921 and determining incentive gaintime 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.426 In order to avail itself of this enhancement, the State must specifically charge the
defendant under section 794.023.427
The operation of this statute against principals is illustrated by the case of Melvin Taylor.
Taylor and a co- defendant 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 co-defendant 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 co-defendant raped her. The two then reversed roles, and
in the process the victims arms were cut. An examining physician testified that the victim's 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,
423
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 co-defendants sexual battery).
424
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).
425
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).
426
794.023, Fla. Stat.
427
Gordon v. State, 599 So. 2d 1048 (Fla. 5th DCA 1992).
71
as a principal in the first degree to the co- defendants sexual battery, Taylors conviction was
properly enhanced.428
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 775.084.429 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.430
2. In the case of a felony of the second degree, to a felony of the first degree.431
3. In the case of a felony of the third degree, to a felony of the second degree.432
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.433
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.434
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 775.083.435
428
429
775.0875(1), Fla. Stat.
430
775.0875(1)(a)1, F.S.
431
775.0875(1)(a)2, F.S.
432
775.0875(1)(a)3, F.S.
433
775.0875(1)(a), Fla. Stat.
434
775.0875(1)(b), Fla. Stat.
435
775.0875(1)(b), Fla. Stat.
72
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:
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.436 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 775.083.437
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.438
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.439 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.440 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 lesserincluded 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,441 sexual battery, and murder, may provide the necessary predicate for
436
784.03(1)(a), Fla. Stat.
437
784.03(1), Fla. Stat.
438
784.03(2), Fla. Stat.
439
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).
440
Aldacosta v. State, 41 So. 3d 1096 (Fla. 2d DCA 2010).
441
See, Barnett v. State, 45 So. 3d 963 (Fla. 3d DCA 2010).
73
reclassification under this scheme. 4 4 2 Note that, in cases where simple battery is a lesser-included
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. 4 43
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,444 a firefighter,445 an emergency medical care provider,446 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
442
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 Repeat Battery Offenders: Warren and the 2001
A mendment t o F elony Bat t ery , LX X VI N o. 4 F la. B.J . 37 (A pr. 2002), found online at
http://www.floridabar.org/DIVCOM /JN/JNJournal01.nsf/Author/21866A140F13BF9D85256B870057AC04.
443
See, Cox v. State, 988 So. 2d 1236 (Fla. 5th DCA 2008).
444
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 t he 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.
445
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.
446
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 hospitals emergency department or the security thereof. 784.07(1)(a), Fla. Stat.
74
officer, inspector, analyst, operator, a law enforcement explorer, parking enforcement specialist,
public transit employee or agent,447 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.448
2. In the case of battery, from a misdemeanor of the first degree to a felony of the third
degree.449
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.450
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.451
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.452
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.453
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
447
Public transit employees or agents means bus operators, train operators, revenue collectors, security p ers onnel,
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.
448
784.07(2)(a), Fla. Stat.
449
784.07(2)(b), Fla. Stat.
450
784.07(2)(b), Fla. Stat.
451
784.07(2)(d), Fla. Stat.
452
784.07(3)(a), Fla. Stat.
453
784.07(3)(b), Fla. Stat.
75
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.454
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:
degree.455
2. In the case of an aggravated assault, from a felony of the third degree to a felony of the
second degree.456
degree.457
first degree.458
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.459
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
454
784.07, Fla. Stat.
455
784.074(1)(a), Fla. Stat.
456
784.074(1)(b), Fla. Stat.
457
784.074(1)(c), Fla. Stat.
458
784.074(1)(d), Fla. Stat.
459
784.074(2), Fla. Stat.
76
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.460
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.461
Battery of facility employee by throwing, tossing, or expelling certain fluids or
materials
It is unlawful for any person, while being detained in a facility462 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 employee463 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.464 Any person who violates paragraph
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 775.084.465
460
784.075, Fla. Stat.
461
784.076, Fla. Stat.
462
As used in section 784.078, the term facility means a state correctional institution defined in section 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.
463
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 p art II of chapter 946.
Employee includes any person who is a parole examiner with the Florida Parole Commission. 784.078(2)(a), Fla. Stat.
464
784.078(3)(a), Fla. Stat.
465
784.078(3)(b), Fla. Stat.
77
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.466 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:
467
degree.
second degree.468
469
degree.
first degree.470
Notwithstanding the provisions of section 948.01, adjudication of guilt or imposition of
sentence can not be suspended, deferred, or withheld.471
Assault or battery on specified officials or employees
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
466
784.08(1), Fla. Stat.
467
784.08(2)(a), Fla. Stat.
468
784.08(2)(b), Fla. Stat.
469
784.08(2)(c), Fla. Stat.
470
784.08(2)(d), Fla. Stat.
471
784.08(3), Fla. Stat.
78
entity of the state system of public education, as defined in section 1000.04; a sports ofcial;472 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:
473
degree.
second degree.474
degree.475
first degree.476
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.477
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:
472
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.
473
784.081(2)(a), Fla. Stat.
474
784.081(2)(b), Fla. Stat.
475
784.081(2)(c), Fla. Stat.
476
784.081(2)(d), Fla. Stat.
477
784.081(3), Fla. Stat.
79
degree.478
second degree.479
degree.480
first degree.481
Assault or battery on code inspectors
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:
degree.482
second degree.483
484
degree.
first degree.485
478
784.082(1), Fla. Stat.
479
784.082(2), Fla. Stat.
480
784.082(3), Fla. Stat.
481
784.082(4), Fla. Stat.
482
784.083(1), Fla. Stat.
483
784.083(2), Fla. Stat.
484
784.083(3), Fla. Stat.
485
784.083(4), Fla. Stat.
80
Burglary across county lines

If a person who commits a burglary travels any distance with the intent to commit the
burglary in a county in Florida other than the persons county of residence, the degree of the burglary
must be reclassified to the next higher degree if the purpose of the persons travel is to thwart law
enforcement attempts to track the items stolen in the burglary. For purposes of sentencing under
chapter 921 and determining incentive gain-time eligibility under chapter 944, a burglary that is
reclassified under section 843.22 is ranked one level above the ranking specified in section 921.0022
or section 921.0023 for the burglary committed.486 Burglary in this sense means burglary as
defined in section 810.02, including an attempt, solicitation, or conspiracy to commit such offense. 4 8 7
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. 4 88 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
486
843.22(2), Fla. Stat.
487
843.22(1)(b), Fla. Stat.
488
810.02(3), Fla. Stat.
489
810.02(4), Fla. Stat.
81
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
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
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
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.
490
812.014(2)(c), Fla. Stat.
491
812.014(2)(b)3, Fla. Stat.
492
812.014(2)(b)4, Fla. Stat.
493
812.014(2)(b)4, Fla. Stat.
82
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
Enhancement of penalty and reclassification of offenseSexual offenses against
students by authority figures
The felony degree of a violation of an offense listed in section 943.0435(1)(a)1.a, unless the
offense is a violation of section 794.011(4)(g) or section 810.145(8)(a)2., must be reclassified as
provided in section 775.0862 if the offense is committed by an authority figure of a school against
a student of the school.495 Authority figure means a person 18 years of age or older who is
employed by, volunteering at, or under contract with a school. 4 9 6 School has the same meaning
as provided in section 1003.01 and includes a private school as defined in section 1002.01, a
voluntary pre-kindergarten education program as described in section 1002.53(3), early learning
programs, a public school as described in section 402.3025(1), the Florida School for the Deaf and
the Blind, the Florida Virtual School established under section 1002.37, and a K-8 Virtual School
established under section 1002.415. The term does not include facilities dedicated exclusively to the
education of adults.497 Student means a person younger than 18 years of age who is enrolled at a
school.498
In the case of a felony of the third degree, the offense is reclassified to a felony of the second
degree.
In the case of a felony of the second degree, the offense is reclassified to a felony of the
500
first degree.
In the case of a felony of the first degree, the offense is reclassified to a life felony.501
chapter 944, a felony offense that is reclassified under section 776.0682 is ranked one level above
the ranking under section 921.0022 or section 921.0023 of the offense committed.502
49 9
494
775.0847(2), Fla. Stat.
495
775.0862(2), Fla. Stat.
496
775.0862(1)(a), Fla. Stat.
497
775.0862(1)(b), Fla. Stat.
498
775.0862(1)(c), Fla. Stat.
499
775.0862(3)(a), Fla. Stat.
500
775.0862(3)(b), Fla. Stat.
501
775.0862(3)(c), Fla. Stat.
502
775.0862, Fla. Stat.
83
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 owners 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.503 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.504 Filer means the person
who presents an instrument for recording in an official record, or causes an instrument to be
presented for recording in an official record.505 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.506 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.507
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.508
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:
1. In the case of a felony of the third degree, to a felony of the second degree, punishable as
503
817.535(2)(a), Fla. Stat.
504
817.535(1)(a), Fla. Stat.
505
817.535(1)(b), Fla. Stat.
506
817.535(1)(c), Fla. Stat.
507
817.535(1)(d), Fla. Stat.
508
817.535(2)(b), Fla. Stat.
509
817.535(3)(a), Fla. Stat.
84
2. In the case of a felony of the second degree, to a felony of the first degree, punishable as
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;5 11 (2) an employee of a state, county, municipal,
political subdivision, school district, educational institution, or special district agency or entity,
including judges, attorneys, law enforcement officers, deputy clerks of court, and marshals;512 (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;513 (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;514 and (5) a person
who is a candidate for public office or judicial position.515
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 post-release
supervision, the offense must be reclassified as follows:
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
510
817.535(3)(b), Fla. Stat.
511
817.535(1)(e)1, Fla. Stat.
512
817.535(1)(e)2, Fla. Stat.
513
817.535(1)(e)3, Fla. Stat.
514
817.535(1)(e)4, Fla. Stat.
515
817.535(1)(e)5, Fla. Stat.
516
817.535(4)(a)1, Fla. Stat.
517
817.535(4)(a)2, Fla. Stat.
85
action and forfeiture of all gain time or any early release credits accumulated up to the date of the
violation.518
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:
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.521
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.522
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.523
518
817.535(4)(b), Fla. Stat.
519
817.535(5)(a), Fla. Stat.
520
817.535(5)(b), Fla. Stat.
521
817.535(6), Fla. Stat.
522
817.535(7), Fla. Stat.
523
817.535(8)(a), Fla. Stat.
86
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
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.524
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).525
3. The court may grant such other relief or remedy that the court determines is just and
proper within its sound judicial discretion.526
The prevailing party in such a suit is entitled to recover costs and reasonable attorney fees.527
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 persons 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.528
524
817.535(8)(b)1, Fla. Stat.
525
817.535(8)(b)2, Fla. Stat.
526
817.535(8)(b)3, Fla. Stat.
527
817.535(8)(c), Fla. Stat.
528
817.535(8)(d), Fla. Stat.
87
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.529
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.530
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.531
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.532
Section 817.535 does not apply to the procedures for sealing or expunging criminal history
records as provided in chapter 943.533
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
529
817.535(8)(e), Fla. Stat.
530
817.535(8)(f), Fla. Stat.
531
817.535(8)(g), Fla. Stat.
532
817.535(9), Fla. Stat.
533
817.535(10), Fla. Stat.
88
information, or another person who was present when that person gave that information to the officer
and heard that information;534 or
2. The information the person gave to the law enforcement officer was communicated in
535
writing.
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.536
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.537 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.538 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).539
534
837.05(1)(b)1, Fla. Stat.
535
837.05(1)(b)2, Fla. Stat.
536
837.05(2), Fla. Stat.
537
828.12(2), Fla. Stat.
538
828.12(2)(a), Fla. Stat.
539
828.12(2)(b), Fla. Stat.
89
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.540
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.5 4 1 It does not offend double
jeopardy principles to resentence a defendant to a harsher term when the original sentence was
invalid.542 Only the State Attorney has the discretion to waive the minimum mandatory sentence.543
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.544
Generally, although the state attorney can waive a minimum mandatory sentence, the state attorney
cannot grant a reduction of the minimum mandatory.545
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
540
Fla. R. Crim. P. 3.704(d)(26).
541
Dunbar v. State, 89 So. 3d 901 (Fla. 2012).
542
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); Travis v. State, 724 So. 2d 119, 12021 (Fla. 1st DCA 1998); 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).
543
See, e.g., 27.366 and 775.087(5), Fla. Stat. (firearms); 893.135(4), Fla. Stat. (drug trafficking).
544
State v. Vanderhoff, 14 So. 3d 1185 (Fla. 5th DCA 2009).
545
Figuerreo v. State, 42 So. 3d 887 (Fla. 3d DCA 2010).
90
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.546
Minimum mandatory sentences implicate Apprendi considerations.
Constitution requires juries to find facts that trigger mandatory punishment.547
The United States
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. 5 4 8 Absent specific
legislative authorization, minimum mandatory enhancement sentences arising from a single criminal
episode must run concurrently pursuant to the Florida Supreme Courts decision in Hale v . State.549
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.550 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.551
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 775.082.5 5 2
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
546
Mastay v. McDonough, 928 So. 2d 512 (Fla. 1st DCA 2006).
547
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, 186 L. Ed. 2d 314 (2013)) and McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986).
548
Kelly v. State, 964 So. 2d 135 (Fla. 2007).
549
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).
550
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).
551
Elozar v. State, 872 So. 2d 934 (Fla. 5th DCA 2004).
552
Mendenhall v. State, 48 So. 3d 740 (Fla. 2010).
91
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.553 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.554 Note that
the First District Court of Appeal, which has held that circuit courts in that district may, pursuant to
the 10-20-Life statute, impose a sentence in addition to its selected mandatory minimum sentence
without regard to whether additional statutory authority for such an additional sentence exists,555 has
certified conflict with the Second,556 Fourth,557 and Fifth558 Districts which have held that the trial
court may not impose a sentence in excess of 30 years for a first degree felony under the 10-20-Life
statute when the court imposes a mandatory minimum of less than 30 years.
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:
Capital felonies 559
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
553
554
See, Sheppard v. State, 113 So. 3d 148 (Fla. 2d DCA 2013).
555
Hatten v. State, 152 So. 3d 849 (Fla. 1st DCA 2014), citing Kelly v. State, 137 So. 3d 2, 6-7 (Fla. 1st DCA 2014).
556
Martinez v. State, 114 So. 3d 1119, 1120 (Fla. 2d DCA 2013); Sheppard v. State, 113 So. 3d 148, 149 (Fla. 2d DCA
2013); Prater v. State, 113 So. 3d 147-48 (Fla. 2d DCA 2013).
557
Levine v. State, So. 3d , 2014 WL 5149098 (Fla. 4th DCA 2014); Antoine v. State, 138 So. 3d 1064, 1078 (Fla.
4th DCA 2014); Walden v. State, 42 So. 3d 660, 661 (Fla. 4th DCA 2013).
558
Wooden v. State, 42 So. 3d 837 (Fla. 5th DCA 2010); Roberts v. State, So. 3d , 2013 WL 6687751 (Fla. 5 th DCA
Dec. 20, 2013); Mcleod v. State, 52 So. 3d 784 (Fla. 5th DCA 2010).
559
775.082(1) and (2), Fla. Stat.
92
constitution of the United States.560 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.561
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 persons natural life, as provided in section 948.012(4).562 Note that the provision for 25 years
imprisonment is a minimum mandatory sentence.563
Prison releasee reoffender564
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; for 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, infra.
Dangerous sexual felony offender565
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)
560
775.08(1)(a), 775.082(1) and (2), Fla. Stat.
561
775.082(3)(a)4.b, Fla. Stat.
562
775.081(b), 775.082(3)(a), Fla. Stat.
563
Rochester v. State, 140 So. 3d 973 (Fla. 2014).
564
775.082(9), Fla. Stat.
565
794.0115(2)(e) and (6), Fla. Stat.
93
under section 794.0115 must be sentenced to a mandatory minimum term of 25 years imprisonment
up to, and including, life imprisonment. If the offense described in this subsection was committed
on or after October 1, 2014, a person who qualifies as a dangerous sexual felony offender pursuant
to subsection 794.0115(2) must be sentenced to a mandatory minimum term of 50 years
imprisonment up to, and including, life imprisonment.566 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 794.0115.567 DSFO sentencing is explained in greater detail, infra.
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.568
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.569
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 and 499, a person may not sell, manufacture, or deliver,
or possess with intent to sell, manufacture, or deliver, a controlled substance. A person who violates
this provision with respect to:
566
794.0115(2)(e), Fla. Stat.
567
794.0115(6), Fla. Stat.
568
790.23, Fla. Stat.
569
775.087, Fla. Stat.
94
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,
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 775.084.571
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 775.083.572
Except as provided in chapter 893, a person may not 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. A person who violates section 893.13(1)9b) commits
a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section
775.084.573
Except as authorized by chapter 893, a person may not 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. As used in section 893.1391)(c), the
term community center means a facility operated by a nonprofit community-based organization
for the provision of recreational, social, or educational services to the public.574 A person who
violates section 893.13(1)(c) with respect to:
(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
570
893.13(1)(a)1, Fla. Stat.
571
893.13(1)(a)2, Fla. Stat.
572
893.13(1)(a)3, Fla. Stat.
573
893.13(1)(b), Fla. Stat.
574
893.13(1)(c), Fla. Stat.
95
imprisonment of 3 calendar years unless the offense was committed within 1,000 feet of the real
property comprising a child care facility as defined in section 402.302.575
(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 775.084.576
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.577
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 2 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.578
of the real property comprising a public or private college, university, or other postsecondary
educational institution.579 A person who violates section 893.13(1)(d) with respect to:
(2)(b), or (2)(c)4., commits a felony of the first degree, punishable as provided in section 775.082,
575
893.13(1)(c)1., Fla. Stat.
576
893.13(1)(c)2., Fla. Stat.
577
893.13(1)(c)3., Fla. Stat.
578
893.13(1)(c), Fla. Stat.
579
893.13(1)(d), Fla. Stat.
580
893.13(1)(d)1., Fla. Stat.
581
893.13(1)(d)2., Fla. Stat.
96
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 812.171.583 A person who violates section 893.13(1)(e) with respect to:
of the real property comprising a public housing facility at any time. As used in section 893.13(1)(f),
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 421.587 A person who violates this paragraph with respect to:
582
893.13(1)(d)3., Fla. Stat.
583
893.13(1)(e), Fla. Stat.
584
893.13(1)(e)1., Fla. Stat.
585
893.13(1)(e)2., Fla. Stat.
586
893.13(1)(e)3., Fla. Stat.
587
893.13(1)(f), Fla. Stat.
97

Except as authorized by chapter 893, a person may not 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.591 If a 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 younger than 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 5 calendar
years.592
2. The commission of the crime causes any child younger than 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.593
Except as authorized by chapter 893.13, a person may not sell, manufacture, or deliver, or
588
893.13(1)(f)1., Fla. Stat.
589
893.13(1)(f)2., Fla. Stat.
590
893.13(1)(f)3., Fla. Stat.
591
893.13(1)(g), Fla. Stat.
592
893.13(1)(g)1., Fla. Stat.
593
893.13(1)(g)2., Fla. Stat.
98
of the real property comprising an assisted living facility, as that term is used in chapter 429.594 A
person who violates this paragraph with respect to:
Except as authorized by chapters 893 and 499, a person may not to purchase, or possess with
intent to purchase, a controlled substance.597 A person who violates section 893.13(2)(a) with respect
to:
(2)(b), or (2)(c)4., commits a felony of the second degree, punishable as provided in section 775.082,
Except as provided in chapter 893, a person may not purchase more than 10 grams of any
substance named or described in section 893.03(1)(a) or (1)(b), or any combination thereof, or any
594
893.13(1)(h), Fla. Stat.
595
893.13(1)(h)1., Fla. Stat.
596
893.13(1)(h)2., Fla. Stat.
597
893.13(2)(a), Fla. Stat.
598
893.13(2)(a)1., Fla. Stat.
599
893.13(2)(a)2., Fla. Stat.
600
893.13(2)(a)3., Fla. Stat.
99
mixture containing any such substance. A 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 775.084.601
A person who delivers, without consideration, 20 grams or less 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. As used in section 893.13(3), the term cannabis does not include the resin
extracted from the plants of the genus Cannabis or any compound manufacture, salt, derivative,
mixture, or preparation of such resin.602
Except as authorized by chapter 893.13, a person 18 years of age or older may not deliver any
controlled substance to a person younger than 18 years of age, use or hire a person younger than 18
years of age 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. 6 0 3 A person who
violates section 893.13(4) with respect to:
Imposition of sentence may not be suspended or deferred, and the person so convicted may
not be placed on probation.606
A person may not 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.607 A person who violates section 893.13(5) with respect to:
601
893.13(2)(b), Fla. Stat.
602
893.13(3), Fla. Stat.
603
893.13(4), Fla. Stat.
604
893.13(4)(a), Fla. Stat.
605
893.13(4)(b), Fla. Stat.
606
893.13(4), Fla. Stat.
607
893.13(5), Fla. Stat.
100

(2)(b), or (2)(c)4 commits a felony of the second degree, punishable as provided in section 775.082,
A person may not 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 chapter 893. A person who violates section 893.13(6)(a) commits a felony of the third degree,
If the offense is the possession of 20 grams or less 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.-173., the person commits a misdemeanor of the first degree, punishable as provided
in section 775.082 or section 775.083. As used in section 893.13(6)(b), the term cannabis does
not include the resin extracted from the plants of the genus Cannabis, or any compound manufacture,
salt, derivative, mixture, or preparation of such resin, and a controlled substance described in section
893.03(1)(c)46.-50., 114.-142., 151.-159., or 166.-173., does not include the substance in a powdered
form.612
Except as provided in chapter 993.135, a person may not possess more than 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. A person who violates section 893.13(6)(c) commits a
608
893.13(5)(a), Fla. Stat.
609
893.13(5)(b), Fla. Stat.
610
893.13(5)(c), Fla. Stat.
611
893.13(6)(a), Fla. Stat.
612
893.13(6)(b), Fla. Stat.
101
felony of the first degree, punishable as provided in section 775.082, section 775.083, or section
775.084.613
Drug Trafficking
Except as authorized in Chapters 893 or 499 and notwithstanding the provisions of section
893.13:
A 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 $25,000.614
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 $50,000.615
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).616
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:
613
893.13(6)(c), Fla. Stat.
614
893.135(1)(a)1, Fla. Stat.
615
893.135(1)(a)2, Fla. Stat.
616
893.135(1)(a)3, Fla. Stat.
102
1. 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 $50,000.617
mandatory minimum term of imprisonment of seven years, and the defendant must be ordered to pay
a fine of $100,000.618
3. 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 $250,000.619
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 persons 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)1.620
A 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)1.621
617
893.135(1)(b)1.a, Fla. Stat.
618
893.135(1)(b)1.b, Fla. Stat.
619
893.135(1)(b)1.c, Fla. Stat.
620
893.135(1)(b)2, Fla. Stat.
621
893.135(1)(b)3, Fla. Stat.
103
who is knowingly in actual or constructive possession of, four grams or more of any morphine,
opium, 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:
1. 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 must be ordered to pay a fine of $50,000.622
mandatory minimum term of imprisonment of 15 years and must be ordered to pay a fine of
$100,000.623
$500,000.624
who is knowingly in actual or constructive possession of, 14 grams or more of hydrocodone, or any
salt, derivative, isomer, or salt of an isomer thereof, or 14 grams or more of any mixture containing
any such substance, commits a felony of the first degree, which felony is known as trafficking in
hydrocodone, punishable as provided in section 775.082, section 775.083, or section 775.084. If
the quantity involved:
$50,000.625
622
893.135(1)(c)1.a, Fla. Stat.
623
893.135(1)(c)1.b, Fla. Stat.
624
893.135(1)(c)1.c, Fla. Stat.
625
893.135(1)(c)2.a., Fla. Stat.
104
$100,000.626
$500,000.627
$750,000.628
who is knowingly in actual or constructive possession of, 7 grams or more of oxycodone, or any salt,
derivative, isomer, or salt of an isomer thereof, or 7 grams or more of any mixture containing any
such substance, commits a felony of the first degree, which felony is known as trafficking in
oxycodone, punishable as provided in section 775.082, section 775.083, or section 775.084. If the
quantity involved:
1. Is 7 grams or more, but less than 14 grams, such person must be sentenced to a mandatory
minimum term of imprisonment of 3 years and must be ordered to pay a fine of $50,000.629
$100,000.630
$500,000.631
626
893.135(1)(c)2.b., Fla. Stat.
627
893.135(1)(c)2.c., Fla. Stat.
628
893.135(1)(c)2.d., Fla. Stat.
629
893.135(1)(c)3.a., Fla. Stat.
630
893.135(1)(c)3.b., Fla. Stat.
631
893.135(1)(c)3.c., Fla. Stat.
105
$750,000.632
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 947.149.633 However, if the court determines that, in addition to committing
any act specified in section 893.135(1)(c)2:
1. 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
2. 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. A 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)1.634
A 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)1.635
who is knowingly in actual or constructive possession of, 28 grams or more of phencyclidine or of
632
893.135(1)(c)3.d., Fla. Stat.
633
893.135(1)(c)2, Fla. Stat.
634
893.135(1)(c)2, Fla. Stat.
635
893.135(1)(c)3, Fla. Stat.
106
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 fine of $50,000.636
a fine of $100,000.637
3. 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 $250,000.638
A 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. A person
sentenced for a capital felony under this paragraph must also be sentenced to pay the maximum fine
provided under subparagraph 1.639
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
1. Is 200 grams or more, but less than five kilograms, such person must be sentenced to a
a fine of $50,000.640
636
893.135(1)(d)1.a, Fla. Stat.
637
893.135(1)(d)1.b, Fla. Stat.
638
893.135(1)(d)1.c, Fla. Stat.
639
893.135(1)(d)2, Fla. Stat.
640
893.135(1)(e)1.a, Fla. Stat.
107
2. Is 5 kilograms or more, but less than 25 kilograms, such person must be sentenced to a
a fine of $100,000.641
3. 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 $250,000.642
A 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)1.643
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:
a fine of $50,000.644
a fine of $100,000.645
641
893.135(1)(e)1.b, Fla. Stat.
642
893.135(1)(e)1.c, Fla. Stat.
643
893.135(1)(e)2, Fla. Stat.
644
893.135(1)(f)1.a, Fla. Stat.
645
893.135(1)(f)1.b, Fla. Stat.
108
imprisonment of 15 calendar years and pay a fine of $250,000.646
A 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)1.647
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
1. Is four grams or more but less than 14 grams, such person must be sentenced to a
a fine of $50,000.648
2. 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
$100,000.649
3. 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 $500,000.650
A 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
646
893.135(1)(f)1.c, Fla. Stat.
647
893.135(1)(f)2, Fla. Stat.
648
893.135(1)(g)1.a, Fla. Stat.
649
893.135(1)(g)1.b, Fla. Stat.
650
893.135(1)(g)1.c, Fla. Stat.
109
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.:
1. 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
2. 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)1.651
who is knowingly in actual or constructive possession of, one kilogram or more of
gammahydroxybutyric 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:
1. 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 $50,000.652
2. 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 $100,000.653
651
893.135(1)(g)2, Fla. Stat.
652
893.135(1)(h)1.a, Fla. Stat.
653
893.135(1)(h)1.b, Fla. Stat.
654
893.135(1)(h)1.c, Fla. Stat.
110
A 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)1.655
who is knowingly in actual or constructive possession of, one kilogram or more of
gammabutyrolactone (GBL), as described in section 893.03(1)(d), or any mixture containing gammabutyrolactone (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:
1. Is one kilogram or more but less than five kilograms, such person must be sentenced to
2. Is five kilograms or more but less than 10 kilograms, such person must be sentenced to
pay a fine of $100,000.657
A 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)1.659
655
893.135(1)(h)2, Fla. Stat.
656
893.135(1)(i)1.a, Fla. Stat.
657
893.135(1)(i)1.b, Fla. Stat.
658
893.135(1)(i)1.c, Fla. Stat.
659
893.135(1)(i)2, Fla. Stat.
111
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:
1. Is one kilogram or more, but less than five kilograms, such person must be sentenced to
2. Is five kilograms or more, but less than 10 kilograms, such person must be sentenced to
pay a fine of $100,000.661
A person who knowingly manufactures or brings into Florida 150 kilograms or more of1,4Butanediol 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. A person sentenced for a capital felony under section
893.135(1)(j)2. must also be sentenced to pay the maximum fine provided under section
893.135(1)(j)1.663
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); 4Bromo- 2,5- dimethoxyamphetamine; 4- Bro mo - 2 , 5 - d ime tho xyp he ne thyla mine; 2,5Dimethoxyamphetamine; 2,5-Dimethoxy-4-ethylamphetamine (DOET); N-ethylamphetamine; NHydroxy- 3,4- methylenedioxyamphetamine; 5-Methoxy-3,4-methylenedioxyamphetamine; 4methoxyamphetamine; 4-methoxymethamphetamine; 4- Methyl-2,5- dimethoxyamphetamine; 3,4Methylenedioxy-Nethylamphetamine; 3,4-Methylenedioxyamphetamine; N,Ndimethylamphetamine;
o r 3 , 4 , 5 - Tr ime tho xya mp he ta mine , 3,4- Methylenedioxymethcathinone; q. 3 , 4 Methylenedioxypyrovalerone (MDPV); or r. Methylmethcathinone individually or analogs thereto
660
893.135(1)(j)1.a, Fla. Stat.
661
893.135(1)(j)1.b, Fla. Stat.
662
893.135(1)(j)1.c, Fla. Stat.
663
893.135(1)(j)2, Fla. Stat.
112
or isomers thereto or in any combination of or any mixture containing any such substance listed in
section 893.135(1)(k)1.a.-r., 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 775.084.664 If the quantity involved:
1. 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 must be ordered to pay a fine of
$50,000.665
mandatory minimum term of imprisonment of seven years, and must be ordered to pay a fine of
$100,000.666
imprisonment of 15 years and must be ordered to pay a fine of $250,000.667
A 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; 2,5Dimethoxyamphetamine; 2,5- Dimethoxy-4-ethylamphetamine (DOET); N-ethylamphetamine; NHydroxy-3,4-methylenedioxyamphetamine; 5- Methoxy- 3,4-methylenedioxyamphetamine; 4methoxyamphetamine; 4-methoxymethamphetamine; 4-Methyl-2,5-dimethoxyamphetamine; 3,4Methylenedioxy-Nethylamphetamine; 3,4-Methylenedioxyamphetamine; N,Ndimethylamphetamine;
or 3,4,5- Trimethoxyamp he ta mine , 3 , 4 - M e thyle ne d io xyme thc a thinone; q. 3,4Methylenedioxypyrovalerone (MDPV); or r. Methylmethcathinone individually or analogs thereto
or isomers thereto or in any combination of or any mixture containing any such substance listed in
section 893.135(1)(k)1.a.-r., 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)1.668
664
893.135(1)(k)1, Fla. Stat.
665
893.135(1)(k)2.a, Fla. Stat.
666
893.135(1)(k)2.b, Fla. Stat.
667
893.135(1)(k)2.c, Fla. Stat.
668
893.135(1)(k)3, Fla. Stat.
113
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:
1. Is one gram or more, but less than five grams, such person must be sentenced to a
a fine of $50,000.669
2. Is five grams or more, but less than seven grams, such person must be sentenced to a
a fine of $100,000.670
3. Is seven grams or more, such person must be sentenced to a mandatory minimum term
A 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)1.672
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.673
669
893.135(1)(l)1.a, Fla. Stat.
670
893.135(1)(l)1.b, Fla. Stat.
671
893.135(1)(l)1.c, Fla. Stat.
672
893.135(1)(l)2, Fla. Stat.
673
893.135(3), Fla. Stat.
114
A 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).674
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. State675 does not correctly construe legislative
intent as regards section 893.135, and that the district court opinions in State v. Hayes676 and State
v. Baxley677 correctly construe legislative intent.678
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. State679 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,680 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,
Laws of Florida.681 Taylor conflicted with the First, Third, and Fourth District Courts of Appeals
674
893.135(5), Fla. Stat.
675
Hayes v. State, 750 So. 2d 1 (Fla. 1999).
676
State v. Hayes, 720 So. 2d 1095 (Fla. 4th DCA 1998), decision quashed, 750 So. 2d 1 (Fla. 1999).
677
State v. Baxley, 684 So. 2d 831 (Fla. 5th DCA 1996) (disapproved of by, Hayes v. State, 750 So. 2d 1 (Fla. 1999)) and
(disapproved of by, State v. Wright, 753 So. 2d 1227 (Fla. 2000)).
678
893.135(7), Fla. Stat.
679
Taylor v. State, 818 So. 2d 544 (Fla. 2d DCA 2002) (disapproved of by, Franklin v. State, 887 So. 2d 1063 (Fla. 2004));
Travis v. State, 724 So. 2d 119, 12021 (Fla. 1st DCA 1998).
680
Green v. State, 839 So. 2d 748 (Fla. 2d DCA 2003), decision quashed, 887 So. 2d 1089 (Fla. 2004); Travis v. State, 724
So. 2d 119, 12021 (Fla. 1st DCA 1998).
681
See, Green v. State, 839 So. 2d 748, 750 n.1 (Fla. 2d DCA 2003), decision quashed, 887 So. 2d 1089 (Fla. 2004).
115
decisions in Hernandez-Molina v. State;682 Watson v. State;683 and State v. Franklin,684 and Green
conflicted with the Fourth Districts decision in Hersey v. State.685 The matter was finally resolved
with the issuance of the Florida Supreme Courts opinion in State v. Green,6 8 6 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.
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.687
DUI manslaughter
There is a mandatory minimum sentence of four years imprisonment for a person who is
convicted of DUI manslaughter.688
Fleeing or attempting to elude law enforcement
A defendant convicted of fleeing or attempting to elude law enforcement in violation of
section 316.1935, Fla. Stat., is subject to progressive punishment, including minimum mandatory
sentencing and loss of driver license, depending on the aggravation of the case. The progression of
punishment is as follows:
682
Hernandez-Molina v. State, 860 So. 2d 483 (Fla. 4th DCA 2003).
683
Watson v. State, 842 So. 2d 275 (Fla. 1st DCA 2003).
684
State v. Franklin, 836 So. 2d 1112 (Fla. 3d DCA 2003), decision approved, 887 So. 2d 1063 (Fla. 2004).
685
Hersey v. State, 831 So. 2d 679 (Fla. 5th DCA 2002), on rehg, (Sept. 20, 2002) and decision disapproved of, 908 So.
2d 1052 (Fla. 2005); Travis v. State, 724 So. 2d 119, 12021 (Fla. 1st DCA 1998); 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); Travis v. State, 724 So. 2d 119,
12021 (Fla. 1st DCA 1998)(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).
686
State v. Green, 887 So. 2d 1089 (Fla. 2004).
687
893.13(1)(g), Fla. Stat.
688
316.193(3)(c)3, Fla. Stat.
116
It is unlawful for the operator of any vehicle, having knowledge that he or she has been
ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail
to stop the vehicle in compliance with such order or, having stopped in knowing compliance with
such order, willfully to flee in an attempt to elude the officer, and a person who violates section
316.1935(1) commits a felony of the third degree, punishable as provided in section 775.082, section
775.083, or section 775.084.689
Any person who willfully flees or attempts to elude a law enforcement officer in an
authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings
prominently displayed on the vehicle, with siren and lights activated commits a felony of the third
Any person who willfully flees or attempts to elude a law enforcement officer in an
authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings
prominently displayed on the vehicle, with siren and lights activated, and during the course of the
fleeing or attempted eluding:
1. Drives at high speed, or in any manner which demonstrates a wanton disregard for the
safety of persons or property, commits a felony of the second degree, punishable as provided in
section 775.082, section 775.083, or section 775.084.691
2. Drives 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, including
any law enforcement officer involved in pursuing or otherwise attempting to effect a stop of the
persons vehicle, commits a felony of the first degree, punishable as provided in section 775.082,
section 775.083, or section 775.084. Notwithstanding any other provision of law, the court shall
sentence any person convicted of committing the offense described in section 316.1935(3)(b) to a
mandatory minimum sentence of 3 years imprisonment. Nothing in section 316.1935(3)(b) can
prevent a court from imposing a greater sentence of incarceration as authorized by law.692
Any person who, in the course of unlawfully leaving or attempting to leave the scene of a
crash in violation of section 316.027 or section 316.061, having knowledge of an order to stop by
a duly authorized law enforcement officer, willfully refuses or fails to stop in compliance with such
an order, or having stopped in knowing compliance with such order, willfully flees in an attempt to
elude such officer and, as a result of such fleeing or eluding:
689
316.1935(1), Fla. Stat.
690
316.1935(2), Fla. Stat.
691
316.1935(3)(a), Fla. Stat.
692
316.1935(3)(b), Fla. Stat.
117
1. Causes injury to another person or causes damage to any property belonging to another
person, commits aggravated fleeing or eluding, a felony of the second degree, punishable as provided
in section 775.082, section 775.083, or section 775.084.693
2. Causes serious bodily injury or death to another person, including any law enforcement
officer involved in pursuing or otherwise attempting to effect a stop of the persons vehicle, commits
aggravated fleeing or eluding with serious bodily injury or death, a felony of the first degree,
The felony of aggravated fleeing or eluding and the felony of aggravated fleeing or eluding
with serious bodily injury or death constitute separate offenses for which a person may be charged,
in addition to the offenses under sections 316.027 and 316.061, relating to unlawfully leaving the
scene of a crash, which the person had been in the course of committing or attempting to commit
when the order to stop was given. Notwithstanding any other provision of law, the court must
sentence any person convicted of committing aggravated fleeing or eluding with serious bodily injury
or death to a mandatory minimum sentence of three years imprisonment. Nothing in section
316.1935(4) prevents a court from imposing a greater sentence of incarceration as authorized by
law.695
The court is required to revoke, for a period not less than 1 year nor exceeding 5 years, the
driver license of any operator of a motor vehicle convicted of a violation of section 316.1935(1), (2),
(3), or (4).696
Notwithstanding section 948.01, no court may suspend, defer, or withhold adjudication of
guilt or imposition of sentence for any violation of section 316.1935. A person convicted and
sentenced to a mandatory minimum term of incarceration under section 316.1935(3)(b) or (4)(b) 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 mandatory minimum sentence.697
Any motor vehicle involved in a violation of section 316.1935 is deemed to be contraband,
which may be seized by a law enforcement agency and is subject to forfeiture pursuant to sections
693
316.1935(4)(a), Fla. Stat.
694
316.1935(4)(b), Fla. Stat.
695
316.1935(4), Fla. Stat.
696
316.1935(5), Fla. Stat.
697
316.1935(6), Fla. Stat.
118
932.701-932.704. Any vehicle not required to be titled under the laws of this state is presumed to
be the property of the person in possession of the vehicle.698
Leaving the scene of a crash
A mandatory minimum sentence of four 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
316.062.699 Conviction for this offense also carries a mandatory three-year driver license
revocation.700 For purposes of sentencing under chapter 921 and determining incentive gain-time
eligibility under chapter 944, the offense is ranked one level above the ranking specified in section
921.0022 or section 921.0023 for the offense committed if the victim of the offense was a
vulnerable road user.701
A vulnerable road user in this sense means:
1. A pedestrian, including a person actually engaged in work upon a highway, or in work
upon utility facilities along a highway, or engaged in the provision of emergency services within the
right-of-way;
2. A person operating a bicycle, motorcycle, scooter, or moped lawfully on the roadway;
3. A person riding an animal; or
4. A person lawfully operating on a public right-of-way, crosswalk, or shoulder of the
roadway:
a. A farm tractor or similar vehicle designed primarily for farm use;
b. A skateboard, roller skates, or in-line skates;
c. A horse-drawn carriage;
d. An electric personal assistive mobility device; or
e. A wheelchair.702
The defendant may move to depart from the mandatory minimum term of imprisonment
prescribed in section 316.027(2)(c) unless the violation was committed while the defendant was
driving under the influence. The State may object to this departure. The court may grant the motion
698
316.1935(7), Fla. Stat.
699
316.027(2)(c), Fla. Stat.
700
316.027(2)(e), 322.28(4)(b), Fla. Stat.
701
316.027(2)(f), Fla. Stat.
702
316.027(1)(b), Fla. Stat.
119
only if it finds that a factor, consideration, or circumstance clearly demonstrates that imposing a
mandatory minimum term of imprisonment would constitute or result in an injustice. The court is
required to state in open court the basis for granting the motion.703
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.704
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 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.705
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.706
703
316.027(2)(g), Fla. Stat.
704
784.07, Fla. Stat.
705
782.065, Fla. Stat.
706
784.08, Fla. Stat.
120
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.707
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.708
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;709 burglary of a dwelling710 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
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
707
741.281, Fla. Stat.
708
742.283, Fla. Stat.
709
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).
710
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).
121
as a felony, and the version of the Florida statute to analyze is the version in effect when the out-ofstate offense was committed.711
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.712 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.713 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.714
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.715 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.716
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
the violation awaiting action of the parole commission, 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
711
Hankins v. State, 42 So. 3d 871 (Fla. 2d DCA 2010).
712
Souza v. State, 889 So. 2d 952 (Fla. 5th DCA 2004).
713
Campbell v. State, 29 So. 3d 1147 (Fla. 1st DCA 2010).
714
See, Zook v. State, 883 So. 2d 332 (Fla. 2d DCA 2004).
715
Minor v. State, 763 So. 2d 1169 (Fla. 4th DCA 2000).
716
Desmoke v. State, 912 So. 2d 1284 (Fla. 2d DCA 2005).
122
after revocation of the release supervision.717 Where, however, the reincarceration ripens into reimprisonment by virtue of the revocation of the defendants conditional release by the parole
commission, the release date for purposes of the PRRPA is the date the defendant is re-released from
prison after the revocation.718 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.719 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.720
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.721
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.722 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.723
717
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).
718
Smith v. State, 151 So. 3d 44 (Fla. 5th DCA 2014).
719
Louzon v. State, 78 So. 3d 678 (Fla. 5th DCA 2012).
720
Taylor v. State, 114 So. 3d 355 (Fla. 4th DCA 2013).
721
Tatum v. State, 922 So. 2d 1004 (Fla. 1st DCA 2006).
722
Fitzpatrick v. State, 868 So. 2d 615 (Fla. 2d DCA 2004).
723
See, Berube v. State, 873 So. 2d 635 (Fla. 2d DCA 2004).
123
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
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,724 and so will not support classification as PRR or habitualization.725 Other offenses
determined not to be within this category include solicitation by itself, even if the solicitation is for
a violent crime,726 possession of a firearm by a convicted felon,727 fleeing or attempting to elude law
enforcement,728 shooting into a dwelling,729 burglary with a battery,730 retaliating against a witness,731
and robbery by sudden snatching.732
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
724
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).
725
See, Johns v. State, 971 So. 2d 271 (Fla. 1st DCA 2008); Spradlin v. State, 967 So. 2d 376 (Fla. 4th DCA 2007).
726
Lopez v. State, 864 So. 2d 1151 (Fla. 2d DCA 2003) (solicitation to commit first-degree murder).
727
Latson v. State, 882 So. 2d 1091 (Fla. 1st DCA 2004).
728
Thomas v. State, 933 So. 2d 45 (Fla. 4th DCA 2006), review granted, decision quashed, 969 So. 2d 353 (Fla. 2007).
729
Paul v. State, 958 So. 2d 1135 (Fla. 4th DCA 2007).
730
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).
731
Donaldson v. State, 1 So. 3d 412 (Fla. 1st DCA 2009).
732
Thomas v. State, 983 So. 2d 746 (Fla. 4th DCA 2008).
124
the vehicle to have been occupied.733 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.734 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.735
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.736
The State has the burden of proving by a preponderance of the evidence that the defendant qualifies
as a PRR.737
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:
1.
2.
3.
4.
For a felony punishable by life, by a term of imprisonment for life;

For 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 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.738
The mandatory sentence for first-degree robbery with a firearm under the PRRPA is, for example,
733
Paul v. State, 129 So. 3d 1058 (Fla. 2013).
734
State v. Hackley, 95 So. 3d 92 (Fla. 2012).
735
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).
736
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).
737
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.).
738
Knight v. State, 808 So. 2d 210 (Fla. 2002).
125
life in prison.739 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.740
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).741 Imposing a
PRR sentence is mandatory once the State proves that the defendant qualifies and the sentencing
court can not offer a plea bargain for a guidelines sentence if the State is seeking a PRR sentence.742
The Florida Supreme Court in 2014 decided in Cotto v. State743 that the PRRPA is a
mandatory minimum provision that creates a sentencing floor and does not extend the maximum
permissive sentence for the subject offense, for which the rule of Hale v. State744 is inapplicable.
Later that year, citing its opinion in State v. Reev es 7 4 5 the Florida Supreme Court held 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, 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.746
739
McDonald v. State, 957 So. 2d 605 (Fla. 2007).
740
Jones v. State, 861 So. 2d 1261 (Fla. 4th DCA 2003).
741
Nettles v. State, 850 So. 2d 487 (Fla. 2003).
742
State v. Baker, 874 So. 2d 643 (Fla. 2d DCA 2004).
743
Cotto v. State, 139 So. 3d 283 (Fla. 2014).
744
Hale v. State, 630 So. 2d 521 (Fla. 1993).
745
Reeves v. State, 957 So. 2d 625, 633 (Fla. 2007).
746
State v. M osley, 149 So. 3d 684 (Fla. 2014), approving Young v. State, 37 So. 3d 389 (Fla. 5th DCA 2010).
126
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.747 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.748 Minimum mandatory sentences for separate crimes, one under the PRRPA and the other
under the 10-20-Life statute, can be imposed consecutively. 7 49 Where consecutive sentences can be
imposed, the PRRPA sentence must be served first.750
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.751 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.752 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
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.753 The imposition
of an applicable longer concurrent term of imprisonment with a PRR mandatory minimum sentence
does not, however, violate double jeopardy.754 Note, also, that the PRRPA does not preclude
747
Reeves v. State, 957 So. 2d 625 (Fla. 2007).
748
McDonald v. State, 957 So. 2d 605 (Fla. 2007).
749
Mobley v. State, 983 So. 2d 630 (Fla. 5th DCA 2008).
750
Powell v. State, 881 So. 2d 1180 (Fla. 5th DCA 2004); Dubose v. State, 834 So. 2d 423 (Fla. 2d DCA 2003).
751
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).
752
Johnson v. State, 927 So. 2d 251 (Fla. 2d DCA 2006).
753
Morris v. State, 910 So. 2d 306 (Fla. 1st DCA 2005).
754
See, Scott v. State, 842 So. 2d 1054 (Fla. 4th DCA 2003); Grant v. State, 770 So. 2d 655 (Fla. 2000).
127
imposition of an HFO sentence and a PRR sentence on different offenses even if those sentences are
imposed during the same sentencing hearing.755
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.756
Habitual felony offender, habitual violent felony offe nder, threetime 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), threetime 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.757 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
judge, and the decision in Blakely v. Washington758 does not require that such findings be made by
a jury.759
Multiple convictions entered in a single sentencing count as one prior felony conviction, even
if for unrelated crimes.760 If imposed before separate judges on the same day, however, each counts
755
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).
756
See Anaya v. State, 70 So. 3d 703 (Fla. 4th DCA 2011).
757
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).
758
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, 6 A.L.R. Fed. 2d 619 (2004).
759
See, Luton v. State, 934 So. 2d 7 (Fla. 3d D CA 2006), decision clarified on denial of rehg, (Aug. 9, 2006) (HVFO
qualification does not have to be determined by a jury).
760
Bover v. State, 797 So. 2d 1246, 1250 (Fla. 2001).
128
as a separate conviction.761 The predicate felonies also must have both occurred prior and have been
convicted prior to the offense being enhanced.762 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.763
For purposes of section 775.084, the term conviction is equivalent to adjudication.764 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,765 wherein the court explained:
On January 25, 1991, [Royce M.] Reed entered a plea of guilty in case number 8936248A, and was
adjudicated guilty. Becau s e 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 th at
conviction which was used to habitualize him in 9113007. Reed complains that this case could not
be used to habitualize himbecause the conviction was not final while his sentencing remained pending,
and that sentence 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 9113007.766
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 defendants
sentence be so enhanced, the defendant may be sentenced under any other applicable sentencing
761
Price v. State, 721 So. 2d 360 (Fla. 5th DCA 1998).
762
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).
763
Shorter v. State, 891 So. 2d 1146 (Fla. 4th DCA 2005).
764
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).
765
Reed v. State, 880 So. 2d 1269 (Fla. 3d DCA 2004).
766
Reed v. State, 880 So. 2d 1269, 127071 (Fla. 3d DCA 2004).
129
scheme. Note that section 775.084 does not authorize any fines.767 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, 2000.768
The specific punishments authorized by section 775.084 are summarized in the following
table:769
Table 1. Summary of Punishments Authorized by 775.084, Fla. Stat.
3rd Degree
Felonies
2nd Degree
Felonies
1st Degree
Felonies
Life Felonies
Habitual
Felony
Offenders
Up to 10 years
Up to 30 years
Life
imprisonment
Life
imprisonment
Habitual
Violent Felony
Offenders
Up to 10 years;
not eligible for
release for 5
years
Up to 30 years;
not eligible for
release for 10
years
Life
imprisonment;
not eligible for
release for 15
years
Life
imprisonment;
not eligible for
release for 15
years
Three-Time
Violent
Offenders
Mandatory
minimum of 5
years
Mandatory
minimum of 15
years
Mandatory
minimum of 30
years
Mandatory
minimum of life
imprisonment
Violent Career
Criminals
Up to 15 years,
with a
mandatory
minimum of 10
years
Up to 40 years,
with a
mandatory
minimum of 30
years
Life
imprisonment;
no discretionary
early release
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
767
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).
768
Baker v. State, 941 So. 2d 419 (Fla. 2d DCA 2006).
769
Adapted from Clines v. State, 912 So. 2d 550 (Fla. 2005).
130
primary offense qualifying for enhancement.770 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.771
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.772 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
the statute.773 Community control also qualifies as a sentence for purposes of the habitual offender
statute.774
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.775 Note, however, that the trial courts failure to conduct a
770
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).
771
Clines v. State, 912 So. 2d 550 (Fla. 2005).
772
See, Destra v. State, 672 So. 2d 822 (Fla. 3d DCA 1995).
773
State v. Richardson, 915 So. 2d 86 (Fla. 2005), agreeing with the decision in M cCall v. State, 862 So. 2d 807 (Fla. 2d
DCA 2003).
774
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).
775
775.084(3)(a) and (b), Fla. Stat.
131
hearing or make written or oral findings on the defendant's habitual felony offender status is not an
appealable issue for the State.776
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 threetime violent felony offender.777 Unless waived, this
presentence investigation is mandatory.778 There is no similar requirement for the imposition of
sentence as a violent career criminal.
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.779 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.780
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.781
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. 7 8 2 In order to impose a sentence as a HFO,
776
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).
777
775.084(3)(a)1 and (b)1, Fla. Stat.
778
Ortiz v. State, 9 So. 3d 774 (Fla. 4th DCA 2009) (defense counsel could waive PSI prior to imposition of sentence).
779
775.084(3)(a)2, (b)2, and (c)1, Fla. Stat.
780
Mackey v. State, 884 So. 2d 118 (Fla. 2d DCA 2004).
781
Akers v. State, 890 So. 2d 1257 (Fla. 5th DCA 2005).
782
775.084(3)(a)2., (b)2., and (c)1, Fla Stat.
132
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.783 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.784
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.785 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.786 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.787 The notice to the defendant must inform him or her of the States
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.788
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 particularized notice of only the lowest
783
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).
784
Smith v. State, 126 So. 3d 397 (Fla. 4th DCA 2013).
785
Baker v. State, 12 So. 3d 281 (Fla. 5th DCA 2009).
786
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).
787
Ashe v. State, 951 So. 2d 1023 (Fla. 1st DCA 2007).
788
Vann v. State, 970 So. 2d 878 (Fla. 2d DCA 2007).
133
enhancement of HFO and thereafter attempted to seek the highest enhancement of VCC, especially
if different qualifying convictions are involved.789
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.790
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.791 The State
must present evidence of the prior convictions and cannot simply refer to evidence introduced at an
earlier sentencing hearing. 792 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.793 The trial
court can rely upon certified copies of convictions and original court records in making the
determination.794 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.795 The burden then shifts to the defendant to show mistaken
identity.796
789
Kepner v. State, 911 So. 2d 1256 (Fla. 4th DCA 2005), cause dismissed, 984 So. 2d 519 (Fla. 2008); Travis v. State, 724
So. 2d 119, 12021 (Fla. 1st DCA 1998); Anderson v. State, 901 So. 2d 213 (Fla. 4th DCA 2005); Washington v. State, 895 So. 2d
1141 (Fla. 4th DCA 2005).
790
Stanford v. State, 69 So. 3d 1039 (Fla. 1st DCA 2011).
791
Boyd v. State, 776 So. 2d 317, 318 (Fla. 4th DCA 2001) (habitual offender).
792
See, Rich v. State, 814 So. 2d 1207, 1208 (Fla. 4th DCA 2002).
793
Johnson v. State, 42 So. 3d 899 (Fla. 2d DCA 2010).
794
Slade v. State, 898 So. 2d 120 (Fla. 4th DCA 2005).
795
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).
796
Guion v. State, 753 So. 2d 628 (Fla. 5th DCA 2000).
134
For purposes of section 775.084, the term conviction is equivalent to adjudication.797

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.798 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.7 9 9 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
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.800
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)
797
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) (adjudicat ion 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).
798
Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967).
799
Leffew v. State, 518 So. 2d 1376, 1378 (Fla. 2d DCA 1988).
800
State v. Rock, 605 So. 2d 456 (Fla. 1992); see also, State v. Beach, 592 So. 2d 237 (Fla. 1992).
135
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.801
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.802 A conviction that is not final, because it
is on appeal, cannot be relied upon for habitualization.803 If the defendant files an appeal from the
judgment of guilty, finality occurs when an appellate court affirms the lower courts judgment.804
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.805 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.
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.806
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.807
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
801
State v. Kelly, 999 So. 2d 1029 (Fla. 2008).
802
Kiley v. State, 936 So. 2d 674 (Fla. 4th DCA 2006).
803
See, Martin v. State, 592 So. 2d 1219 (Fla. 1st DCA 1992).
804
State v. Peterson, 667 So. 2d 199 (Fla. 1996) (habitual offender).
805
Breeze v. State, 641 So. 2d 450 (Fla. 1st DCA 1994); Delguidice v. State, 554 So. 2d 35 (Fla. 4th DCA 1990).
806
See, J.R.H. v. State, 932 So. 2d 430 (Fla. 4th DCA 2006).
807
Meehan v. State, 397 So. 2d 1214 (Fla. 2d DCA 1981) (habitual offender sentencing).
136
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.808 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.809
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 327.354.810
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
808
Gray v. State, 910 So. 2d 867 (Fla. 1st DCA 2005).
809
Campbell v. State, 949 So. 2d 1093 (Fla. 3d DCA 2007).
810
90.803(8), Fla. Stat.
137
subsection (1),811 subsection (2), 8 1 2 or subsection (3)813 or complying with any act of the Legislature
or rule adopted by the Supreme Court.814
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 selfauthenticating 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).815
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.
Washington816 to establish the defendants prison release date for the purposes of enhanced
sentencing, so long as the prosecutor establishes the state law predicate to admission.817 Computer
printouts, like business records, are admissible if the records custodian or other qualified witness is
811
A document bearing: (a) A seal purportingto 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.
812
A document not bearing a seal but purporting to bear a signature of an officer or employee of any entity listed in
subsection (1), afixed in the officers or employees official capacity. 90.902(2), Fla. Stat.
813
An official foreign document, record, or entry that is:

(a) Executed or attested to by a person in the persons 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.
814
90.902(4), Fla. Stat.
815
See, Christie v. State, 951 So. 2d 1029 (Fla. 4th DCA 2007); 90.902(4), Fla. Stat.
816
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv. 1077 (2004).
817
Desue v. State, 908 So. 2d 1116 (Fla. 1st DCA 2005).
138
available to testify as to manner of preparation, reliability and trustworthiness of the product.818 In

appropriate circumstances, a printout may also be admissible as a properly certified copy of an
official public record.819 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.820 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.821 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. 8 2 2 The State may not, in any event, rely solely
on hearsay to prove a defendants release from prison.823
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
818
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).
819
See, 90.902(4), Fla. Stat.; Charles W. Ehrhardt, Florida Evidence 902.5, at 966 (2005 ed.) (explaining that to be selfauthenticating 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
defendants 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).
820
Yisrael v. State, 993 So. 2d 952 (Fla. 2008), as revised on denial of rehg, (July 10, 2008).
821
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), decision disapproved
in part, 993 So. 2d 952 (Fla. 2008), as revised on denial of rehg, (July 10, 2008) and (disapproved of by, Ray v. State, 7 So. 3d 529
(Fla. 2009)); 90.803(8), Fla. Stat.
822
Whitley v. State, 2009 WL 3126159 (Tex. App. Texarkana 2009).
823
Glover v. State, 871 So. 2d 1025 (Fla. 1st DCA 2004).
139
accompanied by certified fingerprints, a photograph of the defendant, or some other competent

evidence of identity, the State cannot meet its burden of proof.824
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.825 Once
the State has met its burden, the burden shifts to the defendant to prove exceptional facts making the
enhanced sentencing inapplicable.826
Habitual felony offender
Any felony offense that by its own statutory language is punishable as provided in the felony
offender statute, section 775.084, Fla. Stat., qualifies for habitual felony offender enhancement. The
felony offender statute does not set forth the specific qualifying offenses for habitual felony offender
enhancement, and so reference must be made to the language of the statute defining the offense for
which sentencing is to take place. The offense of leaving the scene of a crash involving death or
injury under section 316.027, Fla. Stat., for example, references punishment under section 775.084,
and so qualifies for habitual felony offender enhancement, while felony petit theft, which does not
reference punishment under section 775.084, is not subject to such enhancement.827
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 courtordered or lawfully imposed supervision that is imposed as a result of a prior conviction for a felony
or other qualified offense; or
824
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).
825
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).
826
Brown v. State, 789 So. 2d 366 (Fla. 2d DCA 2001) (disapproved of by, State v. Hearns, 961 So. 2d 211 (Fla. 2007));
Travis v. State, 724 So. 2d 119, 12021 (Fla. 1st DCA 1998); Smith v. State, 753 So. 2d 703 (Fla. 5th DCA 2000), decision approved,
787 So. 2d 830 (Fla. 2001).
827
See Kennedy v. State, So. 3d , 2015 WL 489593 (Fla. 2d DCA 2015).
140
b. Within five years of the date of the conviction of the defendants 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.
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.828 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. Hale829 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.830
828
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).
829
830
Elliott v. State, 9 So. 3d 660 (Fla. 5th DCA 2009).
141
A habitualized offense cannot be used as a primary offense on a scoresheet.831 Habitualized

offenses may not be used as additional offenses.832 Sentences for habitualized offenses arising from
a single incident must be concurrent.833
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.834 (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
offender statute.835 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.836 The trial court can then sentence the defendant separately on each
charge, imposing them concurrently or consecutively as it sees fit.837
There is no bright line for determining whether a criminal episode is single for purposes of
evaluating consecutive enhancement sentences.838 Whether the two or more offenses were
committed during a single criminal episode is a question of fact.839 In resolving this question of fact,
the courts generally consider factors such as the nature, time, place and number of victims.840
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
831
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).
832
Smith v. State, 632 So. 2d 95 (Fla. 2d DCA 1994); Ricardo v. State, 608 So. 2d 93 (Fla. 2d DCA 1992).
833
Howard v. State, 852 So. 2d 901 (Fla. 2d DCA 2003); Hale v. State, 630 So. 2d 521 (Fla. 1993).
834
835
Fuller v. State, 867 So. 2d 469, 470 (Fla. 5th DCA 2004); Kiedrowski v. State, 876 So. 2d 692, 694 (Fla. 1st DCA 2004).
836
775.084(4)(e), Fla. Stat.
837
775.021(4)(a), Fla. Stat.; see, Elliott v. State, 9 So. 3d 660 (Fla. 5th DCA 2009).
838
Wilcher v. State, 787 So. 2d 150, 152 (Fla. 4th DCA 2001).
839
Williams v. State, 804 So. 2d 572, 574 (Fla. 5th DCA 2002), cause dismissed, 829 So. 2d 921 (Fla. 2002); Travis v. State,
724 So. 2d 119, 12021 (Fla. 1st DCA 1998).
840
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)).
142
sentencing may not be used to further lengthen the overall sentence.841 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.842 Where the combined sentences
do not exceed the statutory maximum, it may be possible to impose consecutive sentences.16 Where
multiple counts involve a single victim but charge separate criminal episodes, consecutive sentences
may be imposed.843 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
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.844 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 15year HFO sentence followed by 10 years of probation added to the HFO sentence.845
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.846
841
Kiedrowski v. State, 876 So. 2d 692 (Fla. 1st DCA 2004); Fuller v. State, 867 So. 2d 469 (Fla. 5th DCA 2004).
842
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).
16 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).
843
Trotter v. State, 744 So. 2d 583 (Fla. 2d DCA 1999).
844
Hunsicker v. State, 881 So. 2d 1166 (Fla. 5th DCA 2004) (disapproved of by, State v. Paul, 934 So. 2d 1167 (Fla. 2006));
Travis v. State, 724 So. 2d 119, 12021 (Fla. 1st DCA 1998).
845
Michel v. State, 935 So. 2d 1228 (Fla. 5th DCA 2006).
846
Hamilton v. State, 996 So. 2d 964 (Fla. 1st DCA 2008).
143
There is conflict between the First and Fifth Districts as to whether or not consecutive
sentencing is permitted otherwise.847 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.22
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.848
Note that juvenile adjudications cannot be used as predicate convictions for purposes of sentencing
a defendant as a habitual offender.849
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.850 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.851
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.852
Where a defendant was not declared to be an habitual offender at the initial sentencing, the defendant
847
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).
22 See, Welling v. State, 748 So. 2d 314 (Fla. 4th DCA 1999).
848
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).
849
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).
850
State v. Perez, 802 So. 2d 1167 (Fla. 3d DCA 2001); State v. Stanton, 781 So. 2d 1129 (Fla. 3d DCA 2001).
851
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).
852
White v. State, 892 So. 2d 541 (Fla. 1st DCA 2005).
144
cannot be sentenced an a habitual offender upon revocation unless the defendant agrees to such in
a valid negotiated plea.853
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 defendants 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.854
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 courts original sentencing intent.855
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.856
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:
853
Lockhart v. State, 980 So. 2d 613 (Fla. 4th DCA 2008).
854
Murphy v. State, 952 So. 2d 1214 (Fla. 5th DCA 2007).
855
Suarez v. State, 974 So. 2d 451 (Fla. 3d DCA 2008).
856
State v. Collins, 985 So. 2d 985 (Fla. 2008).
145
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 courtordered 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.
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.857 Since only one qualifying felony is needed for a HVFO adjudication, it does not matter
857
Hall v. State, 821 So. 2d 1154 (Fla. 2d DCA 2002).
146
if the qualifying felony was sentenced together with, or separate from, other qualifying felonies.858
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.859
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.
Three-time violent felony offender
Another progressive enhancement category of section 775.084, Fla. Stat., is that of the threetime 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:
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;
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 defendants 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.
858
Williams v. State, 898 So. 2d 966 (Fla. 3d DCA 2005).
859
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).
147
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:
1. In the case of a felony punishable by life, to a term of imprisonment for life;
2. In the case of a felony of the first degree, to a term of imprisonment of 30 years;
3. In the case of a felony of the second degree, to a term of imprisonment of 15 years; or
4. 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
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.
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.
148
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, 1997,860 and:
a. While the defendant was serving a prison sentence or other sentence, or courtordered or lawfully imposed supervision that is imposed as a result of a prior conviction for an
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
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 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; homeinvasion 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.861 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
860
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 M ay 24, 1997.
861
776.08, Fla. Stat.
149
the enumerated felonies.862 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.863
Simple burglary is a qualifying forcible felony offense under the statute.864 Burglary of an
unoccupied conveyance is also a forcible felony and a qualifying offense under section
775.084(1)(d), Fla. Stat.865 In fact, conviction for any burglary may qualify as a predicate offense.866
Offenses determined not to be forcible felonies include the following:
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 by that section.867
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;868 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 776.08.869
862
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).
863
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).
864
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).
865
Bynes v. State, 854 So. 2d 289 (Fla. 4th DCA 2003).
866
Cala v. State, 854 So. 2d 840 (Fla. 3d DCA 2003).
867
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).
868
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.).
869
Thomas v. State, 983 So. 2d 746, 747 (Fla. 4th DCA 2008), citing State v. Hearns, 961 So. 2d 211, 212 (Fla. 2007).
150
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.870
The crime of corruption by threat is not a forcible felony for purposes of sentencing, as
it may be committed without the use or threat of physical force.871
Felony battery in violation of section 784.03(2), Fla. Stat., is not a forcible felony because
the crime requires only the commission of a battery, which can be any intentional touching,
no matter how slight.872
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.873 Attempts and conspiracies are not forcible felonies expressly listed in
section 776.08, and they do not fall within section 776.08s other felony which involves the
use or threat of physical force or violence against any individual language.874
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.875
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
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.
870
Hudson v. State, 800 So. 2d 627 (Fla. 3d DCA 2001), on rehg in part, (Nov. 21, 2001).
871
Dresch v. State, 150 So. 3d 1199 (Fla. 4th DCA 2014).
872
Bradley v. State, So. 3d , 2015 WL 340683 (Fla. 4th DCA 2015).
873
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).
874
Campbell v. State, 935 So. 2d 614 (Fla. 3d DCA 2006).
875
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).
151
Scoresheet preparation when 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 775.084.876 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
subsequently used as prior record when scoring an offense committed subsequently to the
enhanceable offense(s).877
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
876
See, Fla. R. Crim. P. 3.704(d)(1), 3.703(d)(1), 3.702(d)(1).
877
Ricardo v. State, 608 So. 2d 93 (Fla. 2d DCA 1992).
152
committed and whether the defendant possessed or discharged a firearm and caused death or serious
bodily injury.
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.878 Note that one of the effects of Heggs v. State,879 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, 1997.880
Section 775.087(1) precludes reclassification if the crime charged requires the use of a
weapon as one of its essential elements.881 That is, as indicated in section 775.087(1), a degree
classification pertains when the offense is committed with the use of a weapon, unless the use of the
weapon is an essential element of the crime. As an example, although aggravated battery causing
great bodily harm can be reclassified 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.882 In other words, aggravated battery can be committed in alternative ways, such as by
causing great bodily harm or by using a deadly weapon.883 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.884 Thus, in order to support the reclassification under
section 775.087(1), the jury must be given the option of finding the defendant guilty of aggravated
battery with great bodily harm without also finding the defendant guilty of aggravated battery with
878
775.087(1), Fla. Stat.
879
Heggs v. State, 759 So. 2d 620 (Fla. 2000).
880
Reid v. State, 799 So. 2d 394 (Fla. 4th DCA 2001).
881
See, Lareau v. State, 573 So. 2d 813 (Fla. 1991); Cargle v. State, 829 So. 2d 366 (Fla. 1st DCA 2002).
882
Davis v. State, 884 So. 2d 1058 (Fla. 2d DCA 2004).
883
784.045(1), Fla. Stat.
884
Cabral v. State, 944 So. 2d 1026 (Fla. 1st DCA 2006).
153
a deadly weapon.885 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.886
In a felony involving the use of a weapon, a defendants sentence may only be reclassified
upon a showing that the defendant had personal possession of the weapon during the commission
of the felony.887 Reclassification under section 775.087(1) for use of a firearm requires actual, not
vicarious, possession of the firearm.888
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.889 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.890 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.891
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,
885
Webb v. State, 997 So. 2d 469 (Fla. 2d DCA 2008).
886
Hurry v. State, 978 So. 2d 854 (Fla. 1st DCA 2008).
887
See State v. Rodriguez, 602 So. 2d 1270 (Fla. 1992).
888
Connolly v. State, 2014 WL 2199750 (Fla. 3d DCA 2014), mandamus dismissed, 2014 WL 3479360 (Fla. 2014); Travis
v. State, 724 So. 2d 119, 12021 (Fla. 1st DCA 1998).
889
Jefferson v. State, 927 So. 2d 1037 (Fla. 4th DCA 2006) (Sentencing enhancement for use of a firearm during offense
was not applicable to defendants 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 threeyear 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).
890
Williams v. State, 850 So. 2d 656 (Fla. 1st DCA 2003), citing State v. Tripp, 642 So. 2d 728 (Fla. 1994).
891
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).
154
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
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.
Table 2. Minimum Mandatory Qualifying Offenses Under 775.087, Fla. Stat.
Offense
775.087(2)(a)1.
775.087(3)(a)1.
Murder
Sexual Battery
Robbery
Burglary
Arson
Aggravated Assault
Aggravated Battery
Kidnapping
Escape
Sale, manufacture, delivery, or intent to

sell, manufacture or deliver any controlled
substances
Aircraft Piracy
Aggravated Child Abuse
Aggravated Abuse of an Elderly Person or

Disabled Adult
155
Unlawful Throwing, Placing, or

Discharging a Destructive Device or
Bomb
Carjacking
Home Invasion Robbery
Aggravated Stalking
Drug Trafficking892
Possession of a Firearm by a Felon
Notwithstanding section 27.366, however, the sentencing court shall not impose the
mandatory minimum sentence required by sections 775.087(2) or (3) for a conviction for aggravated
assault if the court makes written findings that:
1. The defendant had a good faith belief that the aggravated assault was justifiable pursuant
to chapter 776, Fla. Stat.
2. The aggravated assault was not committed in the course of committing another criminal
offense.
3. The defendant does not pose a threat to public safety.
4. The totality of the circumstances involved in the offense does not justify the imposition
of such sentence.893
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
892
Trafficking in cannabis, trafficking in cocaine, capital importation of cocaine, t rafficking in illegal drugs, capital
importation of illegal drugs, trafficking in phencyclidine, capital importation of phencyclidine, trafficking in methaqualone, capital
importation of methaqualone, traffickingin amphetamine, capital importation of amphetamine, trafficking in flunitrazepam, trafficking
in gammahydroxybutyric acid (GHB), trafficking in 1,4-Butanediol, trafficking in Phenethylamines, or other violation of section
893.135(1). 775.087 (2)(a)1, and (3)(a)1, Fla. Stat.
893
775.087(6), Fla. Stat.
156
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.894 The threeyear 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.895
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.896 The firearm must, however, be discharged
contemporaneously with the commission of the qualifying felony.897 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.898 Similarly, Section 775.087 does not require that the defendant fire at, or
strike, his or her intended victim in order for the defendant to be subject to this particular minimum
mandatory provision.899
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.900 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
894
775.087(2)(a)1, Fla. Stat.
895
Potter v. State, 997 So. 2d 1215 (Fla. 1st DCA 2008).
896
775.087(2)(a)2, Fla. Stat.
897
See, Lemus v. State, 33 So. 3d 774 (Fla. 4th DCA 2010).
898
Compare, e.g., Dean v. U.S., 556 U.S. 568, 129 S. Ct. 1849, 173 L. Ed. 2d 785 (2009).
899
Chavers v. State, 112 So. 3d 594 (Fla. 4th DCA 2013).
900
775.087(2)(a)3, Fla. Stat.
157
disability and/or permanent disfigurement does not permit enhancement under section 775.087.901
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.902 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.903 In situations where 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.904
Note that the First District Court of Appeal, which has held that circuit courts in that district
may, pursuant to the 10-20-Life statute, impose a sentence in addition to its selected mandatory
minimum sentence without regard to whether additional statutory authority for such an additional
sentence exists,905 has certified conflict with the Second,906 Fourth, 9 0 7 and Fifth908 Districts which
have held that the trial court may not impose a sentence in excess of 30 years for a first degree felony
under the 10-20-Life statute when the court imposes a mandatory minimum of less than 30 years.
Note also 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.909
901
Johnson v. State, 53 So. 3d 360 (Fla. 5th DCA 2011).
902
Wooden v. State, 42 So. 3d 837 (Fla. 5th DCA 2010); Yasin v. State, 896 So. 2d 875 (Fla. 5th DCA 2005).
903
McLeod v. State, 52 So. 3d 784 (Fla. 5th DCA 2010).
904
Flowers v. State, 69 So. 3d 1042 (Fla. 1st DCA 2011).
905
Hatten v. State, 152 So. 3d 849 (Fla. 1st DCA 2014), citing Kelly v. State, 137 So. 3d 2, 6-7 (Fla. 1st DCA 2014).
906
Martinez v. State, 114 So. 3d 1119, 1120 (Fla. 2d DCA 2013); Sheppard v. State, 113 So. 3d 148, 149 (Fla. 2d DCA
2013); Prater v. State, 113 So. 3d 147-48 (Fla. 2d DCA 2013).
907
Levine v. State, So. 3d , 2014 WL 5149098 (Fla. 4th DCA 2014); Antoine v. State, 138 So. 3d 1064, 1078 (Fla.
4th DCA 2014); Walden v. State, 42 So. 3d 660, 661 (Fla. 4th DCA 2013).
908
Wooden v. State, 42 So. 3d 837 (Fla. 5th DCA 2010); Roberts v. State, So. 3d , 2013 WL 6687751 (Fla. 5 th DCA
Dec. 20, 2013); Mcleod v. State, 52 So. 3d 784 (Fla. 5th DCA 2010).
909
Dorsett v. State, 873 So. 2d 424 (Fla. 3d DCA 2004).
158
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
piracy; aggravated child abuse; aggravated abuse of an elderly person or disabled adult; unlawful
throwing, placing, or discharging of a destructive device or bomb; arjacking; 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.910 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.911 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.912
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.913
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
910
775.087(3)(a)1, Fla. Stat.
911
775.087(3)(a)2, Fla. Stat.
912
775.087(3)(a)3, Fla. Stat.
913
775.087(2)(b), Fla. Stat.
159
Punishment Code under chapter 921, then the sentence imposed by the court must include the
mandatory minimum term of imprisonment as required in section 775.087.914
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.915 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.916 A toy gun does not fit within the definition of firearm under the
10/20/life statute.917 Where a firearm is used in the commission of a crime, the fact that the firearm
is inoperable makes no difference.918 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.919
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.920 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.921
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.922 The charging document must also plead specifically the basis
914
775.087(2)(c), Fla. Stat.
915
775.087(2)(a)(1), Fla. Stat.; Bundrage v. State, 814 So. 2d 1133 (Fla. 2d DCA 2002).
916
Margiotti v. State, 844 So. 2d 829 (Fla. 3d DCA 2003).
917
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).
918
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).
919
775.087(4), Fla. Stat.
920
McGill v. State, 878 So. 2d 1270 (Fla. 5th DCA 2004).
921
Wallace v. State, 860 So. 2d 494 (Fla. 4th DCA 2003).
922
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)).
160
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.923 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.924 The verdict must also reflect
a clear jury finding that the defendant used a firearm before the defendants sentence may be
enhanced.925 This requisite clear jury finding can be demonstrated either by (1) a specific question
or special verdict form, which is the better practice, or (2) the inclusion of a reference to a firearm
in identifying the specific crime for which the defendant is found guilty.926
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.927 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.928 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.929 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.930 The charging document must
state, and the jury must specifically find, that the defendant discharged the firearm for imposition
923
See, Freudenberger v. State, 940 So. 2d 551 (Fla. 2d DCA 2006); Inmon v. State, 932 So. 2d 518 (Fla. 4th DCA 2006).
924
Bundrage v. State, 814 So. 2d 1133 (Fla. 2d DCA 2002).
925
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).
926
See Roberts v. State, 152 So. 3d 669 (Fla. 4th DCA 2014), and cases cited therein.
927
See, Toro v. State, 691 So. 2d 576, 577 (Fla. 2d DCA 1997).
928
Henry v. State, 834 So. 2d 406, 407 (Fla. 2d DCA 2003); see, Thompson v. State, 862 So. 2d 955 (Fla. 2d DCA 2004).
929
Muldrow v. State, 842 So. 2d 240 (Fla. 2d DCA 2003).
930
Bell v. State, 876 So. 2d 712 (Fla. 4th DCA 2004).
161
of the 20year minimum mandatory sentence.931 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.932
Similarly, the charging document and the verdict form must incorporate that the defendant
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.933 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.934
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.935 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.936
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,937 a defendant who trades his or her drugs for a firearm does not use the firearm,938 and
931
See, Koch v. State, 874 So. 2d 606 (Fla. 5th DCA 2004).
932
Mendenhall v. State, 999 So. 2d 665 (Fla. 5th DCA 2008), decision approved, 48 So. 3d 740 (Fla. 2010), approved
933
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).
934
State v. Tripp, 642 So. 2d 728 (Fla. 1994).
935
Crawford v. State, 858 So. 2d 1131 (Fla. 2d DCA 2003).
936
Perry v. State, 858 So. 2d 1270 (Fla. 1st DCA 2003); Montgomery v. State, 704 So. 2d 548, 55051 (Fla. 1st DCA 1997).
937
Smith v. U.S., 508 U.S. 223, 113 S. Ct. 2050, 124 L. Ed. 2d 138 (1993).
938
Watson v. U.S., 552 U.S. 74, 128 S. Ct. 579, 169 L. Ed. 2d 472 (2007).
162
a defendant who has a firearm nearby during a drug transaction does not use the firearm without
something more than mere possession.939
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.940 The any other language in section 775.087 mandating
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.941
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. 9 4 2 The First District has recently adopted the
position that stacking minimum mandatory sentences under section 775.087(2) is mandated under
such circumstances.943 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.944 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.945
939
Bailey v. U.S., 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995).
940
775.087(2)(d) and (3)(d), Fla. Stat.
941
State v. Sousa, 903 So. 2d 923 (Fla. 2005).
942
Swanigan v. State, 57 So. 3d 989 (Fla. 5th DCA 2011); Valentin v. State, 963 So. 2d 317, 31920 (Fla. 5th DCA 2007).
943
Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013), review dismissed, 116 So. 3d 1264 (Fla. 2013) and review granted,
123 So. 3d 1148 (Fla. 2013) and review granted, 2014 WL 1654326 (Fla. 2014).
944
945
State v. Sousa, 903 So. 2d 923 (Fla. 2005); State v. Christian, 692 So. 2d 889 (Fla. 1997).
163
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.946
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;947 (b) used or threatened to use a deadly weapon during the commission
of the offense;948 (c) victimized more than one person during the course of the criminal episode
applicable to the offense;9 4 9 (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;950 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).951 A DSFO must be sentenced to a mandatory minimum term of
25 years imprisonment up to, and including, life imprisonment. If the offense described in this
946
Green v. State, 18 So. 3d 656 (Fla. 2d DCA 2009).
947
794.0115(2)(a), Fla. Stat.
948
794.0115(2)(b), Fla. Stat.
949
794.0115(2)(c), Fla. Stat.
950
794.0115(2)(d), Fla. Stat.
951
794.0115(2)(e), Fla. Stat.
164
subsection was committed on or after October 1, 2014, a person who qualifies as a dangerous sexual
felony offender pursuant to subsection 794.0115(2) must be sentenced to a mandatory minimum term
of 50 years imprisonment up to, and including, life imprisonment.952 The phrase under the
jurisdiction of a court for a felony offense includes probation.953
Serious personal injury means great bodily harm or pain, permanent disability, or
permanent disfigurement.954 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). 9 5 5 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
any other law.956 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.957
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 794.0115.958 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.959
952
794.0115(2), Fla. Stat.
953
Williams v. State, 83 So. 3d 1001 (Fla. 1st DCA 2012), review denied, 95 So. 3d 215 (Fla. 2012).
954
794.0115(3), Fla. Stat.
955
794.0115(4), Fla. Stat.
956
794.0115(5), Fla. Stat.
957
State v. Mason, 979 So. 2d 301 (Fla. 5th DCA 2008).
958
794.0115(6), Fla. Stat.
959
794.0115(7), Fla. Stat.
165
Unlike habitual offender sentencing, where the state must file a notice of its intent to seek
habitual offender sentencing,960 and the court has some discretion in the determination of habitual
offender status,961 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.962
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
punishment.963 A collateral consequence is one that does not.964 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 selfincrimination and the application of the ex post facto rule.965
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
960
See, Ashley v. State, 614 So. 2d 486 (Fla. 1993).
961
See, 775.084(4)(e), Fla. Stat. (court may find that habitual offender designation is not necessary for the protection of
the public).
962
794.0115(6), Fla. Stat.; see, Abrams v. State, 971 So. 2d 1033 (Fla. 4th DCA 2008).
963
Major v. State, 814 So. 2d 424 (Fla. 2002).
964
State v. Partlow, 840 So. 2d 1040 (Fla. 2003) (statutory sex offender registration is a collateral consequence of a plea).
965
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.).
166
Florida. Ordinarily, non-penal statutes cannot divest citizens of substantive rights retroactively.966
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.967 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 longterm 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 nonpunitive (civil).
Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory
construction.968 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.969 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.970 In making this latter determination, the factors listed in Kennedy v. Mendoza-Martinez971
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
966
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).
967
Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996).
968
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).
969
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
970
Rex Trailer Co. v. U.S., 350 U.S. 148, 76 S. Ct. 219, 100 L. Ed. 149 (1956).
971
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 16869, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963).
(1980).
167
suffice to override legislative intent and transform what has been denominated a civil remedy into
a criminal penalty.972
Examples of such court-imposed non-punitive sanctions that illustrate this aspect of
sentencing law include drivers license revocations,973 the registration and reporting requirements
for sexual offenders and sexual predators, and involuntary civil commitment under the Baker Act
and the Jimmy Ryce Act.
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.974 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
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.975
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.
972
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).
973
Bolware v. State, 995 So. 2d 268 (Fla. 2008).
974
943.325(3), Fla. Stat.
975
943.325(2)(g), Fla. Stat.
168
4. Beginning January 1, 2017, all felonies defined by chapter 893.

5. Beginning January 1, 2019, all remaining felony offenses.976
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 courtordered supervision in Florida, is required to submit a DNA sample to a Florida Department of Law
Enforcement (FDLE)-designated facility.977 Arrested qualifying offenders must submit a DNA
sample at the time they are booked into a jail, correctional facility, or juvenile facility.978
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.979 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
transmitted to FDLE.980 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.981 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.982
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 statutes
purview and so cannot be compelled to submit a specimen of his or her blood or other biological
specimens for testing under this law.983
976
943.325(3)(b), Fla. Stat.
977
943.325(7)(a), Fla. Stat.
978
943.325(7)(b), Fla. Stat.
979
943.325(7)(c), Fla. Stat.
980
943.325(7)(d), Fla. Stat.
981
943.325(7)(e), Fla. Stat.
982
943.325(7)(f), Fla. Stat.
983
See, Smith v. State, 955 So. 2d 21 (Fla. 3d DCA 2006).
169
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.984
Driver license revocation
The most commonly imposed non-punitive sanction on a criminal defendant along with
criminal sanctions at sentencing is revocation of the defendants driver 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 privilege 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 driver's 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 316.985 Section 322.28(2)(a), Fla. Stat., authorizes the court
984
945.325(16), Fla. Stat.
985
316.655(2), Fla. Stat.
170
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.986
Section 316.655(2), Fla. Stat., specifically permits the court to do so up to and including permanent
revocation if warranted by the circumstances.987
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 driver
license or privilege, the court is required to direct DHSMV to withhold issuance of such person's
driving license or driving privilege for a period of 1 year after the date the person was convicted 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 privilege are already under suspension at the time of
conviction, the court will direct DHSMV to impose an additional 1 year 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
driver license or driving privilege for a period of 1 year 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
privilege 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. A court that orders the revocation or suspension of, or delay in
eligibility for, a driver license pursuant to section 322.055 is required to make a specific, articulated
986
316.655(2), Fla. Stat.
987
Stoletz v. State, 875 So. 2d 572 (Fla. 2004).
171
determination as to whether the issuance of a license for driving privilege restricted to business
purposes only, as defined in section 322.271, is appropriate in each case.988
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
322.271.989
Except as provided in section 812.0155(2) and (3), the court may order the suspension of the
driver license of each person adjudicated guilty of any misdemeanor violation of section 812.014 or
section 812.015, regardless of the value of the property stolen. Upon ordering the suspension of the
driver license of the person adjudicated guilty, the court must forward the driver license of the person
adjudicated guilty to the Department of Highway Safety and Motor Vehicles in accordance with
section 322.25.990 The first suspension of a driver license under section 812.0155(1) must be for a
period of up to 6 months.991 A second or subsequent suspension of a driver license under section
812.0155(1) must be for 1 year.992 The court may revoke, suspend, or withhold issuance of a driver
license of a person less than 18 years of age who violates section 812.014 or section 812.015 as an
alternative to sentencing the person to:
1. Probation as defined in section 985.03 or commitment to the Department of Juvenile
Justice, if the person is adjudicated delinquent for such violation and has not previously been
convicted of or adjudicated delinquent for any criminal offense, regardless of whether adjudication
was withheld.993
2. Probation as defined in section 985.03, commitment to the Department of Juvenile Justice,
probation as defined in chapter 948, community control, or incarceration, if the person is convicted
as an adult of such violation and has not previously been convicted of or adjudicated delinquent for
any criminal offense, regardless of whether adjudication was withheld.994
988
322.055(5), Fla. Stat.
989
322.28(7), Fla. Stat.
990
812.0155(1), Fla. Stat.
991
812.0155(1)(a), Fla. Stat.
992
812.0155(1)(b), Fla. Stat.
993
812.0155(2)(a), Fla. Stat.
994
812.0155(2)(b), Fla. Stat.
172
As used in section 812.0155(3), the term department means the Department of Highway
Safety and Motor Vehicles. A court that revokes, suspends, or withholds issuance of a driver license
under section 812.0155(2) must:
1. If the person is eligible by reason of age for a driver license or driving privilege, direct the
department to revoke or withhold issuance of the persons driver license or driving privilege for not
less than 6 months and not more than 1 year;995
2. If the persons driver license is under suspension or revocation for any reason, direct the
department to extend the period of suspension or revocation by not less than 6 months and not more
than 1 year;996 or
3. If the person is ineligible by reason of age for a driver license or driving privilege, direct
the department to withhold issuance of the person's driver license or driving privilege for not less
than 6 months and not more than 1 year after the date on which the person would otherwise become
eligible.997
Sections 812.0155(2) and (3) do not preclude the court from imposing any sanction specified
or not specified in 812.0155(2) or (3).998 A court that suspends the driver license of a person
pursuant to 812.0155(1) may direct the Department of Highway Safety and Motor Vehicles to issue
the person a license for driving privilege restricted to business purposes only, as defined in section
322.271, if he or she is otherwise qualified.999
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.1000
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
995
812.0155(3)(a), Fla. Stat.
996
812.0155(3)(b), Fla. Stat.
997
812.0155(3)(c), Fla. Stat.
998
812.0155(4), Fla. Stat.
999
812.0155(5), Fla. Stat.
1000
322.28(3), Fla. Stat.
173
imposed (either by the court or by a separate agency), the plea will provide the basis for the
suspension or revocation of the defendants driver license.1001
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
prison system,1002 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.1003 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.1004 A convicted
felon may not carry a concealed weapon or own, possess or control a firearm or ammunition.1005
Convicted felons are not allowed to serve on juries.1006 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.
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.1007 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.1008
1001
Fla. R. Crim. P. 3.172(c)(10).
1002
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.
1003
944.292(1), Fla. Stat.
1004
Art VI, 4, Fla. Const.; 97.041(2)(b), Fla. Stat.
1005
790.23, Fla. Stat.
1006
40.013(1), Fla. Stat.
1007
775.13(2), Fla. Stat.
1008
775.13(3), Fla. Stat.
174
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.1009
This registration requirement does not apply to a person who:
1. Has had his or her civil rights restored;1010
2. Has received a full pardon for the offense for which convicted;1011
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;1012
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;1013
5. Is a sexual predator and has registered as required under section 775.21;1014
6. Is a sexual offender and has registered as required in section 943.0435 or section
944.607;1015
7. Is a career offender and has registered as required in section 775.261 or section
944.609.1016
1009
775.13(1), Fla. Stat.
1010
775.13(4)(a), Fla. Stat.
1011
775.13(4)(b), Fla. Stat.
1012
775.13(4)(c), Fla. Stat.
1013
775.13(4)(d), Fla. Stat.
1014
775.13(4)(e), Fla. Stat.
1015
775.13(4)(f), Fla. Stat.
1016
775.13(4)(g), Fla. Stat.
175
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 775.084.1017 With regard to all other felons, failure to register as required by section
775.13 is a misdemeanor of the second degree.1018
Forfeiture
One of the foremost civil consequences of a defendant's engagement in criminal activity is
forfeiture of property used, attempted to be used, or intended to be used in the commission of a
crime. Under the Florida Contraband Forfeiture Act1019 and other statutes,1020 such property 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.1021
Under the Florida Contraband Forfeiture Act, articles falling within the definition of
contraband may be seized and ultimately forfeited. 1 0 2 2 Following the seizure of personal property,
the State must notify all interested parties of their right to request a post- seizure adversarial
preliminary hearing.1023 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.1024
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.
1017
775.15(5)(b), Fla. Stat.
1018
775.13(5)(a), Fla. Stat.
1019
932.701 to 932.706, Fla. Stat.
1020
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).
1021
932.703(6)(a), Fla. Stat.
1022
932.703(1), Fla. Stat.
1023
932.703(2)(a), Fla. Stat.
1024
932.703(2)(c), Fla. Stat.; see also, Department of Law Enforcement v. Real Property, 588 So. 2d 957, 96566 (Fla.
1991).
176
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.1025
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,
which offense or attempted offense involves the transmission of body fluids from one person to
another: section 794.011, relating to sexual battery;1026 section 826.04, relating to incest;1027 section
800.04, relating to lewd or lascivious offenses committed upon or in the presence of persons less
than 16 years of age;1028 sections 784.011, 784.07(2)(a), and 784.08(2)(d), relating to assault;1029
sections 784.021, 784.07(2)(c), and 784.08(2)(b), relating to aggravated assault;1030 sections 784.03,
784.07(2)(b), and 784.08(2)(c), relating to battery;1031 sections 784.045, 784.07(2)(d), and
784.08(2)(a), relating to aggravated battery;1032 section 827.03(2)(c), relating to child abuse; 1 0 3 3
section 827.03(2)(a), relating to aggravated child abuse;1034 section 825.102(1), relating to abuse of
an elderly person or disabled adult;1035 section 825.102(2), relating to aggravated abuse of an elderly
1025
See, City of Hollywood v. Mulligan, 934 So. 2d 1238 (Fla. 2006).
1026
775.0877(1)(a), Fla. Stat.
1027
775.0877(1)(b), Fla. Stat.
1028
775.0877(1)(c), Fla. Stat.
1029
775.0877(1)(d), Fla. Stat.
1030
775.0877(1)(e), Fla. Stat.
1031
775.0877(1)(f), Fla. Stat.
1032
775.0877(1)(g), Fla. Stat.
1033
775.0877(1)(h), Fla. Stat.
1034
775.0877(1)(i), Fla. Stat.
1035
775.0877(1)(j), Fla. Stat.
177
person or disabled adult;1036 section 827.071, relating to sexual performance by person less than 18
years of age;1037 sections 796.07 and 796.08, relating to prostitution;1038 section 381.0041(11)(b),
relating to donation of blood, plasma, organs, skin, or other human tissue; or sections 787.06(3)(b),
(d), (f), and (g), relating to human trafficking,1039 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 out of the
alleged offense.1040 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.1041
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.1042 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. 1 043 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
1036
775.0877(1)(k), Fla. Stat.
1037
775.0877(1)(1), Fla. Stat.
1038
775.0877(1)(m), Fla. Stat.
1039
775.0877(1)(n), Fla. Stat.
1040
775.0877(1), Fla. Stat.
1041
775.0877(2), Fla. Stat.
1042
794.0235(1)(a), Fla. Stat.
1043
794.0235(1)(b), Fla. Stat.
178
sentenced separately from any other conviction that is to be counted as a prior conviction under
section 794.0235.1044 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 defendants intelligent, knowing, and voluntary
consent to physical castration as an alternative penalty.1045 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.1046 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
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.1047 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.1048 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.1049
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 775.084.1050
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
1044
794.0235(4), Fla. Stat.
1045
794.0235(1), Fla. Stat.
1046
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 M PA treatment, is mandatory rather than discretionary); 794.0235(2)(a), Fla. Stat.
1047
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 s ent ence the duration of treatment, are mandatory, as to a sentence containing a chemical castration
requirement).
1048
794.0235(2)(b), Fla. Stat.
1049
794.0235(3), Fla. Stat.
1050
794.0235(5), Fla. Stat.
179
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.1051
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.1052 Because a sexual
offender or sexual predator designation is not a sentence or a punishment, it does not interfere with
the power 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.1053
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 Florida or similar offenses in another
jurisdiction: section 393.135(2); section 394.4593(2); section 787.01, section 787.02, or section
787.025(2)(c), where the victim is a minor and the defendant is not the victims parent or guardian;
section 787.06(3)(b), (d), (f), or (g); former section 787.06(3)(h); section 794.011, excluding section
794.011(10); section 794.05; former 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 847.0135(6); section 847.0137; section 847.0138; section 847.0145; section 916.1075(2);
or 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.a.;1054 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.I. 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 crime
1051
Tran v. State, 965 So. 2d 226 (Fla. 4th DCA 2007).
1052
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)).
1053
Breitberg v. State, 14 So. 3d 1253 (Fla. 4th DCA 2009).
1054
943.0435(1)(a)1.a.I, Fla. Stat.
180
has a sexual component; the burden is on the defendant to show that it does not.1055 For purposes
of section 943.0435(1)(a)1.a.I, 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;1056 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;1057 or
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 393.135(2); section 394.4593(2);
section 787.01, section 787.02, or section 787.025(2)(c), where the victim is a minor and the
defendant is not the victims parent or guardian; section 787.06(3)(b), (d), (f), or (g); former section
787.06(3)(h); section 794.011, excluding section 794.011(10); section 794.05; former section
796.03; former section 796.035; section 800.04; section 810.145(8); section 825.1025; section
827.071; section 847.0133; section 847.0135, excluding section 847.0135(6); section 847.0137;
section 847.0138; section 847.0145; section 916.1075(2); or 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);1058 or
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
in 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)(a)2.
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.1059
1055
See Munroe v. State, 69 So. 3d 1044 (Fla. 2d DCA 2011); Raines v. State, 805 So. 2d 999 (Fla. 4th DCA 2001).
1056
943.0435(1)(a)1.a.II, Fla. Stat.
1057
943.0435(1)(a)1.b., Fla. Stat.
1058
943.0435(1)(a)1.c., Fla. Stat.
1059
943.0435(1)(a)1.d., Fla. Stat.
181
For all qualifying offenses listed in section 943.0435(1)(a)1.d., the court must make a written finding
of the age of the offender at the time of the offense.1060
For each violation of a qualifying offense listed in this section 943.0435(1), except for a
violation of section 794.011, the court must 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 must also make a written finding
indicating whether the offense involved sexual activity and indicating whether the offense involved
force or coercion. For a violation of section 800.04(5), the court must also 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.1061
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 this section. Conviction of a
similar offense includes, but is not limited to, a conviction by a federal or military tribunal, including
courtsmartial 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.1062
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 statutes
effective date.1063 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
registration and reporting statute could only have been accomplished through operation of
administrative gain time.1064
1060
943.0435(1)(a)2., Fla. Stat.
1061
943.0435(1)(a), Fla. Stat.
1062
943.0435(1)(b), Fla. Stat.
1063
See, Ellerby v. State, 5 So. 3d 795 (Fla. 2d DCA 2009).
1064
Newsom v. State, 869 So. 2d 619 (Fla. 5th DCA 2004).
182
A sexual offender is required to report in person at the sheriffs office: (1) in the county in
which the offender establishes or maintains a permanent, temporary, or transient residence within
48 hours after 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;1065 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.10 6 6 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, electronic mail addresses, or Internet
identifiers required to be provided pursuant to section 943.0435(4)(e), after the sexual offender
reports in person at the sheriffs office, must be accomplished in the manner provided in sections
843.0435(4), (7), and (8).1067
A sexual offender is also required to 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;
palm prints; photograph; occupation and place of employment; address of permanent or legal
residence or address of any current temporary residence, within Florida or out of state, including a
rural route address and a post office box; if no permanent or temporary address, any transient
residence within Florida, address, location or description, and dates of any current or known future
temporary residence within Florida or out of state; the make, model, color, vehicle identification
number (VIN), and license tag number of all vehicles owned; all home telephone numbers and
cellular telephone numbers; all electronic mail addresses and all Internet identifiers required to be
provided pursuant to paragraph (4)(c); date and place of each conviction; and a brief description of
the crime or crimes committed by the offender. A post office box may not be provided in lieu of a
physical residential address. The sexual offender must also produce his or her passport, if he or she
has a passport, and, if he or she is an alien, must produce or provide information about documents
establishing his or her immigration status. The sexual offender must also provide information about
any professional licenses he or she has.1068
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
1065
943.0435(2)(a)1., Fla. Stat.
1066
943.0435(2)(a)2., Fla. Stat.
1067
943.0435(2)(a), Fla. Stat.
1068
943.0435(2)(b), Fla. Stat.
183
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.1069
If the sexual offender is enrolled, employed, volunteering, or carrying on a vocation at an
institution of higher education in Florida, the sexual offender must also provide to the department
through the sheriffs office the name, address, and county of each institution, including each campus
attended, and the sexual offenders enrollment, volunteer, or employment status. Each change in
enrollment, volunteer, or employment status must be reported in person at the sheriffs office, within
48 hours after any change in status. The sheriff must promptly notify each institution of the sexual
offenders presence and any change in the sexual offenders enrollment, volunteer, or employment
status.1070
A sexual offender also must report in person to the sheriffs office within 48 hours after any
change in vehicles owned to report those vehicle information changes.1071
A sexual offender also is required to provide any other information determined necessary by
the department, including criminal and corrections records; nonprivileged personnel and treatment
records; and evidentiary genetic markers, when available.1072
When a sexual offender reports at the sheriffs office, the sheriff must take a photograph, a
set of fingerprints, and palm prints of the offender and forward the photographs, palm prints, and
fingerprints to the department, along with the information provided by the sexual offender. The
sheriff must promptly provide to the department the information received from the sexual
offender.1073
Within 48 hours after the report required under section 943.0435(2), a sexual offender must
report in person at a driver license office of the Department of Highway Safety and Motor Vehicles,
unless a driver license or identification card that complies with the requirements of section
322.141(3) was previously secured or updated under section 944.607. At the driver license office
the sexual offender must:
1069
943.0435(2)(b)1., Fla. Stat.
1070
943.0435(2)(b)2., Fla. Stat.
1071
943.0435(2)(b)3., Fla. Stat.
1072
943.0435(2)(c), Fla. Stat.
1073
943.0435(2), Fla. Stat.
184
1. If otherwise qualified, secure a Florida driver license, renew a Florida driver license, or
secure an identification card. The sexual offender must identify himself or herself as a sexual
offender who is required to comply with section 943.0435 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 driver license, renewed license, or identification card, and
for use by the department in maintaining current records of sexual offenders.1074
2. Pay the costs assessed by the Department of Highway Safety and Motor Vehicles for
issuing or renewing a driver license or identification card as required by this section 943.0435. The
driver license or identification card issued must be in compliance with section 322.141(3).1075
3. Provide, upon request, any additional information necessary to confirm the identity of the
sexual offender, including a set of fingerprints.1076
Each time a sexual offenders driver license or identification card is subject to renewal, and,
without regard to the status of the offenders driver license or identification card, within 48 hours
after any change in the offenders permanent, temporary, or transient residence or change in the
offenders name by reason of marriage or other legal process, the offender must report in person to
a driver license office, and is subject to the requirements specified in section 943.0435(3). The
Department of Highway Safety and Motor Vehicles must forward to the department all photographs
and information provided by sexual offenders. Notwithstanding the restrictions set forth in section
322.142, the Department of Highway Safety and Motor Vehicles may release a reproduction of a
color-photograph or digital-image license to the Department of Law Enforcement for purposes of
public notification of sexual offenders as provided in sections 943.043 and 944.606. A sexual
offender who is unable to secure or update a driver license or identification card with the Department
of Highway Safety and Motor Vehicles as provided in sections 943.0435(3) and (4) must also report
any change in the sexual offenders permanent, temporary, or transient residence or change in the
offenders name by reason of marriage or other legal process within 48 hours after the change to the
sheriffs office in the county where the offender resides or is located and provide confirmation that
he or she reported such information to the Department of Highway Safety and Motor Vehicles.1077
Note that this provision in the law has been interpreted to apply only to an offenders change of
1074
943.0435(3)(a), Fla. Stat.
1075
943.0435(3)(b), Fla. Stat.
1076
943.0435(3)(c), Fla. Stat.
1077
943.0435(4)(a), Fla. Stat.
185
residence within the state of Florida, and not to an offenders failure to report a change of residence
outside the country to the states driver license office.1078
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 or temporary
residence.1079
A sexual offender must report in person at the sheriffs office in the county in which he or
she is located within 48 hours after establishing a transient residence and thereafter must report in
person every 30 days to the sheriffs office in the county in which he or she is located while
maintaining a transient residence. The sexual offender must provide the addresses and locations
where he or she maintains a transient residence. Each sheriffs office must establish procedures for
reporting transient residence information and provide notice to transient registrants to report transient
residence information as required in this subparagraph. Reporting to the sheriffs office as required
by section 943.0435(4) does not exempt registrants from any reregistration requirement. The sheriff
may coordinate and enter into agreements with police departments and other governmental entities
to facilitate additional reporting sites for transient residence registration required in this section
943.0435(4). The sheriffs office must, within 2 business days, electronically submit and update all
information provided by the sexual offender to the department.1080
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. When the sheriff receives the report, the sheriff must promptly convey
the information to the department. An offender who makes a report as required under section
943.0435(b) but fails to make a report as required under this paragraph commits a felony of the
second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.1081
1078
Figeroa v. State, So. 3d , 2015 WL 248853 (Fla. 2d DCA 2015).
1079
943.0435(4)(b)1., Fla. Stat.
1080
943.0435(4)(b)2, Fla. Stat.
1081
943.0435(4)(c), Fla. Stat.
186
A sexual offender must register all electronic mail addresses and Internet identifiers with the
department before using such electronic mail addresses and Internet identifiers. The department
must establish an online system through which sexual offenders may securely access and update all
electronic mail address and Internet mail information.1082
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.
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 Florida to
establish residence in another state or jurisdiction or within 21 days before his or her planned
departure date if the intended residence of 5 days or more is outside of the United States. The
notification must include the address, municipality, county, state, and country of intended residence.
The sheriff must promptly provide to the department the information received from the sexual
offender. The department must notify the statewide law enforcement agency, or a comparable
agency, in the intended state, jurisdiction, or county of residence of the sexual offenders intended
residence.1083 A sexual offender who indicates his or her intent to establish a permanent, temporary,
or transient residence in another state, a jurisdiction other than the State of Florida, or another
country and later decides to remain in Florida must, within 48 hours after the date upon which the
sexual offender indicated he or she would leave Florida, report in person to the sheriff to which the
sexual offender reported the intended change of permanent, temporary, or transient residence, and
report his or her intent to remain in Florida.1084
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. 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
offense since release, provided that the sexual offenders requirement to register was not based upon
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)(a)2. where the court finds
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 the
offense involved the use of force or coercion and unclothed genitals or genital area; any attempt or
1082
943.0435(4)(e), Fla. Stat.
1083
943.0435(7), Fla. Stat.
1084
943.0435(8), Fla. Stat.
187
conspiracy to commit any such offense; a violation of similar law of another jurisdiction; or a
violation of a similar offense committed in Florida which has been redesignated from a former
statute number to one of those listed in this subparagraph, may petition the criminal division of the
circuit court of the circuit where the conviction or adjudication occurred for the purpose of removing
the requirement for registration as a sexual offender.1085
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 of 20061086 and any other federal standards
applicable to the removal of registration requirements for a sexual offender or required to be met as
a condition for the receipt of federal funds by Florida; 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 section 943.0435(11)(a).1087 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.1088
For purposes of this section 943.0435(11)(a)4.a., the registration period of a sexual offender
sentenced to a term of incarceration or committed to a residential program begins upon the
offenders release from incarceration or commitment for the most recent conviction that required the
offender to register.1089 A sexual offenders registration period is tolled during any period in which
the offender is incarcerated, civilly committed, detained pursuant to chapter 985, or committed to
a residential program.1090 Except as provided in section 943.0435(11)(a)4.e., if the sexual offender
is only sentenced to a term of supervision for the most recent conviction that required the offender
1085
943.0435(11)(a)1., Fla. Stat.
1086
See 42 U.S.C.A. 16901 et seq.
1087
943.0435(11)(a)2., Fla. Stat.
1088
943.0435(11)(a)3., Fla. Stat.
1089
943.0435(11)(a)4.a, Fla. Stat.
1090
943.0435(11)(a)4.b, Fla. Stat.
188
to register as a sexual offender or is only subject to a period of supervision for that conviction, the
registration period begins when the term or period of supervision for that conviction begins.1091
Except as provided in section 943.0435(11)(a)4.e., if the sexual offender is sentenced to a
term of supervision that follows a term of incarceration for the most recent conviction that required
the offender to register as a sexual offender or is subject to a period of supervision that follows
commitment to a residential program for that conviction, the registration period begins when the
term or period of supervision for that conviction begins.1092 If a sexual offender is sentenced to a
term of more than 25 years supervision for the most recent conviction that required the offender to
register as a sexual offender, the sexual offender may not petition for removal of the requirement for
registration as a sexual offender until the term of supervision for that conviction is completed.1093
A sexual offender as defined in section 943.0435(1)(a)1.b. 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 Florida.1094
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 offenders birth month to the sheriffs
office in the county in which he or she resides or is otherwise located to reregister.1095 However, a
sexual offender who is required to register 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)(a)2. 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 the use of force
or coercion and 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; a violation of a similar law of another jurisdiction; or a violation of a similar offense
1091
943.0435(11)(a)4.c, Fla. Stat.
1092
943.0435(11)(a)4.d, Fla. Stat.
1093
943.0435(11)(a)4.e, Fla. Stat.
1094
943.0435(11)(b), Fla. Stat.
1095
943.0435(14)(a), Fla. Stat.
189
committed in Florida which has been redesignated from a former statute number to one of those
listed in section 943.0435(14), must reregister each year during the month of the sexual offenders
birthday and every third month thereafter.1096
The sheriffs office may determine the appropriate times and days for reporting by the sexual
offender, which must be consistent with the reporting requirements of section 943.0435(14).
Reregistration must include any changes to the following information:
1. Name; social security number; age; race; sex; date of birth; height; weight; tattoos or other
identifying marks; hair and eye color; address of any permanent residence and address of any current
temporary residence, within Florida or out of state, including a rural route address and a post office
box; if no permanent or temporary address, any transient residence within Florida; address, location
or description, and dates of any current or known future temporary residence within Florida or out
of state; all electronic mail addresses or Internet identifiers required to be provided pursuant to
section 943.0435(4)(e); all home telephone numbers and cellular telephone numbers; date and place
of any employment; the make, model, color, vehicle identification number (VIN), and license tag
number of all vehicles owned; fingerprints; palm prints; and photograph. A post office box may not
be provided in lieu of a physical residential address. The sexual offender must also produce his or
her passport, if he or she has a passport, and, if he or she is an alien, must produce or provide
information about documents establishing his or her immigration status. The sexual offender must
also provide information about any professional licenses he or she has.1097
2. If the sexual offender is enrolled, volunteering, employed, or carrying on a vocation at an
institution of higher education in Florida, 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, volunteer, or employment status.1098
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 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.1099
1096
943.0435(14)(b), Fla. Stat.
1097
943.0435(14)(c)1., Fla. Stat.
1098
943.0435(14)(c)2, Fla. Stat.
1099
943.0435(14)(c)3, Fla. Stat.
190
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).1100 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.1101 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
law enforcement purposes only or may be used by the Department of Law Enforcement for purposes
of public notification.1102
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).1103
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,1104 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.1105
1100
944.607(4), Fla. Stat.
1101
944.607(7), Fla. Stat.
1102
944.607(8), Fla. Stat.
1103
944.607(9), Fla. Stat.
1104
See, 943.0435(9), Fla. Stat.
1105
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).
191
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.1106
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.1107
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:
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;1108 or
b. Any felony violation, or any attempt thereof, of section 393.135(2); section
394.4593(2); section 787.01, section 787.02, or section 787.025(2)(c), where the victim is a minor
and the defendant is not the victims parent or guardian; section 787.06(3)(b), (d), (f), or (g); former
section 787.06(3)(h); section 794.011, excluding section 794.011(10); section 794.05; former section
796.03; former section 796.035; section 800.04; section 810.145(8)(b); section 825.1025; section
827.071; section 847.0135, excluding section 847.0135(6); section 847.0145; section 916.1075(2);
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 393.135(2); section 394.4593(2); section 787.01,
section 787.02, or section 787.025(2)(c), where the victim is a minor and the defendant is not the
victims parent or guardian; section 787.06(3)(b), (d), (f), or (g); former section 787.06(3)(h); section
794.011, excluding section 794.011(10); section 794.05; former section 796.03; former section
796.035; section 800.04; section 825.1025; section 827.071; section 847.0133; section 847.0135,
1106
State v. Partlow, 840 So. 2d 1040 (Fla. 2003).
1107
Griffin v. State, 969 So. 2d 1161 (Fla. 1st DCA 2007).
1108
775.21(4)(a)1.a, Fla. Stat.
192
excluding section 847.0135(6); section 847.0145; section 916.1075(2); or section 985.701(1); or a

violation of a similar law of another jurisdiction;1109
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);1110 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.1111
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.1112
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
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.1113
1109
775.21(4)(a)1.b, Fla. Stat.
1110
775.21(4)(a)2, Fla. Stat.
1111
775.21(4)(a)3, Fla. Stat.
1112
775.21(4)(b), Fla. Stat.
1113
775.21(4)(c), Fla. Stat.
193
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).1114
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;1115
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;1116
or
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.1117
1114
775.21(4)(d), Fla. Stat.
1115
775.21(5)(a)1, Fla. Stat.
1116
775.21(5)(a)2, Fla. Stat.
1117
775.21(5)(a)3, Fla. Stat.
194
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 courts written sexual predator finding must be submitted to the Department of
Corrections.1118
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.1119
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
the court's 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.1120
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,
1118
775.21(5)(a), Fla. Stat.
1119
775.21(5)(b), Fla. Stat.
1120
775.21(5)(c), Fla. Stat.
195
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.1121
A sexual predator must register with FDLE through the sheriffs office by providing the
following information to the department:
identifying marks; 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; all any electronic mail addresses and all Internet identifiers required to be provided
pursuant to subparagraph (g)5; all home telephone numbers and cellular telephone numbers; date and
place of any employment; the make, model, color, vehicle identification number (VIN), and license
tag number of all vehicles owned; date and place of each conviction; fingerprints; palm prints; and
a brief description of the crime or crimes committed by the offender. A post office box may not be
provided in lieu of a physical residential address. The sexual predator must produce his or her
passport, if he or she has a passport, and, if he or she is an alien, must produce or provide
information about documents establishing his or her immigration status. The sexual predator must
also provide information about any professional licenses he or she has. 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 written notice of the vehicle
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 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, volunteering, or carrying on a vocation
at an institution of higher education in this state, the sexual predator must also provide to the
1121
775.21(5)(d), Fla. Stat.
196
department the name, address, and county of each institution, including each campus attended, and
the sexual predators enrollment, volunteer, or employment status. Each change in enrollment,
volunteer, or employment status must 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. The sheriff or the Department
of Corrections shall promptly notify each institution of the sexual predators presence and any
change in the sexual predators enrollment, volunteer, or employment status. A sexual predator must
report in person to the sheriffs office within 48 hours after any change in vehicles owned to report
those vehicle information changes.
2. Any other information determined necessary by FDLE, including criminal and corrections
records; nonprivileged personnel and treatment records; and evidentiary genetic markers when
available.1122
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.1123 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.1124
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.1125 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.1126
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
1122
775.21(6)(a)2, Fla. Stat.
1123
775.21(6)(b), Fla. Stat.
1124
775.21(6)(b), Fla. Stat.
1125
775.21(6)(c), Fla. Stat.
1126
775.21(6)(d), Fla. Stat.
197
predator must register in person at 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 this state and
at the sheriffs office in the county where he or she was designated a sexual predator by the court
within 48 hours after such finding is made.1127 Any change in the sexual predators permanent or
temporary residence, name, vehicles owned, or any electronic mail addresses, or Internet identifiers
required to be provided pursuant to section 775.21(6)(g)5., after the sexual predator registers in
person at the sheriffs office as provided in section 775.21(6)(e)1., must be accomplished in the
manner provided in section 775.21(6)(g), (i), and (j). When a sexual predator registers with the
sheriffs office, the sheriff must take a photograph, a set of fingerprints, and palm prints of the
predator and forward the photographs, palm prints, and fingerprints to the department, along with
the information that the predator is required to provide pursuant to section 775.21.1128
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 driver license
office of the Department of Highway Safety and Motor Vehicles and must present proof of
registration. At the driver license office the sexual predator must:
1. If otherwise qualified, secure a Florida driver license, renew a Florida driver 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 license, renewed license, or identification
card, and for use by FDLE in maintaining current records of sexual predators. A post office box may
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
color scheme, of the motor vehicle, trailer, mobile home, or manufactured home. If a sexual
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.1129
1127
775.21(6)(e)1., Fla. Stat.
1128
775.21(6)(e)2., Fla. Stat.
1129
775.21(6)(f)1, Fla. Stat.
198
2. Pay the costs assessed by the Department of Highway Safety and Motor Vehicles for
issuing or renewing a driver license or identification card as required by section 775.21. The driver
license or identification card issued to the sexual predator must comply with section 322.141(1).1130
3. Provide, upon request, any additional information necessary to confirm the identity of the
sexual predator, including a set of fingerprints.1131
Each time a sexual predators driver license or identification card is subject to renewal, and,
without regard to the status of the predators driver license or identification card, within 48 hours
after any change of the predators residence or change in the predators name by reason of marriage
or other legal process, the predator must report in person to a driver license office and is subject to
the requirements specified in section 775.21(6)(f). A sexual predator who is unable to secure or
update a driver license or identification card with the Department of Highway Safety and Motor
Vehicles as provided in section 775.21(6)(f) and (g) must also report any change of the predators
residence or change in the predators name by reason of marriage or other legal process within 48
hours after the change to the sheriffs office in the county where the predator resides or is located
and provide confirmation that he or she reported such information to the Department of Highway
Safety and Motor Vehicles.1132
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.1133
A sexual predator shall report in person at the sheriffs office in the county in which he or
she is located within 48 hours after establishing a transient residence and thereafter must report in
person every 30 days to the sheriffs office in the county in which he or she is located while
maintaining a transient residence. The sexual predator must provide the addresses and locations
where he or she maintains a transient residence. Each sheriffs office shall establish procedures for
reporting transient residence information and provide notice to transient registrants to report transient
residence information as required in this subsubparagraph. Reporting to the sheriffs office as
1130
775.21(6)(f)2, Fla. Stat.
1131
775.21(6)(f)3, Fla. Stat.
1132
775.21(6)(g)1, Fla. Stat.
1133
775.21(6)(g)2, Fla. Stat.
199
required by section 775.21(6)(g)2.b. does not exempt registrants from any reregistration requirement.
The sheriff may coordinate and enter into agreements with police departments and other
governmental entities to facilitate additional reporting sites for transient residence registration
required in section 775.21(6)(g)2.b. The sheriffs office must, within two business days,
electronically submit and update all information provided by the sexual predator to the
department.1134
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.1135
A sexual predator must register all electronic mail addresses and Internet identifiers with the
Department of Law Enforcement before using such electronic mail addresses and Internet identifiers.
The department is required to establish an online system through which sexual predators may
securely access and update all electronic mail addresses and Internet identifier information.1136
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
establish residence in another state or jurisdiction or within 21 days before his or her planned
departure date if the intended residence of five days or more is outside of the United States. The
sexual predator must provide to the sheriff the address, municipality, county, state, and country of
intended residence.1137
A sexual predator who indicates his or her intent to establish a permanent, temporary, or
transient residence in another state, a jurisdiction other than the state of Florida, or another country
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.1138
1134
775.21(6)(g)2.b., Fla. Stat.
1135
775.21(6)(g)3, Fla. Stat.
1136
775.21(g)(5), Fla. Stat.
1137
775.21(6)(i), Fla. Stat.
1138
775.21(6)(j), Fla. Stat.
200
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.1139
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
5. Whether the victim of the sexual predators offense or offenses was, at the time of the
offense, a minor or an adult.1140
A sexual predator must report in person each year during the month of the sexual predators
birthday and during every third month thereafter to the sheriffs offce 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).1141 Reregistration must include any changes to the following
information:
1139
775.21(6)(l), Fla. Stat.
1140
775.21(7)(a), Fla. Stat.
1141
775.21(8)(a), Fla. Stat.
201
identifying marks; 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; all electronic mail addresses or Internet identifiers required to be provided pursuant to
subparagraph 775.21(6)(g)5.; all home telephone numbers and number and any cellular telephone
numbers; date and place of any employment; vehicle make, model, color, vehicle identification
number (VIN), and license tag number of all vehicles owned; fingerprints; palm prints; and
photograph. A post office box may not be provided in lieu of a physical residential address. The
sexual predator must also produce his or her passport, if he or she has a passport, and, if he or she
is an alien, must produce or provide information about documents establishing his or her
immigration status. The sexual predator must also provide information about any professional
licenses he or she has.1142
2. If the sexual predator is enrolled, employed, volunteering, 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, volunteer or employment status.1143
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
color scheme, of the motor vehicle, trailer, mobile home, or manufactured home. If the sexual
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.1144
Designation as a sexual predator under the Sexual Predator Act,1145 is also not considered a
punishment in the constitutional sense.1146 The registration and reporting requirements of the
1142
775.21(8)(a)1., Fla. Stat.
1143
775.21(8)(a)2, Fla. Stat.
1144
775.21(8)(a)3, Fla. Stat.
1145
775.21, Fla. Stat.
1146
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.
202
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).1147
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.1148
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.1149
However, a youthful offender sentence is an adultnot a juvenilesentence, which allows
application of the Act.1150 A no contest plea where adjudication is withheld is specifically included
in the Sexual Predator Acts definition of conviction.1151 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.1152 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.1153 Note, however, that the rule
of lenity precludes the sentencing court from imposing the sexual predator designation on a
defendant when the record is unclear as to whether the qualifying offense or offenses occurred before
or after the effective date of the Sexual Predators Act.1154
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
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 Floridas Sexual Predator Act is procedural and regulatory in nature and does not
constitute punishment in violation of ex post facto clause).
1147
Boyer v. State, 946 So. 2d 75 (Fla. 1st DCA 2006) (abrogated by, Saintelien v. State, 990 So. 2d 494 (Fla. 2008)); Travis
v. State, 724 So. 2d 119, 12021 (Fla. 1st DCA 1998).
1148
Therrien v. State, 914 So. 2d 942 (Fla. 2005).
1149
State v. J.M., 824 So. 2d 105, 109 (Fla. 2002).
1150
Dejesus v. State, 862 So. 2d 847, 849 (Fla. 4th DCA 2003).
1151
775.21(1)(c), Fla. Stat. (2002).
1152
Kelly v. State, 795 So. 2d 135, 137 (Fla. 5th DCA 2001).
1153
Miller v. State, 112 So. 3d 142 (Fla. 1st DCA 2013).
1154
Dennis v. State, 32 So. 3d 79 (Fla. 2d DCA 2009).
203
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.1155
2. For a person designated as a sexual offender under section 943.0435 or section 944.607,
the marking 943.0435.1156
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).1157 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.1158
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.1159 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
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
1155
322.141(3)(a), Fla. Stat.
1156
322.141(3)(b), Fla. Stat.
1157
322.141(4), Fla. Stat.
1158
322.141(5)(c), Fla. Stat.
1159
943.0436(1), Fla. Stat.
204
its statutorily conferred authority as such duty or authority relates to sexual predators or sexual
offenders.1160 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.1161
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:
1. Was convicted, regardless of adjudication, or adjudicated delinquent of a violation of
section 794.011, section 800.04, section 827.071, or section 847.0135(5) or of a similar offense in
another jurisdiction and if the person does not have any other conviction, regardless of adjudication,
or adjudication of delinquency, for a violation of section 794.011, section 800.04, section 827.071,
or section 847.0135(5) or for a similar offense in another jurisdiction;1162
2. Was convicted, regardless of adjudication, or adjudicated delinquent of an offense listed
in section 943.04354(1)(a) and is required to register as a sexual offender or sexual predator solely
on the basis of this conviction or adjudication; or violation;1163 or was convicted, regardless of
adjudication, or adjudicated delinquent of an offense in another jurisdiction which is similar to an
offense listed in paragraph (a) and no longer meets the criteria for registration as a sexual offender
or sexual predator under the laws of the jurisdiction in which the similar offense occurred;1164 and
3. Is not more than 4 years older than the victim of this violation who was 13 years of age
or older but younger not more than 18 years of age at the time the person committed this
violation.1165
1160
943.0436(2), Fla. Stat.
1161
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) (abrogated by, Jackson v. State, 983 So. 2d 562 (Fla. 2008)); Travis v. State, 724 So.
2d 119, 12021 (Fla. 1st DCA 1998).
1162
943.04354(1)(a), Fla. Stat.
1163
943.04354(1)(b)1., Fla. Stat.
1164
943.04354(1)(b)2., Fla. Stat.
1165
943.04354(1)(c), Fla. Stat.; State v. Samuels, 76 So. 3d 1109 (Fla. 5th DCA 2011) (defendant, who was four years,
one mont h, 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).
205
If a person meets the criteria in section 943.04354(1), the person may move the criminal
division of the circuit court of the circuit where the conviction or adjudication for the qualifying
offense occurred 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 section
943.04354(1) and that removal of the registration requirement will not conflict with federal law.1166
An example of where removal would conflict with federal law would be where the defendants
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.1167 A person
convicted or adjudicated delinquent of an offense in another jurisdiction which is similar to an
offense listed in section 943.04354(1)(a) must provide the court written confirmation that he or she
is not required to register in the jurisdiction in which the conviction or adjudication occurred.1168
The state attorney and the Florida Department of Law Enforcement must be given notice of
the motion at least 21 days before the date of sentencing, or disposition of the violation, or hearing
on the motion and may present evidence in opposition to the requested relief or may otherwise
demonstrate why the motion should be denied. At sentencing, disposition of the violation, or hearing
on the motion, the court must rule on the this motion, and, if the court determines the person meets
the criteria in section 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. The
court must instruct the person to provide the department a certified copy of the order granting relief.
If the court denies the motion, the person is not authorized under section 943.04354 to file another
motion for removal of the registration requirement.1169
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
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.1170
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, section 827.071, or section 847.0135(5), or a similar
1166
943.04354(2), Fla. Stat.
1167
See, Miller v. State, 17 So. 3d 778 (Fla. 5th DCA 2009).
1168
943.04354(2), Fla. Stat.
1169
943.04354(2), Fla. Stat.
1170
Matos v. State, 111 So. 3d 964 (Fla. 5th DCA 2013).
206
offense in another jurisdiction, the registration requirement will not apply to the person and the
department must 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 persons criminal history or record that is otherwise available as a public record.1171
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.1172 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.1173 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 subject's liberty.1174
Baker Act commitment1175
The Florida Mental Health Act, commonly known as the Baker Act,1176 is Floridas original
civil commitment law. Pursuant to section 394.463(1) of the Act, a person may be taken to a
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
1171
943.04354(3), Fla. Stat.
1172
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)).
1173
Shuman v. State, 358 So. 2d 1333, 1335 (Fla. 1978).
1174
Pullen v. State, 802 So. 2d 1113 (Fla. 2001).
1175
See, 2014 Baker Act Handbook and User Reference Guide, Florida Department of Children and Families, found at
http://bakeract.fmhi.usf.edu/document/2014BakerActM anual.pdf.
1176
394.451 to 394.4789, Fla. Stat.
207
future, as evidenced by recent behavior. Section 394.463(2) thereafter explains the detailed
procedures for the conduct of an involuntary examination.1177 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.1178
Jimmy Ryce Act commitment
The Jimmy Ryce Involuntary Civil Commitment for Sexually Violent Predators Treatment
and Care Act 1 1 7 9 provides a civil commitment procedure for the long-term care and treatment of
sexually violent predators. In creating this Act, the Florida Legislature has found that:
1. A small but extremely dangerous number of sexually violent predators exist who do not
have a mental disease or defect that renders them appropriate for involuntary treatment under the
Baker Act,1180 which is intended to provide short-term treatment to individuals with serious mental
disorders and then return them to the community;
2. In contrast to persons appropriate for civil commitment under the Baker Act, sexually
violent predators generally have antisocial personality features which are unamenable to existing
mental illness treatment modalities, and those features render them likely to engage in criminal,
sexually violent behavior;
3. The likelihood of sexually violent predators engaging in repeat acts of predatory sexual
violence is high;
4. The existing involuntary commitment procedures under the Baker Act for the treatment
and care of mentally ill persons are inadequate to address the risk these sexually violent predators
pose to society; and
5. The prognosis for rehabilitating sexually violent predators in a prison setting is poor, the
treatment needs of this population are very long term, and the treatment modalities for this
1177
394.463(2), Fla. Stat.
1178
394.467, Fla. Stat.
1179
394.479 to 394.484, Fla. Stat.
1180
394.451 to 394.47891, Fla. Stat.
208
population are very different from the traditional treatment modalities for people appropriate for
commitment under the Baker Act.1181
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 for treatment until the persons
mental abnormality or personality disorder has changed and the person is safe to be at large.1182 The
expressed legislative intent is that persons who are subject to the civil commitment procedure for
sexually violent predators under the Jimmy Ryce Act be subject to the procedures established
thereunder and not to the provisions of the Baker Act or less restrictive alternatives. 1 1 8 3 This Act
applies to all persons currently in custody who have been convicted of a sexually violent offense, as
that term is defined in section 394.912(9), as well as to all persons convicted of a sexually violent
offense and sentenced to total confinement in the future.1184
The term custody under the Act applies only to individuals in lawful custody, not merely
those individuals in actual custody.1185 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. 1 1 8 6 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.1187 Probation is not custody within the meaning of the Act. 1 1 88 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).1189
1181
394.910, Fla. Stat.
1182
See, Fla. H.R. Comm. on Fam. Law & Child., CS for HB 3327 (1998) Staff Analysis 1 (Final M ay 26, 1998).
1183
394.911, Fla. Stat.
1184
394.925, Fla. Stat.
1185
State v. Phillips, 119 So. 3d 1233 (Fla. 2013); State v. Atkinson, 831 So. 2d 172 (Fla. 2002).
1186
Larimore v. State, 2 So. 3d 101 (Fla. 2008), as revised on denial of rehg, (Jan. 29, 2009).
1187
State v. Phillips, 119 So. 3d 1233 (Fla. 2013).
1188
State v. Siddal, 772 So. 2d 555 (Fla. 3d DCA 2000).
1189
See, State v. Ducharme, 892 So. 2d 1133 (Fla. 5th DCA 2004).
209
Person means an individual 18 years of age or older who is a potential or actual subject of
proceedings under the Jimmy Ryce Act.1190 Agency with jurisdiction means the entity that
releases, upon lawful order or authority, a person who is serving a sentence in the custody of the
Department of Corrections, a person who was adjudicated delinquent and is committed to the
custody of the Department of Juvenile Justice, a person who was involuntarily committed to the
custody of the Department of Children and Families upon an adjudication of not guilty by reason of
insanity, or a person who is serving a sentence in a county or municipal jail for a sexually violent
offense as defined in section 394.912(9)(i).1191
Likely to engage in acts of sexual violence means the persons propensity to commit acts
of sexual violence is of such a degree as to pose a menace to the health and safety of others.1192
Mental abnormality means a mental condition affecting a persons emotional or volitional capacity
which predisposes the person to commit sexually violent offenses.1193 Sexually motivated means
that one of the purposes for which the defendant committed the crime was for sexual gratification.1194
Convicted of a sexually violent offense means a person who has been: (a) Adjudicated
guilty of a sexually violent offense after a trial, guilty plea, or plea of nolo contendere; (b)
adjudicated not guilty by reason of insanity of a sexually violent offense; or (c) adjudicated
delinquent of a sexually violent offense after a trial, guilty plea, or plea of nolo contendere.1195
Sexually violent offense means:
1. Murder of a human being while engaged in sexual battery in violation of section
782.04(1)(a)2.;1196
2. Kidnapping of a child under the age of 13 and, in the course of that offense, committing
sexual battery or a lewd, lascivious, or indecent assault or act upon or in the presence of the child;1197
1190
394.912(6), Fla. Stat.
1191
394.912(1), Fla. Stat.
1192
394.912(4), Fla. Stat.
1193
394.912(5), Fla. Stat.
1194
394.912(8), Fla. Stat.
1195
394.912(2), Fla. Stat.
1196
394.912(9)(a), Fla. Stat.
1197
394.912(9)(b), Fla. Stat.
210
3. Committing the offense of false imprisonment upon a child under the age of 13 and, in
the course of that offense, committing sexual battery or a lewd, lascivious, or indecent assault or act
upon or in the presence of the child;1198
4. Sexual battery in violation of section 794.011;1199
5. Lewd, lascivious, or indecent assault or act upon or in presence of the child in violation
of section 800.04 or section 847.0135(5);1200
6. An attempt, criminal solicitation, or conspiracy, in violation of section 777.04, of a
sexually violent offense;1201
7. Any conviction for a felony offense in effect at any time before October 1, 1998, which
is comparable to a sexually violent offense under section 393.912(9)(a)(f) or any federal conviction
or conviction in another state for a felony offense that in Florida would be a sexually violent
offense;1202
8. Any criminal act that, either at the time of sentencing for the offense or subsequently
during civil commitment proceedings under the Jimmy Ryce Act, has been determined beyond a
reasonable doubt to have been sexually motivated;1203 or
9. A criminal offense in which the state attorney refers a person to the department for civil
commitment proceedings pursuant to section 394.9125.1204
Sexually violent predator means any person who has been convicted of a sexually violent
offense and 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 facility for long-term control, care,
and treatment.1205
1198
394.912(9)(c), Fla. Stat.
1199
394.912(9)(d), Fla. Stat.
1200
394.912(9)(e), Fla. Stat.
1201
394.912(9)(f), Fla. Stat.
1202
394.912(9)(g), Fla. Stat.
1203
394.912(9)(h), Fla. Stat.
1204
394.912(9)(i), Fla. Stat.
1205
394.912(10), Fla. Stat.
211
A state attorney must refer a person to the department for civil commitment proceedings if
the state attorney receives an arrest alert on the person pursuant to section 394.926(4), and the person
is subsequently sentenced to a term of imprisonment in a county or municipal jail for any criminal
offense.1206 A state attorney may refer a person to the department for civil commitment proceedings
if the person is required to register as a sexual offender pursuant to section 943.0435, has previously
been convicted of a sexually violent offense as defined in section 394.912(9)(a)(h), and has been
sentenced to a term of imprisonment in a county or municipal jail for any criminal offense.1207 A
state attorney who refers a person for civil commitment pursuant to subsection 394.9125(1) or (2)
must notify the county or municipal jail to which the person has been sentenced within 24 hours after
the referral is made.1208
If a person is sentenced to a term of imprisonment in a county or municipal jail but is not
subsequently totally confined in the jail due to receiving credit for time served, the state attorney may
file a petition with the circuit court within 120 hours after such persons sentencing proceeding
requesting the court to order such person into the department's custody for purposes of initiating civil
commitment proceedings.1209 Total confinement means that the person is currently being held in
any physically secure facility being operated or contractually operated for the Department of
Corrections, the Department of Juvenile Justice, or the Department of Children and Families. A
person must also be deemed to be in total confinement for applicability of provisions under the Act
if the person is serving an incarcerative sentence under the custody of the Department of Corrections
or the Department of Juvenile Justice and is being held in any other secure facility for any reason,
the person is serving a sentence in a county or municipal jail for a sexually violent offense as defined
in section 394.912(9)(I), or a court or the agency with jurisdiction determines that the person who
is being held should have been lawfully released at an earlier date and that the provisions of the Act
should have been applicable to the person on the date he or she should have been lawfully
released.1210
If the judge determines that there is probable cause to believe that the person should have
been referred to the department pursuant to section 394.9125(1) or (2) but that the referral was not
made because the person was not totally confined in a county or municipal jail due to receiving credit
1206
394.9125(1), Fla. Stat.
1207
394.9125(2), Fla. Stat.
1208
394.9125(3), Fla. Stat.
1209
394.9125(4)(a), Fla. Stat.
1210
394.912(11), Fla. Stat.
212
for time served, the judge must order that the person be taken into custody and delivered to the
custody of the department for civil commitment proceedings.1211
The Secretary of the Department of Children and Families or his or her designee is required
to establish a multidisciplinary team or teams.1212 Each team shall include, but need not be limited
to, two licensed psychiatrists or psychologists or one licensed psychiatrist and one licensed
psychologist who shall each have experience in or relevant to the evaluation or treatment of persons
with mental abnormalities. Such evaluations must include, but need not be limited to, the members:
1. Scope of knowledge and understanding of clinical research regarding risk factors for
sexual deviance and recidivism;
2. Ability to identify relevant clinical data from review of criminal records and other
information, including recommendations of law enforcement and insights from victim advocates;
and
3. Ability to apply clinical information in a structured assessment of both static risk factors
and dynamic predictors of recidivism.1213
The agency with jurisdiction over a person who has been convicted of a sexually violent
offense must give written notice to the multidisciplinary team, and must provide a copy of the notice
to the state attorney of the circuit in which that person was last convicted of a sexually violent
offense. If the person has never been convicted of a sexually violent offense in Florida but has been
convicted of a sexually violent offense in another state or in federal court, the agency with
jurisdiction must give written notice to the multidisciplinary team and a copy to the state attorney
of the circuit in which the person was last convicted of any offense in Florida. If the person is being
confined in Florida pursuant to interstate compact and has a prior or current conviction for a sexually
violent offense, the agency with jurisdiction must give written notice to the multidisciplinary team
and must provide a copy to the state attorney of the circuit in which the person plans to reside upon
release or, if no residence in this state is planned, the state attorney in the circuit in which the facility
from which the person to be released is located.1214
Except as provided in section 394.9135, the written notice must be given:
1211
394.9125(4)(a), Fla. Stat.
1212
394.913(3)(a), Fla. Stat.
1213
394.913(3)(b), Fla. Stat.
1214
394.913(1), Fla. Stat.
213
1. At least 545 days before the anticipated release from total confinement of a person serving
a sentence in the custody of the Department of Corrections, except that in the case of a person who
is totally confined for a period of less than 545 days, written notice must be given as soon as
practicable;1215
2. At least 180 days before the anticipated release from residential commitment of a person
committed to the custody of the Department of Juvenile Justice, except that in the case of a person
who is committed to low or moderate risk facility, written notice must be given as soon as
practicable;1216
3. At least 180 days before the anticipated hearing regarding possible release of a person
committed to the custody of the department who has been found not guilty by reason of insanity or
mental incapacity of a sexually violent offense;1217 or
4. At least 180 days before the anticipated release from total confinement of a person serving
a sentence in a county or municipal jail, except that in the case of a person who is totally confined
for a period of less than 180 days, written notice must be given as soon as practicable.1218
The agency having jurisdiction is required to provide the multidisciplinary team with the
following information:
1. The persons name; identifying characteristics; anticipated future residence; the type of
supervision the person will receive in the community, if any; and the persons offense history;1219
2. The persons criminal history, including police reports, victim statements, presentence
investigation reports, postsentence investigation reports, if available, and any other documents
containing facts of the persons criminal incidents or indicating whether the criminal incidents
included sexual acts or were sexually motivated;1220
1215
394.913(1)(a), Fla. Stat.
1216
394.913(1)(b), Fla. Stat.
1217
394.913(1)(c), Fla. Stat.
1218
394.913(1)(d), Fla. Stat.
1219
394.913(2)(a), Fla. Stat.
1220
394.913(2)(b), Fla. Stat.
214
3. Mental health, mental status, and medical records, including all clinical records and notes
concerning the person;1221
4. Documentation of institutional adjustment and any treatment received and, in the case of
an adjudicated delinquent committed to the Department of Juvenile Justice, copies of the most recent
performance plan and performance summary;1222 and
5. If the person was returned to custody after a period of supervision, documentation of
adjustment during supervision and any treatment received.1223
The department is required to maintain data on each case on the recommendations of the
clinical evaluators in their clinical evaluations, the final recommendations of the multidisciplinary
team, the petitions filed by state attorneys, and the results of those petitions. The department is also
required to analyze, at least annually, this data to assess inter-rater reliability between clinical
evaluators and the level of agreement between an individual evaluators recommendation and the
multidisciplinary teams recommendation for the same individual. The department shall also assess
trends in multidisciplinary team recommendations, state attorneys filings, and the results of such
filings. The state attorneys must provide information to the department regarding filings and their
results as necessary to maintain this data.1224
The multidisciplinary team is required to assess and evaluate each person referred to the team
and prioritize the assessment and evaluation of persons referred under section 394.193(1) based on
the persons scheduled release date. A second clinical evaluation must be conducted if a member
of the multidisciplinary team questions the conclusion of the first clinical evaluation.1225
Before recommending that a person meets the definition of a sexually violent predator, the
person must be offered a personal interview. If the person agrees to participate in a personal
interview, at least one member of the team who is a licensed psychiatrist or psychologist must
conduct a personal interview of the person. If the person refuses to fully participate in a personal
interview, the multidisciplinary team may proceed with its recommendation without the interview.1226
1221
394.913(2)(c), Fla. Stat.
1222
394.913(2)(d), Fla. Stat.
1223
394.913(2)(e), Fla. Stat.
1224
394.913(3)(c), Fla. Stat.
1225
394.913(3), Fla. Stat. See Laws of Florida Ch. 2014-2, Laws of Florida, p. 5, and Ch. 2014-3, which separately created
different new subparagraphs (3)(d).
1226
394.913(3)(e), Fla. Stat.
215
The multidisciplinary team is required to complete all clinical evaluations and provide the
state attorney a written assessment and recommendation as to whether the person meets the
definition of a sexually violent predator at least 1 month before the persons scheduled release date
from the Department of Corrections, the Department of Juvenile Justice, or the Department of
Children and Families. The multidisciplinary team must complete all clinical evaluations and
provide the state attorney a written assessment and recommendation as to whether the person meets
the definition of a sexually violent predator at least 24 hours before the persons scheduled release
date from a county or municipal jail. The department must recommend that the state attorney file
a petition for civil commitment if at least two members of the multidisciplinary team determine that
the person meets the definition of a sexually violent predator. When the department determines that
a person who has received a clinical evaluation does or does not meet the definition of a sexually
violent predator, the written assessment and recommendation must be sent to the state attorney. If
the state attorney questions, in writing, the determination that the person does or does not meet the
definition of a sexually violent predator, the multidisciplinary team must reexamine the case before
a final written assessment and recommendation is provided to the state attorney.1227 Section 394.913
is not jurisdictional, and failure to comply with it in no way prevents the state attorney from
proceeding against a person otherwise subject to the Jimmy Ryce Act.1228
If the anticipated release from total confinement of a person who has been convicted of a
sexually violent offense becomes immediate for any reason, the agency with jurisdiction must upon
immediate release from total confinement transfer that person to the custody of the department to
be held in an appropriate secure facility. 1 229 If a person who committed a sexually violent offense
and who is serving an incarcerative sentence under the custody of the Department of Corrections,
the Department of Juvenile Justice, or a local detention facility, or who is committed to the custody
of the department due to an adjudication of not guilty by reason of insanity is released, the state
attorney, as designated in section 394.913, may file a petition with the circuit court within 120 hours
after the persons release alleging that: (1) Section 394.9125, section 394.913, or section 394.9135
requires that the person be referred for consideration for civil commitment before release and the
person was not referred because of a mistake, oversight, or intentional act; or (2) the person was
referred for commitment consideration but, through a mistake, oversight, or intentional act, was
released rather than transferred to the custody of the Department of Children and Families as
required by the Jimmy Ryce Act. 1 2 30 If the judge determines that there is probable cause to believe
that the person was released in contravention of section 394.913 or section 394.9135, the judge must
1227
394.913(3)(f), Fla. Stat.
1228
394.913(5), Fla. Stat.
1229
394.9135(1)(a), Fla. Stat.
1230
394.9135(1)(b), Fla. Stat.
216
order the person to be taken into custody and delivered to an appropriate secure facility designated
by the Department of Children and Families.1231
Within 72 hours after transfer pursuant to section 394.9135(1)(a) or receipt into the
departments custody pursuant to section 394.9135(1)(b) or section 394.9125(4), the
multidisciplinary team must assess whether the person meets the definition of a sexually violent
predator. If at least two members of the multidisciplinary team, after all clinical evaluations have
been evaluated, determine that the person does not meet the definition of a sexually violent predator,
that person must be immediately released. If the multidisciplinary team determines that the person
meets the definition of a sexually violent predator, the team must provide the state attorney, as
designated by section 394.913, with its written assessment and recommendation within the 72-hour
period or, if the 72-hour period ends after 5 p.m. on a working day or on a weekend or holiday,
within the next working day.1232 Within 48 hours after receipt of the written assessment and
recommendation from the multidisciplinary team, the state attorney, as designated in section
394.913, may file a petition with the circuit court alleging that the person is a sexually violent
predator and stating facts sufficient to support the allegation. If a petition is not filed within 48 hours
after receipt of the written assessment and recommendation by the state attorney, the person must
be immediately released, except that, if the 48-hour period ends after 5 p.m. on a working day or on
a weekend or holiday, the petition may be filed on the next working day without resulting in the
persons release. If a petition is filed pursuant to section 394.9135 and the judge determines that
there is probable cause to believe that the person is a sexually violent predator, the judge shall order
that the person be maintained in custody and held in an appropriate secure facility for further
proceedings in accordance with the Act.1233 Section 394.9135 is not jurisdictional, and failure to
comply with the time limitations, which results in the release of a person who has been convicted
of a sexually violent offense, is not dispositive of the case and does not prevent the state attorney
from proceeding against a person otherwise subject to the Act.1234
After receipt from the multidisciplinary team of the written assessment and positive or
negative recommendation as to whether the person meets the definition of a sexually violent
predator, the state attorney, in accordance with section 394.913, may file a petition with the circuit
court alleging that the person is a sexually violent predator and stating facts sufficient to support such
allegation. A fee may not be charged for the filing of a petition under section 394.914.1235
1231
394.9135(1), Fla. Stat.
1232
394.9135(2), Fla. Stat.
1233
394.9135(3), Fla. Stat.
1234
394.9135(4), Fla. Stat.
1235
394.914, Fla. Stat.
217
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 confinement. 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 a petition for commitment by the state attorney.1236 The recommendation
of the multidisciplinary team does not, however, have to be unanimous.1237
When the state attorney files a petition seeking to have a person declared a sexually violent
predator, the judge must determine whether probable cause exists to believe that the person named
in the petition is a sexually violent predator. If the judge determines that there is probable cause to
believe that the person is a sexually violent predator, the judge must order that the person remain in
custody and be immediately transferred to an appropriate secure facility if the persons incarcerative
sentence expires.1238 Upon the expiration of the incarcerative sentence and before the release from
custody of a person whom the multidisciplinary team recommends for civil commitment, but after
the state attorney files a petition under section 394.914, the court may conduct an adversarial
probable cause hearing if it determines such hearing is necessary. The court must only consider
whether to have an adversarial probable cause hearing in cases where the failure to begin a trial is
not the result of any delay caused by the respondent. The person shall be provided with notice of,
and an opportunity to appear in person at, an adversarial hearing. At this hearing, the judge is
required to receive evidence and hear argument from the person and the state attorney and determine
whether probable cause exists to believe that the person is a sexually violent predator.1239 At the
adversarial probable cause hearing, the person has the right to be represented by counsel, present
evidence, cross- examine any witnesses who testify against the person, and view and copy all
petitions and reports in the court file. 1 2 40 If the court again concludes that there is probable cause to
believe that the person is a sexually violent predator, the court must order that the person be held in
an appropriate secure facility upon the expiration of his or her incarcerative sentence.1241 After a
court finds probable cause to believe that the person is a sexually violent predator, the person must
be held in custody in a secure facility without opportunity for pretrial release or release during the
trial proceedings.1242
1236
Harden v. State, 932 So. 2d 1152 (Fla. 3d DCA 2006).
1237
In re Commitment of Heath, 895 So. 2d 1258 (Fla. 2d DCA 2005).
1238
394.915(1), Fla. Stat.
1239
394.915(2), Fla. Stat.
1240
394.915(3), Fla. Stat.
1241
394.915(4), Fla. Stat.
1242
394.915(5), Fla. Stat.
218
In all civil commitment proceedings for sexually violent predators under the Jimmy Ryce
Act, the following shall apply: The Florida Rules of Civil Procedure and the Florida Rules of
Evidence apply unless otherwise specified in the Act.1243 The psychotherapist-patient privilege under
section 90.503 does not exist or apply for communications relevant to an issue in proceedings to
involuntarily commit a person under the Act.1244 The court may consider evidence of prior behavior
by a person who is subject to proceedings under the Act if such evidence is relevant to proving that
the person is a sexually violent predator.1 2 4 5 Hearsay evidence, including reports of a member of the
multidisciplinary team or reports produced on behalf of the multidisciplinary team, is admissible in
proceedings under the Act unless the court finds that such evidence is not reliable. In a trial,
however, hearsay evidence may not be used as the sole basis for committing a person under the
Act.1246 Rules adopted under section 394.930 shall not constitute: (a) An evidentiary predicate for
the admission of any physical evidence or testimony; (b) a basis for excluding or otherwise limiting
the presentation of any physical evidence or testimony in judicial proceedings under this part; or (c)
elements of the cause of action that the state needs to allege or prove in judicial proceedings under
the Act.1247
If the person who is subject to proceedings under the Act refuses to be interviewed by or fully
cooperate with members of the multidisciplinary team or any state mental health expert, the court
may, in its discretion: (a) Order the person to allow members of the multidisciplinary team and any
state mental health experts to review all mental health reports, tests, and evaluations by the persons
mental health expert or experts; or (b) prohibit the persons mental health experts from testifying
concerning mental health tests, evaluations, or examinations of the person.1248 The failure of any
party to comply with such rules does not constitute a defense in any judicial proceedings under the
Act.1249
Within 30 days after the determination of probable cause, the court must conduct a trial to
determine whether the person is a sexually violent predator.1250 The trial may be continued once
upon the request of either party for not more than 120 days upon a showing of good cause, or by the
1243
394.9155(1) and (2), Fla. Stat.
1244
394.9155(3), Fla. Stat.
1245
394.9155(4), Fla. Stat.
1246
394.9155(5), Fla. Stat.
1247
394.9155(6), Fla. Stat.
1248
394.9155(7), Fla. Stat.
1249
394.9155, Fla. Stat.
1250
394.916(1), Fla. Stat.
219
court on its own motion in the interests of justice, when the person will not be substantially
prejudiced. No additional continuances may be granted unless the court finds that a manifest
injustice would otherwise occur.1251 At all adversarial proceedings under the Jimmy Ryce Act, the
person subject to this act is entitled to the assistance of counsel, and, if the person is indigent, the
court must appoint the public defender or, if a conflict exists, other counsel to assist the person.1252
If the person is subjected to a mental health examination under the Act, the person also may retain
experts or mental health professionals to perform an examination. If the person wishes to be
examined by a professional of the persons own choice, the examiner must be provided reasonable
access to the person, as well as to all relevant medical and mental health records and reports. In the
case of a person who is indigent, the court, upon the persons request, must determine whether such
an examination is necessary. If the court determines that an examination is necessary, the court must
appoint a mental health professional and determine the reasonable compensation for the
professionals services, which must be paid by the state.1253 The person or the state attorney has the
right to demand that the trial be before a jury of six members. A demand for a jury trial must be
filed, in writing, at least 5 days before the trial. If no demand is made, the trial must be to the
court.1254
The court or jury must determine by clear and convincing evidence whether the person is a
sexually violent predator.1255 For someone to be civilly committed under the Ryce Act, a fact-finder
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.1256 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.1257
If the determination is made by a jury, the verdict must be unanimous. If the jury is unable
to reach a unanimous verdict, the court must declare a mistrial and poll the jury. If a majority of the
1251
394.916(2), Fla. Stat.
1252
394.916(3), Fla. Stat.
1253
394.916(4), Fla. Stat.
1254
394.916(5), Fla. Stat.
1255
394.917(1), Fla. Stat.
1256
394.912(10), Fla. Stat.
1257
State v. White, 891 So. 2d 502 (Fla. 2004).
220
jury would find the person is a sexually violent predator, the state attorney may refile the petition and
proceed according to the provisions of the Jimmy Ryce Act. Any retrial must occur within 90 days
after the previous trial, unless the subsequent proceeding is continued in accordance with section
394.916(2). The determination that a person is a sexually violent predator may be appealed.1 2 5 8 If
the court or jury determines that the person is a sexually violent predator, upon the expiration of the
incarcerative portion of all criminal sentences and disposition of any detainers, the person must be
committed to the custody of the Department of Children and Families for control, care, and treatment
until such time as the persons mental abnormality or personality disorder has so changed that it is
safe for the person to be at large. At all times, persons who are detained or committed under this part
must be kept in a secure facility segregated from patients of the department who are not detained or
committed under this part.125 9 The public defender of the circuit in which a person was determined
to be a sexually violent predator must be appointed to represent the person on appeal. That public
defender may request the public defender who handles criminal appeals for the circuit to represent
the person on appeal in the manner provided in section 27.51(4). If the public defender is unable to
represent the person on appeal due to a conflict, the court must appoint other counsel, who must be
compensated at a rate not less than that provided for appointed counsel in criminal cases. Filing fees
for indigent appeals under the Act are waived. Costs and fees related to such appeals, including the
amounts paid for records, transcripts, and compensation of appointed counsel, must be authorized
by the trial court and paid from state funds that are appropriated for such purposes.1260
A person committed under the Jimmy Ryce Act must have an examination of his or her
mental condition once every year or more frequently at the courts discretion. The person may retain
or, if the person is indigent and so requests, the court may appoint, a qualified professional to
examine the person. Such a professional must have access to all records concerning the person. The
results of the examination must be provided to the court that committed the person under this part.
Upon receipt of the report, the court must conduct a review of the persons status.1261 The
department must provide the person with annual written notice of the persons right to petition the
court for release over the objection of the director of the facility where the person is housed. The
notice must contain a waiver of rights. The director of the facility must forward the notice and
waiver form to the court.1262 The court must hold a limited hearing 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 and the right to be present.
1258
394.917(1), Fla. Stat.
1259
394.917(2), Fla. Stat.
1260
394.917(3), Fla. Stat.
1261
394.918(1), Fla. Stat.
1262
394.918(2), Fla. Stat.
221
Both the petitioner and the respondent may present evidence that the court may weigh and consider.
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.1263 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 is required to represent the state 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.1264
If the secretary or the secretary's designee at any time determines that the person is not likely
to commit acts of sexual violence if discharged, the secretary or the secretarys designee must
authorize the person to petition the court for release. The petition must be served upon the court and
the state attorney. The court, upon receipt of such a petition, must order a trial before the court
within 30 days, unless continued for good cause.1265 The state attorney is required to represent the
state, and has the right to have the person examined by professionals of the state attorneys choice.
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.1266
A person is not prohibited from filing a petition for discharge at any time after commitment
under the Jimmy Ryce Act. However, if the person has previously filed such a petition without the
approval of the secretary or the secretarys designee and the court determined that the petition was
without merit, a subsequent petition must be denied unless the petition contains facts upon which
a court could find that the persons condition has so changed that a probable cause hearing is
warranted.1267
At any time after exhausting all administrative remedies, a person held in a secure facility
under the Jimmy Ryce Act may file a petition for habeas corpus in the circuit court for the county
in which the facility is located alleging that:
1. The persons conditions of confinement violate a statutory right under state law or a
constitutional right under the State Constitution or the United States Constitution; or
1263
394.918(3), Fla. Stat.
1264
394.918(4), Fla. Stat.
1265
394.919(1), Fla. Stat.
1266
394.919(2), Fla. Stat.
1267
394.920, Fla. Stat.
222
2. The facility in which the person is confined is not an appropriate secure facility, as that
term is used in section 394.915.1268
Upon filing a legally sufficient petition stating a prima facie case under section
394.9215(1)(a), the court may direct the Department of Children and Families to file a response. If
necessary, the court may conduct an evidentiary proceeding and issue an order to correct a violation
of state or federal rights found to exist by the court. A final order entered under section 394.9125
may be appealed to the district court of appeal. A nonfinal order may be appealed to the extent
provided by the Florida Rules of Appellate Procedure. An appeal by the department must stay the
trial courts order until disposition of the appeal.1269 Any claim referred to in section 394.9215(1)
may be asserted only as provided in section 394.9215. No claim referred to in section 394.9215(1)
can be considered in commitment proceedings brought under the Jimmy Ryce Act. A person does
not have a right to appointed counsel in any proceeding initiated under section 394.9215.1270 Relief
granted on a petition filed under section 394.9215 must be narrowly drawn and may not exceed that
which is minimally necessary to correct, in the least intrusive manner possible, the violation of the
state or federal rights of a particular petitioner. A court considering a petition under section
394.9215 must give substantial weight to whether the granting of relief would adversely impact the
operation of the detention and treatment facility or would adversely impact public safety.1271 The
court may not enter an order releasing a person from secure detention unless the court expressly finds
that no relief short of release will remedy the violation of state or federal rights which is found to
have occurred.1272
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.1273 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.1274 Any bargain a defendant may strike in a plea
agreement in a criminal case has no bearing on a subsequent involuntary civil commitment for
1268
394.9215(1)(a), Fla. Stat.
1269
394.9215(1)(b), Fla. Stat.
1270
394.9215(2), Fla. Stat.
1271
394.9215(3), Fla. Stat.
1272
394.9215(4), Fla. Stat.
1273
State v. Mitchell, 848 So. 2d 1209 (Fla. 1st DCA 2003), decision approved, 911 So. 2d 1211 (Fla. 2005).
1274
State v. McFarland, 884 So. 2d 957 (Fla. 1st DCA 2003); see, Murray v. Regier, 872 So. 2d 217 (Fla. 2002).
223
control, care, and treatment.1275 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.1276 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.1277
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.1278 The language in the Rule 3.172(c)(8) plea colloquy
warns that conviction may result in deportation. The United States Supreme Court in Padilla1279 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
1275
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).
1276
State v. Harris, 881 So. 2d 1079 (Fla. 2004).
1277
Murray v. Kearney, 770 So. 2d 273 (Fla. 4th DCA 2000), decision quashed, 872 So. 2d 217 (Fla. 2002).
1278
In re Amendments to Florida Rules of Criminal Procedure, 536 So. 2d 992 (Fla. 1988); see, Fla. R. Crim. P. 3.172(c)(8).
1279
Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).
224
consequences.1280 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.1281
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. Green1282 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.1283
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.1284
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
1280
Hernandez v. State, 124 So. 3d 757 (Fla. 2012).
1281
See, Ioselli v. State, 122 So. 3d 388 (Fla. 4th DCA 2013), on rehg, (Feb. 20, 2013).
1282
1283
1284
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).
225
entitled to relief under Rule 3.850 if the plea colloquy contained no warning of the immigration
consequences of the plea.1285 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.1286 Note, also, that while under Peart v. State,1287 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 Green1288 was issued, Green does not open a new window for him
or her.1289
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.1290 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.1291
1285
Markland v. State, 971 So. 2d 832 (Fla. 3d DCA 2007).
1286
Sabnani v. State, 5 So. 3d 808 (Fla. 3d DCA 2009); Valdez v. State, 1 So. 3d 1167 (Fla. 3d DCA 2009).
1287
Peart v. State, 756 So. 2d 42 (Fla. 2000).
1288
1289
Lopez v. State, 12 So. 3d 849 (Fla. 3d DCA 2009).
1290
784.048(9)(a), Fla. Stat.
1291
784.048(9)(b), Fla. Stat.
226
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 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 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.
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?
227
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:
(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 postconviction 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.
228
Figure 2.
Habitual Felony Offender Plea Colloquy
(1) Notice
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 Defendant:
to seek enhanced penalties as a Habitual Felony Offender, and the impact this would have on your
(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:
229
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.
Are you stipulating to the Defendants prior convictions without the need of testimony or
further proof?
To the Defendant:
Please listen carefully to the prior convictions that the State will be announcing for the
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?
to seek an enhanced penalty and that the notice was filed with the clerk on (date).
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
230
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.
Habitual Felony Offender, and sentences the Defendant to ______ years in the state prison.
231
Figure 3.
Habitual Violent Felony Offender Plea Colloquy
(1) Notice
To the Defendant:
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?
your sentence?
Are you aware that you will be required to serve each and every day of the minimum
mandatory portion of your sentence?
(3) Predicate Offenses
The State must prove that
232
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;
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 courtordered or lawfully imposed supervision that is imposed as a result of a prior conviction for an
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 release, conditional release, parole, or court-ordered or lawfully imposed supervision or other
further proof?
To the Defendant:
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
233

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 postconviction proceedings or a pardon by the Governor.
Habitual Violent Felony Offender, and sentences the Defendant to ______ years in the state prison
with a ______-year minimum mandatory.
234
Figure 4.
Violent Career Criminal Plea Colloquy
(1) Notice
To the Defendant:
to seek enhanced penalties as a Violent Career Criminal, and the impact this would have on your
(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?
your sentence?
Are you aware that you will be required to serve each and every day of the minimum
mandatory portion of your sentence?
(3) Predicate Offenses (At Least 3)
The State must prove that
235
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.
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, 1997,1292 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.
further proof?
To the Defendant:
Please listen carefully to the prior convictions that the State will be announcing for the
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.]
1292
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).
236
To the Defendant:
Are you, in fact, the Defendant in those prior cases?
Do you have any proof that any conviction was set aside by post-conviction proceedings or
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.
(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.
Violent Career Criminal, and sentences the Defendant to ______ years in the state prison with a
______-year minimum mandatory.
237

Advanced Issues in Florida Sentencing 2015

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Advanced Issues in Florida Sentencing 2015

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ADVANCED SENTENCING ISSUES

IN FLORIDA STATE COURTS

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

Prepared for the Florida Association of Criminal Defense Lawyers

2015 William H. Burgess, III and Thomson Reuters.

About the Author

The defendant is to be sentenced as a youthful offender. . . . . . . . . . . . . . . . . . . . . . . 36

Assault or battery on code inspectors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Fla. R. Crim. P. 3.170(a).

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

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

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

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

948.08(2), Fla. Stat.

948.08(3), Fla. Stat.

948.08(4), Fla. Stat.

948.08(5), Fla. Stat.

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

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

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).

832.08(1), Fla. Stat.

832.08(2), Fla. Stat.

832.08(3), Fla. Stat.

832.08(4), Fla. Stat.

832.08(5), Fla. Stat.

Misdemeanor drug pretrial diversion

948.16(1), Fla. Stat.

948.16(2)(a), Fla. Stat.

948.16(2)(b), Fla. Stat.

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.

921.00241(3), Fla. Stat.

948.001(6), Fla. Stat.

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

948.20(1), Fla. Stat.

948.20(2), Fla. Stat.

948.20(3), Fla. Stat.

Nelson v. State, 16 So. 3d 286 (Fla. 4th DCA 2009).

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

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

Fla. R. Crim. P. 3.704(d)(27).

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

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

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

Burden, level and sufficiency of proof in departure sentencing

State v. Morales, 460 So. 2d 410 (Fla. 2d DCA 1984).

Defense obligations in departure sentencing

Fla. R. Crim. P. 3.216(f).

State v. Massingill, 77 So. 3d 677 (Fla. 3d DCA 2011).

See, Savino v. Luciano, 92 So. 2d 817 (Fla. 1957).

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).

Domberg v. State, 661 So. 2d 285 (Fla. 1995).

See, Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999).