Advanced Issues in Florida Sentencing 2015

ADVANCED SENTENCING ISSUESIN FLORIDA STATE COURTS

Enhancements, Reclassifications, Special Sanctions and Alternatives toCriminal Punishment Code Sentencing

by

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

Prepared for the Florida Association of Criminal Defense LawyersCriminal Law Certification Review Seminar

Tampa Marriott Westshore HotelTampa, 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 Florida’s Sixth Judicial Circuit. Prior to taking the bench, he was a trial attorney and prosecutor for the State of Florida. JudgeBurgess has been a member of The Florida Bar since 1995 and has been Board Certified in CriminalTrial since 2001. He is a past member of The Florida Bar’s Judicial Administration and EvaluationCommittee, the Standing Committee on Professionalism, the Judicial Administration, Selection andTenure Committee, and the Standing Committee on the Unlicensed Practice of Law. Mr. Burgesshas also served as an adjunct professor at St. Petersburg College, lecturing on the law to future policeofficers. He lectures at the Criminal Law Certification Review for the Florida Association ofCriminal Defense Lawyers, and has lectured on sentencing, evidence, professionalism, trial practice,and other criminal law-related topics for the Florida Prosecuting Attorneys Association, the FloridaPublic Defender Association, the Broward County Bar Association, the St. Petersburg BarAssociation, the Pinellas County Association of Criminal Defense Lawyers, and the judges of theSixth Judicial Circuit. He has also taught trial advocacy as an adjunct professor at Stetson LawSchool. Judge Burgess received his J.D. from Washington College of Law, The AmericanUniversity; his M.P.A. from Clark University; and his B.A. in Political Science from the Universityof 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 PersianGulf. 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 athttp://floridasentencing.blogspot.com/ and http://floridasentencing.wordpress.com/..

http://floridasentencing.blogspot.com/

http://floridasentencing.wordpress.com/


Contents

Alternatives to, and mitigation of, Criminal Punishment Code sentencing in generally. . . . . . . . . . . . . . .1Preemption of felony prosecution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Non-prosecution agreements and deferred disposition agreements.. . . . . . . . . . . . . . . . . . . . . . . . . . . 2Pretrial diversion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

General pretrial diversion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Drug offender pretrial intervention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Bad check pretrial intervention program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Misdemeanor drug pretrial diversion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Post-adjudicatory drug treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10Prison diversion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Drug offender probation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Drug court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Sentencing back as a juvenile. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Downward departure from the presumptive minimum calculated sentence. . . . . . . . . . . . . . . . . . . . . 16

Burden, level and sufficiency of proof in departure sentencing. . . . . . . . . . . . . . . . . . . . . . . . 18Defense obligations in departure sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Procedures to be followed by the judge in departure sentencing.. . . . . . . . . . . . . . . . . . . . . . 21Statutory mitigating circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

The departure results from a legitimate, uncoerced plea bargain. . . . . . . . . . . . . . . . . 23The defendant was an accomplice to the offense and was a relatively minorparticipant in the criminal conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24The capacity of the defendant to appreciate the criminal nature of the conduct or toconform that conduct to the requirements of law was substantially impaired. . . . . . . . 25The defendant requires specialized treatment for a mental disorder that is unrelatedto substance abuse or addiction or for a physical disability, and the defendant isamenable to treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25The need for payment of restitution to the victim outweighs the need for a prisonsentence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26The victim was an initiator, willing participant, aggressor, or provoker of the incident. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27The defendant acted under extreme duress or under the domination of another person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29Before the identity of the defendant was determined, the victim was substantiallycompensated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30The defendant cooperated with the State to resolve the current offense or any otheroffense.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31The offense was committed in an unsophisticated manner and was an isolatedincident for which the defendant has shown remorse. . . . . . . . . . . . . . . . . . . . . . . . . 32At the time of the offense the defendant was too young to appreciate theconsequences of the offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

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The defendant is to be sentenced as a youthful offender. . . . . . . . . . . . . . . . . . . . . . . 36The defendant is a nonviolent felony offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40The defendant was making a good faith effort to obtain or provide medical assistancefor a drug-related overdose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41Substantial assistance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Non-statutory mitigating circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42Enticement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44Sentencing entrapment and sentence manipulation. . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Sentencing entrapment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45Sentence manipulation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Lower sentence of an equally or more culpable co–defendant. . . . . . . . . . . . . . . . . . 47Diminished mental capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48Extraordinary restitution .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49Extraordinary susceptibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49Totality of circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Nexus to offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50Limits on sentence mitigation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51Resentencing on remand after reversal of a downward departure. . . . . . . . . . . . . . . . . . . . . . 57

Enhancement of penalty and reclassification of offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58Upward departure under the Criminal Punishment Code for third degree felonies that are notforcible felonies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60Proof of prior conviction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62Criminal gang. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62Wearing a mask or hood. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66Evidencing prejudice while committing offense.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69Sexual battery by multiple perpetrators. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70Unlawful taking, possession, or use of law enforcement officer’s firearm. . . . . . . . . . . . . . . . 72Reclassifications of various types of batteries and assaults. . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Battery.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73Assault or battery on emergency medical care providers, firefighters, lawenforcement explorers, law enforcement officers, public transit employees or agents,or other specified officers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74Assault or battery on sexually violent predators detention or commitment facilitystaff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76Battery on detention or commitment facility staff or a juvenile probation officer. . . . . . 76Battery on health services personnel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77Battery of facility employee by throwing, tossing, or expelling certain fluids ormaterials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77Assault or battery on persons 65 years of age or older. . . . . . . . . . . . . . . . . . . . . . . 78Assault or battery on specified officials or employees. . . . . . . . . . . . . . . . . . . . . . . . 78Assault or battery by a person who is being detained in a prison, jail, or otherdetention facility upon visitor or other detainee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

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Assault or battery on code inspectors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80Burglary across county lines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81Reclassifications of burglary and theft during states of emergency. . . . . . . . . . . . . . . . . . . . . . 81Reclassifications of theft of emergency medical equipment. . . . . . . . . . . . . . . . . . . . . . . . . . . 82Reclassifications of theft of law enforcement equipment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82Reclassifications of sexual performance by a child; computer pornography; transmission ofpornography by electronic device; or transmission of material harmful to minors to a minorby electronic device or equipment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82Sexual offenses against students by authority figures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83Unlawful filing of false documents or records against real or personal property. . . . . . . . . . . . 84False reports to law enforcement authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88Enhancement of penalty for cruelty to animals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89Minimum mandatory sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

Capital felonies.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92Life felonies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93Prison releasee reoffender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93Dangerous sexual felony offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93Felon in possession of firearms or ammunition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94Possession or use of firearm or destructive device in commission of crime. . . . . . . . . 94Drug possession, sale, and trafficking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94Manufacture of drugs in presence of children.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114DUI manslaughter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114Fleeing or attempting to elude law enforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 114Leaving the scene of a crash. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119Assault or battery on law enforcement officers and other designated persons. . . . . . 120Murder or attempted murder of a law enforcement officer. . . . . . . . . . . . . . . . . . . . 120Aggravated assault or battery on an elderly person. . . . . . . . . . . . . . . . . . . . . . . . . 120Domestic violence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Prison releasee reoffender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121Habitual felony offender, habitual violent felony offender, three–time violent felonyoffender, and violent career criminal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

“Probation and community control” versus “sentence”. . . . . . . . . . . . . . . . . . . . . . . 131Determination hearing and presentence investigation. . . . . . . . . . . . . . . . . . . . . . . . 131Required notice of intent to seek enhanced penalties. . . . . . . . . . . . . . . . . . . . . . . . 132Fact of prior conviction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134Proof of prison release date for enhancement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136Habitual felony offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140Habitual violent felony offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145Three-time violent felony offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147Violent career criminal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148Scoresheet preparation when PRR, VCC, HFO, HVFO and 3-Time VCCdesignations apply. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

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10/20/Life. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152Dangerous sexual felony offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

Direct and collateral consequences and special sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166DNA testing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168Driver license revocation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170Loss of civil liberties upon conviction of a felony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174Registration of convicted felons.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174Forfeiture.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176HIV testing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177Castration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178Sexual offender/sexual predator sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

Sexual offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180Sexual predator. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192Mandatory designation on driver’s license or identification card. . . . . . . . . . . . . . . . 203Mandatory designation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204Removal of the requirement to register as a sexual offender or sexual predator inspecial circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

Involuntary civil commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207Baker Act commitment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207Jimmy Ryce Act commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208Deportation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224Restraining orders upon conviction of stalking or cyberstalking. . . . . . . . . . . . . . . . . . . . . . 226

TABLE 1: Summary of Punishments Authorized by Section 775.084, Fla. Stat.. . . . . . . . . . . . . . . . 130TABLE 2: Minimum Mandatory Qualifying Offenses Under Section 775.087, Fla. Stat.. . . . . . . . . 155

FIGURE 1: Prison Releasee Reoffender Plea Colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227FIGURE 2: Habitual Felony Offender Plea Colloquy.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229FIGURE 3: Habitual Violent offender Plea Colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232FIGURE 4: Violent Career Criminal Plea Colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235

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Alternatives to, and mitigation of, Criminal Punishment Code sentencing generally

Although the Criminal Punishment Code is the primary sentencing scheme in operation inFlorida, it is not the only sentencing regime; other schemes offering greater leniency or harsherpunishment are available to a prosecutor or trial judge, and some are even mandated, under certaincircumstances. Some are completely different alternatives to the Criminal Punishment Code; othersprovide an elevated “floor” for imprisonment, and others provide a “ceiling” that goes beyond thestatutory maximum prison sentence that would otherwise cap the exposure of the defendant. ACriminal Punishment Code sentence may also be “mitigated” under certain circumstances. Amitigating circumstance, defined broadly as “any aspect of a defendant’s character or record and anyof the circumstances of the offense” that reasonably may serve as a basis for imposing a sentence lessthan 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 withthese various enhancements, reclassifications, alternative sentencing schemes, and mitigators whenassessing the possible sentence a defendant may be subject to upon conviction. What follows is abrief 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 prosecutionand possible felony conviction through resolution in county court. This opportunity normallypresents itself in one of two situations.

The first situation is where a defendant is charged with a misdemeanor that, due to thedefendant’s prior record, can be enhanced as a recidivist crime. The most common examples arecases where the defendant has been charged with misdemeanor DUI, driving while license suspendedor revoked, and/or battery, and those charges can be enhanced to felonies because of priorconvictions for the same crimes. Normally, these charges are first docketed in county court, wherethey remain until the prosecutor elects to file a felony information in circuit court. If the sworncomplaint charges the commission of a misdemeanor, the defendant may plead guilty to the chargeat first appearance under Fla. R. Crim. P. 3.130 and the presiding judge may thereupon enterjudgment and sentence without the necessity of any further formal charges being filed.2 An entryof judgment for the misdemeanor precludes the State from further prosecution of the charge as afelony. If the defendant does not elect to enter a plea to the misdemeanor at first appearance, he orshe may do so for as long as the charge remains a misdemeanor. This is so even where a felonyinformation has been filed in circuit court but the State does not object to the plea in county courtand the defendant does not affirmatively mislead the court. Similarly, if the misdemeanor inquestion accompanies a felony to circuit court at the outset, the defendant can, with the court’s

1See, Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978).

2Fla. R. Crim. P. 3.170(a).

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permission, enter a plea to that misdemeanor before it is felonized, and thereby preclude felonizationof that charge.3

A relatively common situation is where the defendant has been cited for driving while licensesuspended or revoked for failure to appear or failure to pay civil penalty which, because of thedefendant’s prior convictions can be enhanced to a felony. In addition to the option of pleading tothe charge while it remains a misdemeanor, as described in the preceding paragraph, the defendantcan elect pursuant to section 318.14(10)(a), before first appearance on the citation,4 to enter a pleaof nolo contendere and provide proof of compliance to the clerk of the court or an authorizedoperator of a traffic violations bureau. In such a case, the citation will be disposed of as a civilinfraction, and not as a criminal conviction, and adjudication will be withheld. A defendant may notmake this election, however, if he or she has made an election under section 318.13(10)(a) in thepreceding twelve months of the present election, and the defendant is allowed to make only threeelections 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 avoidingprosecution itself. The two main methods of accomplishing this are through non-prosecutionagreements and deferred disposition agreements with the prosecutor.

A non-prosecution agreement is a voluntary arrangement between the defendant and theprosecutor in which the prosecutor does not file criminal charges and grants amnesty to the defendantin exchange for the defendant's agreement to fulfill certain conditions. Normally, the defendant isnot required to admit guilt as part of the agreement and the agreement itself is in the form of anexchange of letters between the prosecutor and defense counsel rather than in the form of a formalwritten contract. In simplest form, such agreements involve an agreement not to prosecute anindividual in return for that individual’s agreement to testify truthfully against other individuals ororganizations.

A more complex form of the non-prosecution agreement is the settlement agreement. Asettlement agreement is a contractual resolution of interrelated civil and criminal cases under the

3See, McManama v. State, 816 So. 2d 781 (Fla. 2d DCA 2002).

4Carter v. State, 763 So. 2d 1134 (Fla. 4th DCA 1999) (affirming summary denial of defendant's claim that he was entitledto resolve his felony driving while license suspended or revoked charge administratively through section 318.14(10) becausedefendant failed to avail himself of the statute until more than three months after his appearance date).

5§ 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 defendantserving 53–month sentence for felony driving while license suspended or revoked was not advised by counsel that he could haveavoided an adjudication of guilt by taking advantage of the procedures in § 318.14(10)(a), Fla. Stat.); also, Raulerson v. State, 763So. 2d 285 (Fla. 2000); State v. Keirn, 720 So. 2d 1085 (Fla. 4th DCA 1998), decision approved, 763 So. 2d 285 (Fla. 2000).

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terms of which the criminal defendant does not have to enter a plea in the criminal case, and anycriminal charges or charges against the defendant are dismissed. Whereas the parties to a deferredprosecution agreement are the prosecutor and the defendant, parties to settlement agreements includethe opposing litigants in the interrelated civil case or cases. Settlement agreements are mostcommonly used to resolve complex financial cases such as racketeering and organized fraud, andnormally require settlement of civil claims through payment of large fines, costs, and restitution tothose individuals who are, or would be, named as victims for purposes of restitution in the relatedcriminal case. As with deferred prosecution agreements, settlement agreements may also providefor the appointment of a compliance monitor.

A deferred disposition agreement, also known as a deferred prosecution agreement, is an out-of-court agreement between the defendant and the prosecutor, after formal charges have been filed,under the terms of which prosecution will be deferred for an agreed-upon time period during whichthe defendant must meet certain criteria, and if the defendant satisfies these criteria the prosecutorwill dismiss any criminal charge or charge filed against the defendant, or commit to not filing acharge if one has not been filed. Deferred prosecution can be used with individuals andcorporations, in cases involving simple or complex crimes. The most common type of deferredprosecution is found in the pretrial diversion programs of the Department of Corrections and thevarious State Attorney offices.

Deferred prosecution agreements normally require the defendant admit guilt, waive speedytrial and, in some cases, waive attorney-client privilege and records confidentiality as to certainmatters, for the term of the agreement and make restitution to the victims of any criminal conductcontemplated within the agreement. Where the defendant is a corporation, the agreement mayinclude 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 compliancemonitor to oversee the defendant’s adherence to the agreement. Deferred prosecutions in which thecharges have been dismissed may not be scored on a defendant’s scoresheet for a subsequent offenseas prior record.

Agreements not to prosecute and deferred prosecution agreements are out-of-courtcontractual resolutions to criminal cases and are subject to interpretation and enforcement under thelaw of contracts. They are subject to recision or, where one party has wholly or substantiallycomplied with the terms, specific enforcement. The trial court also has the authority to dismiss thecriminal charges against the defendant as a remedy for the State’s refusal to comply with such anagreement.6

6State v. Simons, 22 So. 3d 734 (Fla. 1st DCA 2009) (Court can dismiss charges where State refuses to honor terms ofsettlement agreement).

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Pretrial diversion

Defendants charged with a crime may be eligible, under certain circumstances, for pretrialdiversion in lieu of prosecution pursuant to section 948.08, Fla. Stat. and other statutes, before orafter 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 agreementbetween the defendant and the State. A pretrial intervention (PTI) agreement is in the nature of acontract, similar to a plea agreement. Thus, rules of contract law apply, as they do to other types ofplea agreements.7 A party to a plea agreement may waive any right to which he or she is legallyentitled 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 contractualobligations, 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 agreementthat was bargained for and voluntarily entered into by that defendant.9 Mutual mistake of materialfact 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 fullyperformed its obligations under the agreement.11 Similarly, the foreseeable collateral consequencesof participation in a diversion program will not serve to effect a retroactive renunciation andabrogation of such an agreement.12

Pretrial diversion is not, strictly speaking, a sentencing scheme but rather a means of avoidingsentencing, and thus a criminal record, altogether. As such, it is normally the first type of resolution

7A.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 asa 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).

8State, Dept. of Health and Rehabilitative Services v. E.D.S. Federal Corp., 631 So. 2d 353 (Fla. 1st DCA 1994).

9Allen v. State, 642 So. 2d 815 (Fla. 1st DCA 1994).

10See, Handley v. State, 890 So. 2d 529 (Fla. 2d DCA 2005) (citing Fulcher v. State, 875 So. 2d 647, 650 (Fla. 3d DCA2004), case dismissed, 890 So. 2d 1114 (Fla. 2004); Travis v. State, 724 So. 2d 119, 120–21 (Fla. 1st DCA 1998)(Cope, J., speciallyconcurring)).

11See, Hinzelin v. Bailly, 155 Fla. 837, 22 So. 2d 43 (1945) (holding that where a contract for exchange of deeds was fullyperformed, it could not be rescinded based on unfulfilled promises that were collateral to the contract); see also Kent v. Water Com’rs

of Barnstable Fire Dist., 339 Mass. 160, 158 N.E.2d 140 (1959) (holding the defendant to the terms of his contract where the otherparty had fully performed its obligations under it).

12See, State v. Dempsey, 916 So. 2d 856 (Fla. 2d DCA 2005) (fact that defendant’s participation in PTI program couldprevent her from obtaining employment as teacher was not mutual mistake of material fact).

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sought by defense counsel in a criminal case where the State is going to file an Information, or hasalready done so, against a defendant who has committed a relatively minor criminal offense. Thereare two types of pretrial diversion programs available to adults who have been charged with a felonyor felonies: general pretrial diversion and drug offender pretrial diversion. Other statutory programsinclude the bad check intervention program pursuant to section 832.08 and the misdemeanor pretrialdiversion program pursuant to section 948.16.

There is presently a conflict between the Third and Fourth District Courts of Appeal as towhether a defendant is entitled to an evidentiary hearing following the State’s unilateral terminationof a PTI agreement. The Third District Court of Appeal has held that a defendant is entitled to sucha hearing, though the Third District has not stated what the burden of proof is supposed to be andnone is referenced in the statute authorizing PTI.13 The Fourth District has held that it could find nobasis in the statutory scheme authorizing PTI, to require that every time the State elects to terminatePTI 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 toexplain its decision to terminate PTI where a defendant states, under oath, that there has been noviolation of PTI terms.15

General pretrial diversion

General pretrial diversion is also known as the state attorney’s pretrial intervention (PTI)program. Any first offender, or any person previously convicted of not more than one nonviolentmisdemeanor, who is charged with any misdemeanor or felony of the third degree is eligible forrelease to the pretrial intervention program on the approval of the administrator of the program andthe consent of the victim, the state attorney, and the judge who presided at the initial appearancehearing of the offender. The defendant may not be released to the pretrial intervention programunless, after consultation with his or her attorney, he or she has voluntarily agreed to such programand has knowingly and intelligently waived his or her right to a speedy trial for the period of his orher diversion. The defendant or the defendant’s immediate family may not personally contact thevictim or the victim’s immediate family to acquire the victim’s 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

13State v. Gorayeb, 510 So. 2d 1168 (Fla. 3d DCA 1987) (reversing for hearing to determine whether defendant breached

PTI agreement).

14Batista v. State, 951 So. 2d 1008 (Fla. 4th DCA 2007).

15Batista v. State, 951 So. 2d 1008 (Fla. 4th DCA 2007).

16§ 948.08(2), Fla. Stat.

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consent of the state attorney is required.1 7 Nor may a court dismiss a charge that is not eligible fordismissal 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, assuch, the lack of a valid agreement will preclude dismissal of charges. As an example, a PTIagreement procured through misrepresentation to, or fraud upon, the state attorney is voidable by theState. 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 finaldisposition for a period of 90 days after the date the offender was released to the program, if theoffender’s participation in the program is satisfactory, and for an additional 90 days upon the requestof the program administrator and consent of the state attorney, if the offender’s participation in theprogram is satisfactory.21 The law provides that resumption of pending criminal proceedings shallbe undertaken at any time if the program administrator or state attorney finds that the offender is notfulfilling his or her obligations under this plan or if the public interest so requires. The court maynot appoint the public defender to represent an indigent offender released to the pretrial interventionprogram unless the offender’s release is revoked and the offender is subject to imprisonment ifconvicted.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 offender’s participation in theprogram has been unsatisfactory; (b) the offender is in need of further supervision; or (c) the charge

17State 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).

18State v. Green, 527 So. 2d 941 (Fla. 2d DCA 1988) (trial court exceeded its authority when it allowed defendant tocomplete PTI program after termination by state attorney and when it dismissed second-degree felony that was not part of the PTIagreement along with third-degree felony that was).

19See, Flaherty v. State, 367 So. 2d 1111 (Fla. 3d DCA 1979) (referring to the agreement as a “bargain with the State ofFlorida”).

20In one Pinellas County case, Stewart v. State, CRC99–05458CFANO–K, the defendant was charged with Resisting ArrestWith Violence and Driving Under the Influence. The state attorney agreed to pretrial intervention for the resisting charge, but notfor the DUI charge. When the PTI paperwork for the resisting charge was sent to the Department of Corrections, an official thereacting without the knowledge or authority of the state attorney added the case number for the DUI on the forms for the resistingcharge and, through a series of oversights, the DUI charge was inadvertently dismissed along with the resisting charge after thedefendant 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 dismissalorder dealing with the DUI vacated and that offense re-established on the court’s docket.

21§ 948.08(3), Fla. Stat.

22§ 948.08(4), Fla. Stat.

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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 pretrialintervention 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 felonyoffense that is not a forcible felony as defined in section 776.08. Notwithstanding any provision ofsection 948.08, a person who is charged with a nonviolent felony and is identified as having asubstance abuse problem or is charged with a felony of the second or third degree for purchase orpossession 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 notbeen 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 notpreviously been convicted of a felony is eligible for voluntary admission into a pretrial substanceabuse education and treatment intervention program, including a treatment-based drug court programestablished pursuant to section 397.334, approved by the chief judge of the circuit, for a period ofnot less than one year in duration, upon motion of either party or the court’s own motion,24 except:

1. If a defendant was previously offered admission to a pretrial substance abuse educationand treatment intervention program at any time prior to trial and the defendant rejected that offer onthe record, then the court or the state attorney may deny the defendant’s admission to such aprogram; and

2. If the state attorney believes that the facts and circumstances of the case suggest thedefendant’s involvement in the dealing and selling of controlled substances, the court must hold apreadmission hearing. If the state attorney establishes, by a preponderance of the evidence at suchhearing, that the defendant was involved in the dealing or selling of controlled substances, the courtmust deny the defendant’s admission into a pretrial intervention program.25

At the end of the pretrial intervention period, the court considers the recommendations of theadministrator as to whether or not the defendant should be continued or terminated from the programand of the state attorney as to disposition of the pending charges. The court then determines, bywritten 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.

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program.26 If the court finds that the defendant has not successfully completed the pretrialintervention program, the court may order the person to continue in education and treatment or orderthat 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 pretrialintervention program.27

Section 948.08(6) provides two alternatives when the defendant fails to successfully completethe pretrial intervention program. The court may either continue the defendant in education ortreatment or revert the case for criminal prosecution. Where the administrative order setting up theprogram mandates that the program be voluntary, the defendant may elect to leave the program andface resumed prosecution in lieu of any court-imposed sanctions for failing to complete theprogram.28

Under the statutory scheme of section 948.08, Fla. Stat., once a defendant has been admittedto pretrial intervention, the decision to resume prosecution of the charges is solely up to theprosecutor;29 additionally, decisions concerning pretrial diversion programs is purely prosecutorialand 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 explicitlyconditions eligibility on the State’s consent and provides that the State must ultimately determinewhether to dismiss the charges or continue prosecution in that the decision to place a defendant ina pretrial substance abuse education and treatment intervention program does not rest solely withthe prosecutor: If a defendant meets the statutory requirements, he or she may be admitted to theprogram 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 checkdiversion program, which is normally available to first-time bad check offenders at the misdemeanorand felony levels. The state attorney may establish such a program, either within the state attorney’soffice or through an independent contractor, for the purpose of diverting from prosecution certainpersons 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.

28Mullin v. Jenne, 890 So. 2d 543 (Fla. 4th DCA 2005).

29Fieler v. State, 386 So. 2d 1310 (Fla. 3d DCA 1980).

30State 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).

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The use of such a diversion program does not, however, affect the authority of the state attorney toprosecute any person for any such violation.32

Upon receipt of a complaint alleging any such violation, the state attorney determines if thecase is appropriate for referral to the bad check diversion program by considering: (1) the amountof the bad check; (2) the prior criminal record of the defendant; (3) whether or not there are otherbad check complaints currently pending against the defendant; and (4) the strength of the evidenceof 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 containsall 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 defendantto enter into a diversion program, the state attorney enters into a written agreement with thedefendant to divert him or her on bad check charges. The diversion agreement includes all of thefollowing conditions, which must be accepted by the defendant: (1) Attendance at a programdesigned to assist and educate persons who have violated the provisions of chapter 832; (2) Fullrestitution on the check; (3) Full payment of fees due under section 832.08(5): (4) Any individualwho does not fulfill the agreements for diversion could then be prosecuted under the appropriatesection; and (5) A knowing and intelligent waiver of the defendant’s right to a speedy trial for theperiod of his or her diversion.35

To fund the diversion program, the state attorney may collect a fee on each check that iscollected through the state attorney’s office, whether it is collected through prosecution or throughthe diversion program. However, the state attorney may not collect such a fee on any check collectedthrough a diversion program which was in existence in another office prior to October 1, 1986. Afee may be collected by an office operating such a preexisting diversion program for the purpose offunding such program. The amount of the fee for each check cannot exceed: (1) $25, if the facevalue 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.

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Misdemeanor drug pretrial diversion

Defendants charged with a misdemeanor-level drug crimes may be eligible, under certaincircumstances, 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 identifiedas having a substance abuse problem or who is charged with a misdemeanor for possession of acontrolled 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 acontrolled substance without a valid prescription under section 400.03, and who has not previouslybeen convicted of a felony, is eligible for admission into a misdemeanor pretrial substance abuseeducation and treatment intervention program approved by the chief judge of the circuit, for a periodbased on the program requirements and the treatment plan for the defendant, upon motion of eitherparty or the court’s own motion, except, if the State Attorney believes the facts and circumstancesof the case suggest the defendant is involved in dealing and selling controlled substances, the courtshall hold a preadmission hearing. If the state attorney establishes, by a preponderance of theevidence at such hearing, that the defendant was involved in dealing or selling controlled substances,the court shall deny the defendant’s admission into the pretrial intervention program.3 7 At the endof the pretrial intervention period, the court is required to consider the recommendation of thetreatment program and the recommendation of the state attorney as to disposition of the pendingcharges. The court is further required to determine, by written finding, whether the defendantsuccessfully completed the pretrial intervention program. If the court finds that the defendant hasnot successfully completed the pretrial intervention program, the court may order the person tocontinue 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 successfullycompleted the pretrial intervention program.39

Post-adjudicatory drug treatment

Under certain circumstances and subject to available funding, the sentencing court has theauthority to divert a defendant into a supervisory sentence in lieu of a presumptive sentence ofimprisonment under the Criminal Punishment Code in order to mandate drug treatment for thatdefendant. There are four avenues by which the court may order a probationer to complete a drugtreatment 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.

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(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 besentenced to a state facility by sentencing the defendant to a nonstate prison sanction as provided insubsection 921.00241(2).4 0 A defendant may be sentenced to a nonstate prison sanction if theoffender meets all of the following criteria: (a) the defendant’s primary offense is a felony of thethird degree;41 (b) the defendant’s total sentence points score, as provided in section 921.0024, is notmore than 48 points, or the defendant’s total sentence points score is 54 points and six of thosepoints are for a violation of probation, community control, or other community supervision, and donot involve a new violation of law;42 (c) the defendant has not been convicted or previouslyconvicted of a forcible felony as defined in section 776.08, but excluding any third-degree felonyviolation under chapter 810;43 and (d) the defendant’s primary offense does not require a minimummandatory sentence.44

If the court elects to impose a sentence as provided in section 921.00241, the court mustsentence the offender to a term of probation, community control, or community supervision withmandatory participation in a prison diversion program of the Department of Corrections if suchprogram is funded and exists in the judicial circuit in which the defendant is sentenced. The prisondiversion program must be designed to meet the unique needs of each judicial circuit and of theoffender population of that circuit. The program may require residential, nonresidential, or dayreporting requirements, substance abuse treatment, employment, restitution, academic or vocationalopportunities, or community service work.45

The court that sentences a defendant to a nonstate prison sanction pursuant to subsection921.00241(2) must make written findings that the defendant meets the criteria in subsection921.00241(1) and the sentencing order must indicate that the defendant was sentenced to the prisondiversion 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.

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all or a portion of the costs related to the prison diversion program if the court determines that thedefendant has the ability to pay.46

The wording of section 921.00241(1)(b) has been a source of confusion for some prosecutorsand judges, as regards whether the last words in that subsection, “and do not involve a new violationof law,” apply to the entire subsection—thereby limiting application of the law to violations ofsupervision and precluding prison diversion from all cases involving a new law violation—orwhether 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 andsix of those points are for a violation of probation, community control, or other communitysupervision. In response to such confusion, it should be pointed out that the Florida Legislatureplaced 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, Lawsof Florida, describe eligibility for the prison diversion program as requiring either a total sentencepoints score of 48 points or a total sentence points score of 54 points of which six are for a violationof supervision that does not involve a new law violation.47 The statute is thus of general applicationin sentencing cases and is not limited to violations of probation that do not involve new lawviolations.

While a section 921.00241 sentence is not classified as a downward departure, the net effectis the same.

Drug offender probation

“Drug offender probation,” is a form of intensive supervision which emphasizes treatmentof drug offenders in accordance with individualized treatment plans administered by officers withrestricted caseloads.48 It is for chronic substance abusers who commit non-violent drug crimes andis an alternative sentencing scheme independent of the Criminal Punishment Code4 9 and is generallythe sentencing scheme of choice for defense counsel seeking to avoid prison for clients withsignificant drug problems.

46§ 921.00241(3), Fla. Stat.

47See, PCS/SB 1722 Florida Senate Criminal and Civil Justice Appropriations Committee Bill Analysis and Fiscal ImpactStatement, March 27, 2009; PCS/SB 1722 Florida Senate Criminal and Civil Justice Appropriations Committee Bill Analysis and

Fiscal Impact Statement, April 1, 2009; PCS/SB 1722 Florida Senate Policy and Steering Committee on Ways and Means BillAnalysis and Fiscal Impact Statement, April 6, 2009.

48§ 948.001(6), Fla. Stat.

49See, Jones v. State, 813 So. 2d 22 (Fla. 2002).

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The initial qualifications for drug offender probation are that it appears to the court upon ahearing that the defendant is a chronic substance abuser whose criminal conduct is a violation ofsection 893.13(2)(a) or (6)(a), or other nonviolent felony if such nonviolent felony is committed onor after July 1, 2009, and notwithstanding section 921.0024 the defendant's Criminal PunishmentCode scoresheet total sentence points are 60 points or fewer, the court may either adjudge thedefendant guilty or stay and withhold the adjudication of guilt. In either case, the court may also stayand withhold the imposition of sentence and place the defendant on drug offender probation or intoa postadjudicatory treatment-based drug court program if the defendant otherwise qualifies. As usedin section 948.20, the term “nonviolent felony” means a third-degree felony violation under chapter810 or any other felony offense that is not a forcible felony as defined in section 776.08.50 Drugoffender probation emphasizes a combination of treatment and intensive community supervision andwhich 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 bythe court. Drug offender probation status includes surveillance and random drug testing, and mayinclude those measures normally associated with community control, except that specific treatmentconditions 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 insection 948.06.52

Note that section 893.13 does not prohibit a court from considering an alternative sentenceunder section 948.20 if the defendant has been convicted of a non-drug felony, nor does any otherstatute 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 drugcourt program if the defendant’s Criminal Punishment Code scoresheet total sentence points undersection 921.0024 are 60 points or fewer, the offense is a nonviolent felony, the defendant isamenable to substance abuse treatment, and the defendant otherwise qualifies under section397.334(3). The satisfactory completion of the program must be a condition of the defendant’sprobation or community control. As used in section 948.01(6), the term “nonviolent felony” meansa 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.

53Nelson v. State, 16 So. 3d 286 (Fla. 4th DCA 2009).

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felony as defined in section 776.08.54 The defendant must be fully advised of the purpose of theprogram and the defendant must agree to enter the program. The original sentencing court mustrelinquish jurisdiction of the defendant’s case to the postadjudicatory drug court program until thedefendant is no longer active in the program, the case is returned to the sentencing court due to thedefendant’s termination from the program for failure to comply with the terms thereof, or thedefendant’s sentence is completed.55

Sentencing back as a juvenile

In some situations, defendants who committed crimes as juveniles (i.e., while under the ageof 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, asan alternative to adult dispositions, be committed to the Department of Juvenile Justice (DJJ) fortreatment in an appropriate program for children outside the adult correctional system or be placedon juvenile probation. If the child is found to have committed the offense punishable by death orlife imprisonment, the law provides that the child shall be sentenced as an adult. If the child is notfound to have committed the indictable offense but is found to have committed a lesser includedoffense or any other offense for which he or she was indicted as a part of the criminal episode, thecourt 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 forcriminal prosecution pursuant to information or waiver of juvenile court jurisdiction is found to havecommitted a violation of state law or a lesser included offense for which he or she was charged asa part of the criminal episode.

Notwithstanding any other provision to the contrary, if the state attorney is required to filea motion to transfer and certify the juvenile for prosecution as an adult pursuant to section985.556(3) and that motion is granted, or if the state attorney is required to file an informationpursuant 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.

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imposing adult sanctions is presumed appropriate, and the court is not required to set forth specificfindings or enumerate the criteria in this subsection as any basis for its decision to impose adultsanctions.

For juveniles transferred to adult court but who do not qualify for such transfer pursuant tosection 985.556(3) or section 985.557(2)(a) or (b), the court may impose juvenile sanctions. Ifjuvenile 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 thecivil disabilities ordinarily resulting from a conviction. The court has to impose either an adultsanction or a juvenile sanction and may not sentence the child to a combination of adult and juvenilepunishments. An adult sanction or a juvenile sanction may include enforcement of an order ofrestitution or probation previously ordered in any juvenile proceeding. However, if the courtimposes a juvenile sanction and DJJ determines that the sanction is unsuitable for the child, DJJ isrequired to return custody of the child to the sentencing court for further proceedings, including theimposition 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 indeterminateperiod 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 anindeterminate 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 toimpose youthful offender or adult sanctions.

Sentencing back to juvenile court is not, however, a guarantee that the juvenile will remainunder the juvenile court’s jurisdiction. If a child proves not to be suitable to a commitment program,in a juvenile probation program, or treatment program, DJJ has to provide the sentencing court witha written report outlining the basis for its objections to the juvenile sanction and shall simultaneouslyprovide a copy of the report to the state attorney and the defense counsel. DJJ is required to schedulea hearing within 30 days. Upon hearing, the court may revoke the previous adjudication, impose anadjudication of guilt, and impose any sentence which it may lawfully impose, giving credit for alltime spent by the child in DJJ. The court may also classify the child as a youthful offender pursuantto section 958.04, if appropriate. A child may be found not suitable to a juvenile commitmentprogram, community control program, or treatment program if the child commits a new violationof law while under juvenile sanctions, if the child commits any other violation of the conditions ofjuvenile sanctions, or if the child’s actions are otherwise determined by the court to demonstrate afailure of juvenile sanctions. This means that, even where a juvenile defendant has been sentencedback for juvenile sanctions, violations of those sanctions can result in the return of the juvenile to

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adult court for the imposition of any sentence that could be imposed on an adult in the samecircumstances.

Downward departure from the presumptive minimum calculated sentence

At a minimum, the trial court must impose the lowest permissible sentence calculatedaccording to the applicable guidelines or the Criminal Punishment Code unless the court finds thatthe evidence supports a valid reason for a downward departure.56 Any downward departure from thelowest permissible sentence, as calculated according to the total sentence points under section921.0024, Fla. Stat., is prohibited unless there are circumstances or factors that reasonably justifythe downward departure.57 Judicial leniency, in terms of reliance on mitigating factors to reduce aCriminal Punishment Code or guidelines sentence, only functions within prescribed parameters ofthe sentencing laws and the rules adopted to implement them. These laws and rules clearly providethat downward departure is prohibited unless there are circumstances or factors that reasonablyjustify the downward departure.58 The plenary power of the legislature to prescribe punishment forcriminal offenses cannot be abrogated by the courts in the guise of fashioning an equitable sentenceoutside the statutory provisions.5 9 In any event, sentencing alternatives should not be used to thwartthe guidelines or Criminal Punishment Code.60

Nonetheless, one of the most practiced ways to mitigate a defendant’s sentence, where noother alternatives are available, is through a downward departure from the Criminal PunishmentCode sentencing “floor.” It is, in fact the practice of some defense counsel to seek a “departurehearing” before a defendant enters a plea to test the court for leniency, although some courts will notentertain such a hearing until the defendant has pled.

Pre-plea “departure hearings” comprise an unauthorized blending of plea discussion andagreement with the conduct of a sentencing hearing, and the creation of a legal fiction that an offenseis not “before the court for sentencing,” so as to evade the requirements of the Florida Rules ofCriminal Procedure and statutory law. Such hearings are a means for the defendant to get acommitment from the presiding judge as to whether and how much of a downward departure

56See, e.g., § 921.002(1)(f) and (3), Fla. Stat.; State v. Henderson, 766 So. 2d 389 (Fla. 2d DCA 2000).

57Fla. R. Crim. P. 3.704(d)(27).

58State 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, 120–21 (Fla. 1st DCA 1998)(record did not support downward departure based on findingthat offense was isolated incident and committed in unsophisticated manner given fact that defendant was 39–year-old police sex

crimes investigator at time he entered into ongoing sexual relationship with 14–year-old girl.).

59McKendry v. State, 641 So. 2d 45 (Fla. 1994); State v. Coban, 520 So. 2d 40 (Fla. 1988) (error for trial judge to waive25–year minimum mandatory sentence for first-degree murder).

60See, Disbrow v. State, 642 So. 2d 740 (Fla. 1994).

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sentence he or she will impose if and when the defendant decides to plea without making anycommitment in return. Typically, these hearings are used by the defendant to put on evidence inmitigation without the defendant accepting any responsibility for having committed any wrongfulact, which is a contradiction the Rules of Criminal Procedure are designed to prevent. Thistechnique also places a legally unrecognizable burden on the prosecutor and any victim or victimsinvolved to overcome such mitigation and persuade the judge not to depart downward in the eventthat the defendant does decide to enter a plea. Under the former guidelines, where upward departurewas a possibility, the prosecutor would often try to blunt the defense request for downward departureby 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 trialprocess by substituting the defendant’s case for leniency for the prosecutor’s presentation of allrelevant evidence of guilt before a jury in a trial. Such a procedure is also contrary to principles ofjudicial economy and entails the potential for otherwise unnecessary and avoidable recusalconsequences.

The jurisdiction of circuit courts is defined by section 26.012, Fla. Stat.; that of the countycourts 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 predicatedupon a finding of guilt after plea or jury verdict. While the trial court may participate in pleadiscussions upon request of a party and once involved, the court may actively discuss potentialsentences and comment on proposed plea agreements, so long as the court acts to minimize thepotential 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 orthe defense to request, or the presiding judge to issue, non-binding advisory opinions as are soughtin such pre-plea departure sentencing hearings. A trial judge does not, therefore, have discretion toconduct 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-imposednon-guidelines or non-Criminal Punishment Code minimum mandatory sentencing is prohibited.62 A judge’s decision not to depart is non-reviewable, as the statutory scheme of the CriminalPunishment Code does not give an appellate court the authority to review a trial court’s discretionarydecision to deny a request for a downward departure.63

61Wilson v. State, 845 So. 2d 142 (Fla. 2003).

62See, 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).

63Stancliff v. State, 996 So. 2d 259 (Fla. 1st DCA 2008).

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Burden, level and sufficiency of proof in departure sentencing

The defendant has the burden of proving the basis for a departure sentence by apreponderance of the evidence, and the evidence must be competent and substantial.64 Apreponderance of the evidence is evidence which as a whole shows that the fact sought to be provedis more probable than not.65 Substantial evidence is evidence which a reasoning mind would acceptas sufficient to support a particular conclusion.66

Section 921.002(1)(f), Fla. Stat., provides that “The level of proof necessary to establish factsthat 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 thedeparture sentence, the statutory standard is not met.67

Defense counsel’s unsworn statements of fact cannot serve as evidence to substantiate adownward departure sentence; if an attorney wishes to establish a fact, he or she must provide sworntestimony through competent witnesses other than himself or herself or a stipulation to which his orher 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 defensecounsel.69

64See, State v. Bell, 854 So. 2d 686 (Fla. 5th DCA 2003); State v. Silver, 723 So. 2d 381 (Fla. 4th DCA 1998). Note thatother states have a more stringent standard for departures. In Michigan, for example, a court may depart from the appropriate sentencerange established under that state’s guidelines if the court has a substantial and compelling reason for that departure and states onthe record the reasons for the departure. M.C.L. 769.34(3). A “substantial and compelling reason” has been interpreted by that state'ssupreme court to mean an “objective and verifiable reason that keenly or irresistibly grabs our attention; is of considerable worth indeciding the length of a sentence; and exists only in exceptional cases.” People v. Babcock, 469 Mich. 247, 666 N.W.2d 231, 258(2003).

65State v. Edwards, 536 So. 2d 288, 292 n.3 (Fla. 1st DCA 1988).

66State v. Morales, 460 So. 2d 410 (Fla. 2d DCA 1984).

67See, State v. Scott, 879 So. 2d 99 (Fla. 2d DCA 2004) (where no evidence is presented to support downward departurebased on restitution need on a worthless check case, the departure is reversed); State v. Amodeo, 750 So. 2d 664, 666 (Fla. 5th DCA1999) (holding that record “utterly failed to support the reasons given for the departure sentence” where “no testimony was givenunder oath by anyone”); State v. Bleckinger, 746 So. 2d 553, 556 (Fla. 5th DCA 1999) (holding that since no evidence was adducedat the sentencing hearing the court could not find that cooperation by the defendant warranted a downward departure); see also, Statev. 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).

68State v. Champion, 898 So. 2d 1111 (Fla. 2d DCA 2005) (unsworn statements of counsel cannot support a downwarddeparture sentence); State v. Bleckinger, 746 So. 2d 553, 555–56 (Fla. 5th DCA 1999) (same).

69State v. Arvinger, 751 So. 2d 74 (Fla. 5th DCA 1999); State v. Silver, 723 So. 2d 381 (Fla. 4th DCA 1998).

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Defense obligations in departure sentencing

First and foremost, a defense attorney has an obligation to investigate and present availablemitigating evidence at sentencing.70 Where the defendant who has previously elected to participatein reciprocal discovery is seeking a departure, Rule 3.220(d)(1)(A) applies and obligates thedefendant to provide the State on a timely basis with: (1) a written list of the names and addressesof all persons whom the defendant expects to call at any hearing on said motion for departuresentencing; (2) the statement of any witness whose name is furnished in compliance with thediscovery rule, other than the defendant; (3) reports or statements of experts made in connection withor relevant to departure sentencing in the case for which departure is sought, including results ofphysical or mental examinations and of scientific tests, experiments, or comparisons which thedefendant intends to use at the departure hearing; and (4) any tangible objects that the defendantintends to use in at the departure hearing.71 Consistent with the notion that a dispositive orderentered without affording the State proper notice and opportunity to be heard, a necessary corollaryto the discovery rule is that the defendant provide the State with some statement as to the particularground or grounds of the departure sentence sought by the defendant, in that the contents of a motionmust 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 attemptto obtain mental condition evidence going to a sentencing mitigator, the provisions of Florida Ruleof Criminal Procedure 3.216(f) apply, even though the appointment and evaluation are obtained post-plea or post-sentencing. Pursuant to Rule 3.216(f), if the notice to rely on any mental health defenseother than insanity indicates the defendant will rely on the testimony of an expert who has examinedthe defendant, the court must, upon motion of the state, order the defendant be examined by onequalified expert for the state as to the mental health defense raised by the defendant. Upon ashowing of good cause, the court may order additional examinations upon motion by the state or thedefendant. Attorneys for the state and defendant may be present at the examination. When thedefendant relies on the testimony of an expert who has not examined the defendant, the state is notbe entitled to a compulsory examination of the defendant.73 Thus, if the defendant intends to useexpert testimony to obtain a sentence less than the Criminal Punishment Code minimum presumptive

70See, e.g., Rose v. State, 675 So. 2d 567 (Fla. 1996) (an attorney has a duty to conduct a reasonable investigation forpossible mitigating evidence).

71See, State v. Clark, 644 So. 2d 556 (Fla. 2d DCA 1994) (defendant’s discovery obligations under Rule 3.220 apply to

sentencing).

72See, Metropolitan Dade County v. Curry, 632 So. 2d 667 (Fla. 3d DCA 1994) (an order ent ered without notice oropportunity to be heard is a void order and may be attacked at any time).

73Fla. R. Crim. P. 3.216(f).

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sentence, the defendant must give notice to the State and allow an opportunity for the State to deposethe expert and obtain rebuttal evidence.74

When the defendant lists as a potential witness a person with whom the defendant has aprivileged relationship (e.g., the defendant’s spouse, psychologist, physician, priest or spouse) or arelationship which is otherwise encompassed within the defendant’s attorney-client relationship, theState cannot ordinarily take pre-hearing discovery of that witness as to privileged matters absent awaiver of privilege. The mere relevance of the information is not sufficient grounds for the Stateto be allowed to override the privilege involved.75 Simply listing a witness or providing the Statewith a written report prepared by the witness is also not sufficient to waive the privilege, althoughthe privilege is waived at the point where the defendant actually calls the witness to the stand totestify.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, thedefendant loses his or her right to insist, in pretrial discovery proceedings, that the matter isprivileged.7 7 This is known as the “sword and shield” doctrine and means that, where the defendantso uses the shield of privilege as a sword to thwart the State’s right to discovery, the State may filean appropriate motion to exclude the testimony of such witnesses at any sentencing hearing on thebasis 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 copyof any written motion which may not be heard ex parte and a copy of the notice of the hearingthereof, shall be served on the adverse party a reasonable time before the time specified for thehearing. Reasonable notice is such notice or information of a fact as may fairly and properly beexpected or required in the particular circumstances.79 While there are no hard and fast rules abouthow many days constitute a “reasonable time,” the party served with notice must have actual noticeand time to analyze the arguments of the movant, prepare counterargument, and assemble necessarywitnesses and evidence. Lack of reasonable notice is a denial of due process.80

74State v. Massingill, 77 So. 3d 677 (Fla. 3d DCA 2011).

75See, Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So. 2d 1021 (Fla. 4th DCA 1998).

76See, Sagar v. State, 727 So. 2d 1118 (Fla. 5th DCA 1999); Ursry v. State, 428 So. 2d 713 (Fla. 4th DCA 1983).

77See, Savino v. Luciano, 92 So. 2d 817 (Fla. 1957).

78See, Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981).

79Sterling Mfg. Co. v. Hough, 49 Neb. 618, 68 N.W. 1019 (1896); Mallory v. Leiby, 1 Kan. 97, 1862 WL 403 (1862) at102.

80See, Harreld v. Harreld, 682 So. 2d 635 (Fla. 2d DCA 1996) (two working days’ notice of contested final hearing indissolution action is not notice “reasonable time” before the hearing where husband resides outside the state and is not representedby counsel); Russ v. State, 622 So. 2d 501 (Fla. 5th DCA 1993) (scheduling of contempt hearing less than two days after service oforder to show cause violated criminal procedural rule requiring that “reasonable time” be allowed for preparation of defense); see,

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The motion also has to be legally sufficient. Fla. R. Crim. P. 3.190(h)(3) states that, “Beforehearing evidence, the court shall determine if the motion is legally sufficient. If it is not, the motionshall be denied.”

Procedures to be followed by the judge in departure sentencing

A trial court’s decision whether to depart from the guidelines, or below the CriminalPunishment Code sentencing minimum, is a two-part process. First, it must determine whether avalid legal ground and factual support for that ground exist. Legal grounds are set forth in case lawand statute, and facts supporting the ground must be proven at trial (or at a sentencing hearing basedon a change of plea) by a preponderance of the evidence.81 If a sentencing judge imposes a sentencethat is below the lowest permissible sentence under the Criminal Punishment Code, it is a departuresentence and must be accompanied by a written statement by the sentencing court delineating thereasons for the departure, filed within seven days of the date of sentencing. A written transcriptionof orally stated reasons for departure articulated at the time sentence was imposed is sufficient if itis filed by the court within seven days after the date of sentencing.82 The sentencing judge may alsolist the written reasons for departure in the space provided on the Criminal Punishment Codescoresheet.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 reasonor reasons for departure at the time of sentencing but inadvertently fails to enter contemporaneouswritten reasons.85 A trial court is, however, without jurisdiction to file written reasons for departureonce a notice of appeal has been filed from a properly rendered judgment.86

The trial court’s decision regarding the first step will be affirmed on appeal if the reasongiven by the trial judge is valid and supported by competent, substantial evidence.87 If the trial courtfinds that the initial requirements for a downward departure are satisfied, the second step requiresthe 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 day’s notice for a non-emergency dispositive motion wasunreasonably short); Montgomery v. Cribb, 484 So. 2d 73 (Fla. 2d DCA 1986) (two days notice for a hearing on a motion to strikea claim against an estate based upon a summary judgment was inadequate).

81See, Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999).

82See, Pierre v. State, 971 So. 2d 825 (Fla. 3d DCA 2007).

83Fla. R. Crim. P. 3.704(d)(27)(a).

84See, Fla. R. Crim. P. 3.702(d)(18)(A) and 3.703(d)(30)(A).

85Pease v. State, 712 So. 2d 374 (Fla. 1997); Gibson v. State, 661 So. 2d 288 (Fla. 1995).

86Domberg v. State, 661 So. 2d 285 (Fla. 1995).

87Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999); see also, State v. Clay, 780 So. 2d 269, 270 (Fla. 5th DCA 2001).

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defendant in the pending case. When a trial court determines whether it should depart downwardfrom the presumptive minimum sentence prescribed by the Criminal Punishment Code, it mustweigh the totality of factors, including aggravating factors.88 With respect to the second step, thetrial court is afforded considerable discretion in making its decision and will be reversed only if theappellate court finds the trial court abused its discretion.89

The trial court applies the incorrect standard in determining whether to exercise its discretionwhen, for example, it applies arbitrary policies of “rounding up” sentences,9 0 refusing to consideryouthful offender sentencing,91 refusing to consider downward departures in child pornographycases,92 and refusing to consider a downward departure sentence once any defendant elects toexercise 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 applicableguidelines or Criminal Punishment Code.94 The Florida Supreme Court promulgated this rule outof concern that sentencing judges on remand would search for reasons to justify a departure sentencewhen the judge’s initial reasons for departure had been reversed by an appellate court.95 This ruledoes 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 imposea 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 section921.0026, Fla. Stat., which applies to any felony offense, except any capital felony, and are asfollows:

88See, Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999).

89Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999).

90Cromartie v. State, 70 So. 3d 559, 563 (Fla. 2011).

91Pressley v. State, 73 So. 3d 834, 836 (Fla. 1st DCA 2011).

92Goldstein v. State, 154 So. 3d 469 (Fla. 2d DCA 2015); Barnhill v. State, 140 So. 3d 1055 (Fla. 2d DCA 2014).

93Little v. State, 152 So. 3d 770 (Fla. 5th DCA 2014).

94Pope v. State, 561 So. 2d 554 (Fla. 1990).

95See, Troutman v. State, 630 So. 2d 528 n.6 (Fla. 1993).

96See, Baker v. State, 852 So. 2d 441 (Fla. 5th DCA 2003).

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The departure results from a legitimate, uncoerced plea bargain97

A “plea bargain” for purposes of a departure sentence contemplates an agreement betweenthe State and the defendant which is approved by the court, and not between the court and thedefendant. When a plea agreement is between a defendant and the court without the State’sagreement, it is impermissible to then allow the court to use this statutory reason to justify adeparture sentence.98 In Florida, entry of an open plea is not a valid reason for a departure sentencewhere 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 withthe defendant as to the length of sentence, the extent of the departure is within the sound discretionof the trial judge.100 The trial court does not have to follow through with the prosecutor’srecommendation as to the magnitude of the departure and may impose a more lenient sentence thanrecommended by the prosecutor.101 Once the decision as to the minimum sentence has been removedfrom the prosecutor’s sphere, continued control over the sentence would violate the Floridaconstitution’s separation of powers. An example of the application of this rule is where theprosecutor files a motion pursuant to section 893.135(4), Fla. Stat., to reduce or suspend the sentenceof a person convicted under that section and who provides substantial assistance in the identification,arrest, or conviction of any of that person’s accomplices, accessories, coconspirators, or principalsor of any other person engaged in trafficking in controlled substances: Once a motion for reductionof the minimum mandatory sentence has been filed under that section, the sentence is in the trialcourt’s discretion.10 2 Where there is an agreement between the State and the defendant for a specificdeparture sentence, however, the sentencing court cannot impose a different departure sentence. Adiversion from the agreement is not the result of a legitimate plea bargain and so cannot be supported

97§ 921.0026(2)(a), Fla. Stat.

98See, 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 Statev. Laperreri, 710 So. 2d 119 (Fla. 2d DCA 1998) (“Because the State did not join in the plea agreement, there is no possibility thatthe sentence is a valid downward departure based on uncoerced plea agreement.”); State v. Kennedy, 698 So. 2d 349 (Fla. 4th DCA1997); 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, 120–21 (Fla. 1st DCA 1998); State v. McCarthy, 502 So. 2d 955 (Fla. 2d DCA 1987).

99State v. Brannum, 876 So. 2d 724 (Fla. 5th DCA 2004).

100State v. Aguilar, 775 So. 2d 994 (Fla. 3d DCA 2000) (where the State and the defendant agree that a departure from thesentencing 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).

101State v. Cure, 760 So. 2d 243 (Fla. 3d DCA 2000); State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985).

102Cherry v. State, 439 So. 2d 998 (Fla. 4th DCA 1983) (where State Attorney agrees to less than the minimum mandatorysentence under section 893.135, the sentence is in trial court’s discretion).

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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 validdownward departure reason under section 921.0026(2)(a), Fla. Stat.104 Similarly, where an offer ofa downward departure from the State has been unequivocally revoked prior to acceptance, the courtcannot 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 sentencingon the charges filed by the State within certain limits for purposes other than departure under section921.0026(2)(a), Fla. Stat.106 A plea agreement cannot, however, frustrate sentencing consistent withthe Criminal Punishment Code or applicable guidelines, as a defendant cannot by agreement conferon the court the authority to impose an illegal sentence. If a departure is not supported by clear andconvincing 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 thebenefit of it, and then ask the trial court, or the appellate court, to set aside the sentence and granthim or her a better deal than the one agreed to by the State on the basis that the court should not havedeparted; in challenging his or her conviction under such circumstances, the defendant is not entitledto 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 minorparticipant in the criminal conduct109

The court may consider the defendant’s alleged personality trait of being more a followerthan a leader, but this basis of departure is not available if the defendant was the principal perpetratorin the underlying crime.110

103State v. Hale, 682 So. 2d 613 (Fla. 2d DCA 1996).

104See, Dozier v. State, 881 So. 2d 662 (Fla. 3d DCA 2004) (Cope, J., concurring).

105State v. Berry, 976 So. 2d 645 (Fla. 3d DCA 2008); State v. Watson, 971 So. 2d 946 (Fla. 3d DCA 2007).

106See, State v. Warner, 762 So. 2d 507 (Fla. 2000).

107State 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).

108Scott v. State, 465 So. 2d 1359 (Fla. 5th DCA 1985).

109§ 921.0026(2)(b), Fla. Stat.

110See, 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 allowhim to stay out of prison.”); State v. Silver, 723 So. 2d 381 (Fla. 4th DCA 1998) (defendant who was a “closer” in a telemarketingscheme with “significant” involvement in the scheme, was not minor participant); State v. Licea, 707 So. 2d 1155 (Fla. 2d DCA1998).

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The capacity of the defendant to appreciate the criminal nature of the conductor to conform that conduct to the requirements of law was substantiallyimpaired111

Emotional immaturity coupled with chronological young age is a sufficient basis to allow asentencing judge to depart downwards.112 A substantial impairment of a defendant’s capacity toappreciate the criminal nature of his or her conduct or to conform that conduct to the requirementsof law, although not reaching the level of insanity, can be a sufficient enough mitigator to supporta downward departure.113 Historically, impairment due to addiction to drugs could not be used tosupport 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 isunrelated to substance abuse or addiction or for a physical disability, and thedefendant 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) theneed for specialized treatment, and (3) that the defendant is amenable to treatment.116 The defendantis not required to prove that the mental disorder or physical disability requires treatment that is notavailable in the Department of Corrections.117

A finding that a defendant is “amenable” to treatment means there is a reasonable probabilityhe or she will successfully overcome the mental disorder or physical disability through a treatmentprogram, and this finding must be supported by some competent substantial evidence. Minimally,

111§ 921.0026(2)(c), Fla. Stat.

112See, State v. Gilson, 800 So. 2d 727 (Fla. 5th DCA 2001).

113State v. Chapman, 805 So. 2d 906 (Fla. 2d DCA 2001) (court may not base a downward departure based upon thedefendant’s intoxication at the time of the offense by finding he lacked the capacity to appreciate the criminal nature of the offenseand 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. O’Dorle, 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.

117State v. Chubbuck, 2014 WL 2765926 (Fla. 2014).

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this requires proof of a reasonable possibility that the treatment will be successful.118 Somethingmore than a defendant’s perfunctory statement that he or she is a fit subject to rehabilitation isneeded.119 Dependency treatment as a mitigating factor is not a “get out of jail free” card to be usedby a judge to entice a plea: There must be convincing evidence that the defendant’s future conductwill change because of treatment for defendant’s addiction.120 For example, the sua spontedetermination of the trial court at an arraignment hearing that the defendant had an angermanagement problem, absent any evidence or testimony to support that contention, cannot be thebasis of a downward departure.121

The need for payment of restitution to the victim outweighs the need for aprison sentence122

In weighing the need for restitution versus the need for imprisonment, a court must take intoconsideration all of the relevant factors, including the victim’s need for restitution and thedefendant’s ability to pay. Evidence in support of restitution includes findings such as the nature ofthe victim’s loss, the effectiveness of restitution, and the consequences of imprisonment.123 Theamount of restitution due must be substantial and not be minor.124 The victim must have a “pressingneed” to recover the restitution amount specified.125 Ordinarily, the defendant’s ability to payrestitution 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 toreimburse the victim for his or her loss, it necessarily presupposes that restitution can be paid, andthere must be competent substantial evidence of the defendant’s ability to pay, if this reason for

118State v. Cummings, 748 So. 2d 388, 113 A.L.R.5th 761 (Fla. 5th DCA 2000); State v. Parker, 733 So. 2d 1074 (Fla. 5thDCA 1999); see also, State v. Hillhouse, 708 So. 2d 326 (Fla. 2d DCA 1998).

119State v. Bostick, 715 So. 2d 298 (Fla. 4th DCA 1998); State v. Gordon, 645 So. 2d 140, 142 (Fla. 3d DCA 1994) (adefendant’s word alone is insufficient to establish that he or she is a suitable candidate for drug rehabilitation).

120State v. Clark, 724 So. 2d 653 (Fla. 5th DCA 1999).

121State 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 [thissection]”); see also, State v. Coleman, 780 So. 2d 1004 (Fla. 4th DCA 2001) (departure for treatment of pedophilia upheld); Statev. 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).

123State v. Petringelo, 762 So. 2d 965 (Fla. 2d DCA 2000).

124State v. O’Dorle, 738 So. 2d 987 (Fla. 2d DCA 1999) (restitution amount of $112.62 will not support downwarddeparture sentencing).

125See, State v. Adkison, 56 So. 3d 880 (Fla. 1st DCA 2011).

126§ 775.089(6)(b), Fla. Stat.

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departure is not to be defeated.127 There must also be competent, substantial evidence showing thatthe victim’s need for restitution outweighs the need for a prison sentence.128 The test is the victim’sneed, not the victim’s desire or preference.129 The trial court needs non-hearsay evidence of theextent of loss suffered by the victim.130 In the absence of testimony or a showing of the need forrestitution by the victims or evidence that the defendant would be able to provide restitution if spareda longer sentence, a downward departure based on the need for restitution is improper.131 Simplypleading guilty to the crimes committed, thereby saving the State the cost of prosecution will notsupport a downward departure sentence on this basis because there is a distinction betweenrestitution and the taxation of the costs of investigation and prosecution.132 Restitution can be madea condition of post-incarceration probation, however.

The victim was an initiator, willing participant, aggressor, or provoker of theincident133

The term “incident,” for purposes of this statutory mitigator, means the circumstancesimmediately surrounding the offense with which the defendant has been convicted, and not the moreremote circumstances out of which the offense arose.134 In determining whether this mitigatorapplies in sex crimes when the victim is a minor, the trial court must consider the victim’s age andmaturity and the totality of the circumstances of the relationship between the defendant and thevictim: the younger and less mature the victim, the less likelihood of a finding that even willing

127State v. Baker, 713 So. 2d 1027 (Fla. 2d DCA 1998), opinion quashed, 733 So. 2d 992 (Fla. 1999).

128State v. Kasten, 775 So. 2d 992 (Fla. 3d DCA 2000) (downward departure on ground that defendant could pay for therapyfor child victim of sexual offenses if he were not incarcerated reversed because there was no record testimony as to cost of futurecounseling, 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).

129Demoss v. State, 843 So. 2d 309 (Fla. 1st DCA 2003); Banks v. State, 732 So. 2d 1065 (Fla. 1999) (victim’s wishes notdispositive, for it is the judge, not the victim, who must weigh society’s competing needs); see also, State v. Quintanal, 791 So. 2d23 (Fla. 3d DCA 2001) (reversing downward departure sentence where victims lost approximately $200,000 and preferred restitutionover incarceration, but no evidence was presented as to victims’ need for restitution).

130State v. Schillaci, 767 So. 2d 598 (Fla. 4th DCA 2000) (downward departure improper where there was no evidence thatthe victims had any particular need or desire for restitution nor any evidence regarding the amount of restitution).

131State v. Amodeo, 750 So. 2d 664 (Fla. 5th DCA 1999).

132State 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, 120–21 (Fla. 1st DCA 1998).

133§ 921.0026(2)(f), Fla. Stat.

134See, State v. Morales, 718 So. 2d 272 (Fla. 5th DCA 1998).

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participation is sufficient for mitigating a defendant’s sentence on the basis of consent.135 The statutedoes not exempt children, and so a court may consider a downward departure sentence on this basisin sex cases where the child victim could not legally consent to the sexual activity if factually thevictim had been an initiator and a willing participant in the illegal conduct.136 “Consent” in thisregard means “intelligent, knowing, and voluntary consent.”137 In crimes of violence, the mere factthat 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 haveto be legally sufficient to warrant a finding that the defendant acted in self-defense.139 This mitigatoris not available in cases involving the sale of illegal drugs.140 While in the civil context a passenger’svoluntary action of knowingly riding in an automobile with an intoxicated driver can implicatecomparative negligence principles to reduce damage awards,141 these comparative negligenceprinciples do not extend to the statutory sentence mitigator of “willing participation by the victim”

135See, State v. Johns, 576 So. 2d 1332 (Fla. 5th DCA 1991) (reversal of downward departure sentence where the victimwas a 14-year old prostitute and the defendant was a police officer).

136Holland v. State, 953 So. 2d 19 (Fla. 2d DCA 2007).

137State v. Rife, 789 So. 2d 288 (Fla. 2001) (downward departure allowed in statutory rape case where victim was a willingparticipant 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 14–year-old prostitute charged defendant for sex cannotbe used as basis to mitigate sentence).

138Fonte v. State, 913 So. 2d 670 (Fla. 3d DCA 2005).

139Hines v. State, 817 So. 2d 964 (Fla. 2d DCA 2002) (downward departure sentence could be imposed even though juryrejected self-defense claim); State v. Mathis, 541 So. 2d 744, 745 (Fla. 3d DCA 1989) (affirming downward departure sentence inaggravated battery case where victim provoked defendant); State v. Tai Van Le, 553 So. 2d 258 (Fla. 2d DCA 1989) (affirmingdownward departure sentence in murder case on basis that victim was aggressor despite fact that jury apparently rejected defendant’sclaim of self-defense).

140State 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, 120–21 (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 permissiblesentence under sentencing guidelines would be reasonably justified, at sentencing for felony convictions for sale of cocaine within1,000 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 leadingto charges against defendant was not proper ground for downward departure in sentencing).

141See, e.g., Gerena v. Carter, 496 So. 2d 1009 (Fla. 2d DCA 1986) (in a civil action a victim’s intoxication may preclude

recovery if he or she was more than 50% at fault for his or her own harm); Florida East Coast Ry. Co. v. Keilen, 183 So. 2d 547,549–50 (Fla. 3d DCA 1966) (Florida imposes a duty upon the guest to make a reasonable attempt, suitable to the occasion, to rectifythe conduct of the driver whom he knows or by the exercise of ordinary and reasonable care should know is not exercising that degreeof care in the operation of the vehicle compatible with the guest’s safety.).

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in a criminal DUI manslaughter case142 absent a causal connection between the victim’s conduct anddefendant’s reckless driving.143

The defendant acted under extreme duress or under the domination of anotherperson144

The mitigator of extreme duress presupposes that a harm or crime of greater magnitude isavoided when the subjected person succumbs to the duress.145 “Duress” as used in this sense doesnot mean internal pressure, but actually refers to external provocation such as imprisonment or theuse of force or threats.146 The compulsion or coercion which will support a departure sentence isakin to the common law defense of duress used to excuse the commission of a criminal act: It mustbe present, imminent, and impending, and of such a nature as to induce a well groundedapprehension of death or serious bodily harm if the act is not done; it must be continuous, and theremust be no reasonable opportunity to escape the compulsion without committing the crime. A threatof future injury is not enough, particularly after danger from the threat has passed. However, it is notnecessary that the defendant show that he or she was absolutely driven and made to commit the actcharged as a crime.147 Legal recognition of duress as a defense to crimes other than homicidenecessarily assumes a working hypothesis that a harm or crime of greater magnitude is avoided whenthe subjected person succumbs to the duress.148 As to domination by another person, the dominationmust be substantial and evidence that the defendant was easily led is insufficient, in and of itself, toestablish this mitigator.149 Evidence that the defendant played a substantial part in the planningand/or execution of the offense can be sufficient to rebut or deny this mitigator.150

142State v. Torres, 60 So. 3d 560 (Fla. 2d DCA 2011).

143See, e.g., State v. Hinds, 85 Wash. App. 474, 936 P.2d 1135 (Div. 1 1997) (willing participant mitigating factor may beapplicable in sentencing for vehicular homicide where victim provided alcohol to 18-year-old and allowed him to drive herautomobile and causal connection is found between victim's conduct and defendant’s recklessness).

144§ 921.0026(2)(g), Fla. Stat.

145See, Wright v. State, 402 So. 2d 493 (Fla. 3d DCA 1981).

146Pooler v. State, 704 So. 2d 1375 (Fla. 1997) (fact that his former girlfriend had been seeing another man, even if it causeddefendant 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).

147See, Hall v. State, 136 Fla. 644, 187 So. 392 (1939).

148Wright v. State, 402 So. 2d 493 (Fla. 3d DCA 1981).

149See, Lawrence v. State, 846 So. 2d 440 (Fla. 2003).

150See, Philmore v. State, 820 So. 2d 919 (Fla. 2002); White v. State, 817 So. 2d 799 (Fla. 2002).

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Before the identity of the defendant was determined, the victim wassubstantially compensated151

This provision has not been the subject of appellate litigation in this state, but the litigationof equivalent provisions152 in other states provides insights into the appropriate application in Floridaof this basis for departure sentencing. This provision represents a legislative distinction between theobjective manifestation of remorse as a reaction to the commission of the crime and subjectivemanifestations of remorse as a reaction to potential sentencing consequences: Efforts to compensatebefore 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 ofremorse than the often dubious expression of remorse made only after the defendant is called intoaccount for his or her actions. This legislative determination thus allows inclusion of reliable pre-detection evidence of remorse in sentence determination.153 This departure is also based on the factof 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 beforedetection.157 The actions of the defendant must also demonstrate remorse, as opposed to actionsundertaken by the defendant for other considerations.158

151§ 921.0026(2)(h), Fla. Stat.

152E.g., Tenn. Code Ann. § 40–35–113(5) (2004) allows for sentence mitigation if “ Before detection, the defendantcompensated or made a good faith attempt to compensat e t he victim of criminal conduct for the damage or injury the victimsustained”; Rev. Code. Wash. § 9.94A.535(1)(b) (2004) allows for departure downward from that state’s sentencing guidelines if“Before detection, the defendant compensated, or made a good faith attempt to compensate, the victim of the criminal conduct forthe damage or injury sustained.”

153See, State v. McClarney, 107 Wash. App. 256, 26 P.3d 1013 (Div. 1 2001).

154State v. McClarney, 107 Wash. App. 256, 26 P.3d 1013 (Div. 1 2001).

155See, State v. Morris, 1998 WL 508053 (Tenn. Crim. App. 1998).

156See, State v. Ramsey, 2003 WL 21658589 (Tenn. Crim. App. 2003) (in course of home-invasion robbery involving theftof firearm and computer CPU and monitor, after removing batteries from victim's cellular telephone and taking cord from victim’sother telephone, giving victim $4 to replace telephone cord before leaving crime scene not sufficient compensation).

157See, State v. Kinneman, 120 Wash. App. 327, 84 P.3d 882 (Div. 1 2003) (payment of restitution into court registry afterapprehension); State v. Burns, 2000 WL 1858997 (Tenn. Crim. App. 2000) (payment of restitution before sentencing hearing butafter defendant charged); State v. Wallace, 2000 WL 1782757 (Tenn. Crim. App. 2000) (payment to business for forged check beforedefendant charged but subsequent to police involvement); State v. Burgess, 1997 WL 154058 (Tenn. Crim. App. 1997) (defendantmade no effort to compensate victim until day of sentencing hearing).

158See, 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 anattempt to compensate the victim but was rather a product of the abusive and controlling relationship by the [defendant] towards thevictim”); State v. Galindo, 2000 WL 378314 (Tenn. Crim. App. 2000) (offer of restitution when defendant knew she was about toget caught).

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The defendant cooperated with the State to resolve the current offense or anyother offense159

The court must also make a finding based on competent substantial evidence that a crime,or crimes, had been resolved as a result of the defendant’s cooperation.160 A departure sentencecannot be based on cooperation where the assistance does not result in solving any crimes or thearrest of other persons.161 A defendant’s act of turning himself or herself in to the police does notconstitute cooperation with authorities and cannot serve as the basis for a downward departure.162 A defendant’s action in not requiring police officers to get a search warrant to search his or her homeand giving a statement to officers does not rise to the level of cooperation required in order to justifya downward departure sentence.163 Confessing to the crimes for which he or she is charged andallowing the police to search his or her room, where no contraband is found or crimes solved as aresult and where it does not lead to the arrest of other persons, cannot serve as the basis for adownward departure.164 Merely pleading guilty is not sufficient cooperation for departure below therequired sentence.165 Prior cooperation with the State that results in sentence mitigation cannot beused to mitigate sentencing for a new offense or a violation of probation or community control.166 A defendant’s cooperation can also be devalued for departure purposes where he or she commitsadditional 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 wasprovided, and so the cooperation can occur before the commission of the offense for whichmitigation is sought.168

Substantial assistance can also be a basis for post sentencing mitigation of a defendant’ssentence. Notwithstanding any other law, the state attorney may move the sentencing court to reduce

159§ 921.0026(2)(i), Fla. Stat.

160See, State v. Bell, 854 So. 2d 686 (Fla. 5th DCA 2003); State v. Beck, 763 So. 2d 506 (Fla. 4th DCA 2000).

161State v. Ertel, 886 So. 2d 423 (Fla. 2d DCA 2004).

162State v. Laroe, 821 So. 2d 1199 (Fla. 5th DCA 2002).

163State v. Ertel, 886 So. 2d 423 (Fla. 2d DCA 2004).

164State v. White, 894 So. 2d 293 (Fla. 2d DCA 2005).

165State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985).

166See, State v. Bell, 854 So. 2d 686 (Fla. 5th DCA 2003).

167State v. Pita, 54 So. 3d 557 (Fla. 3d DCA 2011).

168Hill v. State, 122 So. 3d 1003 (Fla. 1st DCA 2013).

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or suspend the sentence of any person who is convicted of violating any felony offense or whoprovides substantial assistance in the identification, arrest, or conviction of any of that person’saccomplices, accessories, coconspirators, or principals or of any other person engaged in criminalactivity that would constitute a felony. The arresting agency must be given an opportunity to beheard in aggravation or mitigation in reference to any such motion. Upon good cause shown, themotion may be filed and heard in camera. The judge hearing the motion may reduce or suspend thesentence if the judge finds that the defendant rendered such substantial assistance.169 The decisionto reduce a sentence in response to a motion under section 921.186 is entirely within the discretionof the trial court and orders denying such motions are not appealable.170

The offense was committed in an unsophisticated manner and was an isolatedincident for which the defendant has shown remorse171

Section 921.0026(2)(j), Fla. Stat. requires that the defendant prove three elements: (1) theoffense was committed in an unsophisticated manner, (2) it was an isolated incident, and (3) thedefendant 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 beingthe opposite of sophisticated; further, as “having acquired worldly knowledge or refinement; lackingnatural simplicity or naivete.”174 While lack of sophistication is demonstrated by artlessness,simplicity, naiveté, and unrefinement, sophistication sufficient to defeat this basis for downwarddeparture can be found where the defendant has taken careful, distinctive, and deliberate steps toperpetrate 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 anobject at the windshield of the vehicle his or her victim is operating in order to get the victim to stopand be accessible to the defendant,176 where the defendant gains entry to the victim’s residence by

169§ 921.186, Fla. Stat.

170Cooper v. State, 106 So. 3d 32 (Fla. 1st DCA 2013).

171§ 921.0026(2)(j), Fla. Stat.

172State 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).

173State v. Deleon, 867 So. 2d 636 (Fla. 5th DCA 2004); State v. Falocco, 730 So. 2d 765 (Fla. 5th DCA 1999).

174American 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”).

175State v. Perez–Gonzalez, 884 So. 2d 1031 (Fla. 3d DCA 2004).

176State v. Chestnut, 718 So. 2d 312 (Fla. 5th DCA 1998).

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deceit,177 or where the defendant makes a calculated decision not to flee after detection and tocontinue the offense or defeat the detection.178

Neither the legislature nor the courts has established a bright-line rule for determiningwhether an offense is an isolated incident. Section 921.0026(j) cannot, and should not, be read tomean that as long as the defendant has never committed the exact offense fo which he or she iscurrently being sentenced, the offense cannot be considered isolated regardless of the defendant’scriminal history.179 A trial court is not, however, precluded from giving a defendant a downwarddeparture sentence just because the defendant has any prior criminal history.180 “Isolated” offensesdo not include continuing offenses.1 81 A crime may not be considered an isolated incident forpurposes of this basis of departure where the defendant has been convicted of other felonies andmisdemeanors.182 A prior history of like crimes can render this basis for departure unavailable.183 A defendant’s extensive prior criminal record precludes a showing that an offense was “an isolatedincident.”184 Note that it is proper for the sentencing court to consider the defendant’s prior juvenilerecord when determining whether or not an offense is isolated.185

177State v. Morales, 718 So. 2d 272 (Fla. 5th DCA 1998).

178State v. Salgado, 948 So. 2d 12 (Fla. 3d DCA 2006).

179State v. Henderson, 152 So. 3d 49 (Fla. 5th DCA 2014).

180See, e.g., State v. Fontaine, 955 So. 2d 1248, 1251 (Fla. 4th DCA 2007) (Warner, J., concurring) (the defendant’s currentoffense was an isolated incident where his criminal record included two misdemeanors that were committed ten years earlier); Statev. Randall, 746 So. 2d 550, 552 (Fla. 5th DCA 1999) (the defendant’s current offense was an isolated incident where he had onlyone prior criminal conviction).

181State v. Hinson, 855 So. 2d 119 (Fla. 1st DCA 2003) (Fleeing after VOP sentencing is not an isolated incident, but rathera continuous violation of the law; living at liberty for six and one-half years, solely due to leaving the area and successfully avoidingarrest and living as a fugitive on an outstanding warrant, is not a valid ground on which to depart downward).

182State v. Tice, 898 So. 2d 268 (Fla. 5th DCA 2005) (departure sentence of defendant convicted of burglary and resistingan officer without violence vacated where defendant had been previously convicted of resisting an officer without violence, twoviolations of probation, aggravated battery with a deadly weapon, and fleeing or attempting to elude a police officer); see also, Statev. Jordan, 867 So. 2d 635 (Fla. 5th DCA 2004).

183State v. White, 894 So. 2d 293 (Fla. 2d DCA 2005) (defendant sold cocaine during four-month period and was stillconsuming 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 driver’s license for person charged with driving getaway caron suspended license).

184State v. Ayers, 901 So. 2d 942 (Fla. 2d DCA 2005); State v. McGriff, 698 So. 2d 331 (Fla. 2d DCA 1997).

185State v. Waterman, 12 So. 3d 1265 (Fla. 4th DCA 2009).

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“Remorse” is defined as “a gnawing distress arising from a sense of guilt for past wrongs (asinjuries done to others).”186 The remorse expressed has to be for the offense before the court forsentencing, not for matters that gave rise to that offense.187 Guided statements elicited by the courtor counsel, simply saying “I’m sorry” at sentencing, or apologizing for pain the defendant caused thevictim’s family is not enough to satisfy the requirements of this basis for departure.188 It isimpossible for a defendant who refuses to accept responsibility for an offense to show remorse forthat offense.189 Sympathy is not the same as remorse, and a defendant’s expression of sorrow thata victim was injured or suffered some loss is not what the legislature contemplated in creating thisbasis for downward departure.190 Note that, ironically, this basis is available to support a downwarddeparture from a sentence for a driving under the influence (DUI) conviction; there is in fact noprohibition on such use of any of the mitigators listed in section 921.0026(2), Fla. Stat., where theoffense is intoxication, even though intoxication itself is not a valid reason for downwarddeparture.191

This basis for departure has been sustained on appeal where a 25–year-old defendantconvicted of committing a lewd and lascivious or indecent act on an almost 16–year-old sexuallyexperienced minor and enticing a minor to commit a lewd, lascivious or indecent act where there wasevidence that the three sex acts committed by the defendant were isolated because they weresomething the defendant had never engaged in before, that the acts took place in a relatively shortspan of time, that the defendant had no prior criminal history, that the sex acts were performed inan unsophisticated manner, and that the defendant truly was remorseful about his activitiesimmediately after being accused.192 Where an adult defendant has committed lewd molestation ona child victim, however, it might be difficult, if not impossible, to prove that the defendantcommitted the offense in an unsophisticated manner.193 This basis for departure has also beensustained on appeal where the defendant was charged with sale and possession of cocaine arising out

186Beasley v. State, 774 So. 2d 649 (Fla. 2000).

187State v. Michels, 59 So. 3d 1163 (Fla. 4th DCA 2011) (remorse for incident that gave rise to defendant being requiredto register as sexual offender does not meet statutory departure requirement where defendant is charged with failure to register).

188State 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, 120–21 (Fla. 1st DCA 1998); State v. Baker, 713 So. 2d 1027 (Fla. 2d DCA 1998), opinionquashed, 733 So. 2d 992 (Fla. 1999); State v. Whiting, 711 So. 2d 1212 (Fla. 2d DCA 1998).

189State v. Ayers, 901 So. 2d 942 (Fla. 2d DCA 2005).

190State v. Chestnut, 718 So. 2d 312 (Fla. 5th DCA 1998).

191State v. VanBebber, 848 So. 2d 1046 (Fla. 2003).

192State v. Merritt, 714 So. 2d 1153 (Fla. 5th DCA 1998).

193See, State v. Subido, 925 So. 2d 1052 (Fla. 5th DCA 2006) (15-year-old sleeping victim); State v. Munro, 903 So. 2d381 (Fla. 2d DCA 2005) (seven-year-old victim); State v. Bernard, 744 So. 2d 1134 (Fla. 2d DCA 1999).

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of four instances when the defendant sold a total of 1.8 gram of cocaine to the same confidentialinformant over a period of several days, netting the defendant $220, where the defendant had noprior history of drug charges, made a full confession to the police after his arrest, claimed the onlyreason he was selling drugs was to buy Christmas presents for his children, and appeared to beremorseful.194

At the time of the offense the defendant was too young to appreciate theconsequences of the offense195

The youthful age of an offender is not a valid reason for a departure sentence unless there areother factors present, such as emotional immaturity or lack of intelligence.196 In other words, adefendant’s youthful age alone will not justify a departure sentence. There must also be evidence thatthe 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 consequencesof the offense in order to be eligible for a downward departure sentence on this basis.198 In thosecases where age has been considered as a basis of departure, it has generally been accompanied bya clean record, although some courts have required an even greater showing, such as the support offriends and family.199 In some cases youthful age of the defendant, coupled with some reasonablechance for the defendant’s rehabilitation, has been deemed a sufficient foundation for departure onthis basis.200

194State v. Randall, 746 So. 2d 550 (Fla. 5th DCA 1999).

195§ 921.0026(2)(k), Fla. Stat.

196State v. Evans, 630 So. 2d 203 (Fla. 2d DCA 1993); see also, State v. Williams, 963 So. 2d 281 (Fla. 4th DCA 2007),on reh’g, 978 So. 2d 187 (Fla. 4th DCA 2007) (the age of twenty-two does not place a defendant in the category of being too youngto appreciate the consequences of driving with a revoked license); State v. Gilson, 800 So. 2d 727 (Fla. 5th DCA 2001) (age of 18years is not, alone, a sufficient basis for departure but may be if coupled with comp et ent subs t ant ial evidence of emotionalimmaturity); 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, 120–21 (Fla. 1st DCA 1998) (age is not a legitimate basis for departure when defendant is48 years old at time of sentencing); State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985) (23 years of age is not considered youngfor a robber).

197State 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).

198State v. Salgado, 948 So. 2d 12 (Fla. 3d DCA 2006).

199See, State v. Licea, 707 So. 2d 1155 (Fla. 2d DCA 1998); State v. Williams, 637 So. 2d 45 (Fla. 2d DCA 1994).

200State v. Whiddon, 554 So. 2d 651 (Fla. 1st DCA 1989).

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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 isclassified as such by the Department of Corrections pursuant to section 958.04.202 There are twoways by which a defendant can become entitled to the benefits of the YO statute. Either the trialcourt can sentence the defendant as a YO, or the Department of Corrections can designate adefendant 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 criminaldivision 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 nolocontendere or guilty to a crime that is, under the laws of this state, a felony if the offender is youngerthan 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 ofchapter 985; however, a person who has been found guilty of a capital or life felony may not besentenced as a YO under the Youthful Offender Act.

The defendant is entitled to an opportunity to present to the court facts which wouldmaterially affect the decision of the court to adjudicate the defendant a YO. The defendant, his orher attorney, and the state are entitled to inspect all factual material contained in the comprehensivepresentence report or diagnostic reports prepared or received by the Department of Corrections. Thevictim, the victim’s parent or guardian if the victim is a minor, the lawful representative of the victimor of the victim’s parent or guardian if the victim is a minor, or the victims next of kin in the caseof 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 ofinformation 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.

203See, Smith v. State, 750 So. 2d 754 (Fla. 1st DCA 2000).

204On October 1, 2008, section 958.04(1)(b) was amended by Ch. 2008-250, § 7(1), Laws of Florida by substituting “the

offender is younger than 21 years of age at the time sentence is imposed” for “such crime was committed before the defendant’s 21stbirthday” following “felony if” in paragraph (b). This change has not been given retroactive effect, however, making defendants whowere 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 offenderstatus after this change in the law went into effect. See, Urban v. State, 46 So. 3d 1113 (Fla. 5th DCA 2010).

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parts of the report are not disclosed, the court must state for the record the reasons for its action andshall 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 ofconsecutive 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 controlprogram, with or without an adjudication of guilt, under such conditions as the court may lawfullyimpose for a period of not more than six years. Such period of supervision may not exceed themaximum 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 communitycontrol, which period of incarceration shall be served in a county facility, a Department ofCorrections probation and restitution center, or a community residential facility that is owned andoperated by any public or private entity providing such services. A YO may not be required to servea 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 bedspace, taking into account the purpose and function of such facility or center, and placement in sucha 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 orcommunity control upon completion of any specified period of incarceration; however, if theincarceration period is to be served in a Department of Corrections facility other than a probation andrestitution center or community residential facility, such period must be for not less than one yearor more than four years. The period of probation or community control must commence immediatelyupon the release of the YO from incarceration. The period of incarceration imposed or served andthe 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 aperiod of not more than six years, provided that any such commitment may not exceed the maximumsentence for the offense for which the YO has been convicted. Successful participation in the YOprogram by an offender who is sentenced as a YO by the court pursuant to this section, or isclassified 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, communitycontrol, or the sentence at any time prior to the scheduled expiration of such term. When amodification of the sentence results in the reduction of a term of incarceration, the court may imposea term of probation or community control which, when added to the term of incarceration, shall notexceed the original sentence imposed.

205§ 958.07, Fla. Stat.

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Consecutive YO sentences exceeding the applicable maximum of six years are illegal.206 Asentencing court can impose any YO sentence, so long as no matter how many sentences areimposed, the total does not exceed four years incarceration followed by two years probation orcommunity control allowed by the applicable youthful offender statute.207 A violation or allegedviolation of probation or the terms of a community control program subjects the youthful offenderto the provisions of section 948.06. However, no youthful offender can be committed to the custodyof the Department of Corrections for a substantive violation for a period longer than the maximumsentence for the offense for which the youthful offender was found guilty, with credit for time servedwhile incarcerated, or for a technical or nonsubstantive violation for a period longer than six yearsor for a period longer than the maximum sentence for the offense for which he or she was foundguilty, whichever is less, with credit for time served while incarcerated.208 The legislature has notdefined “substantive violation” or “technical or nonsubstantive violation,” but courts examining theYouthful Offender Act have defined “substantive violation” as a new separate criminal offense bya youthful offender,209 whether or not he or she is ever charged or convicted of that new criminaloffense.210 In contrast, a technical violation is a violation of a rule of probation or communitycontrol.211

The provisions of the YO Act cannot be used to impose a greater sentence than thepermissible sentence range as established by the Criminal Punishment Code pursuant to chapter 921unless 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 tosection 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

206Schebel v. State, 721 So. 2d 1177 (Fla. 1st DCA 1998).

207Nguyen v. State, 566 So. 2d 368 (Fla. 5th DCA 1990).

208§ 958.14, Fla. Stat.

209Swilley v. State, 781 So. 2d 458 (Fla. 2d DCA 2001); Meeks v. State, 754 So. 2d 101, 103 (Fla. 1st DCA 2000), approvedin part, 789 So. 2d 982 (Fla. 2001); Robinson v. State, 702 So. 2d 1346, 1347 (Fla. 5th DCA 1997); Johnson v. State, 678 So. 2d934 (Fla. 3d DCA 1996).

210See Christian v. State, 84 So. 3d 437 (Fla. 5th DCA 2012), review denied, 134 So. 3d 446 (Fla. 2014).

211Swilley 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 felonyreclassified under 10/20/Life statute as life felony precludes sentencing as youthful offender).

213Legette v. State, 694 So. 2d 826 (Fla. 2d DCA 1997).

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sentence a defendant as a youthful offender does not result in an illegal sentence.214 A defendant maynot be simultaneously sentenced as both a youthful offender and as an adult.215 The sentencing courtmay not impose a youthful offender sentence on one count, but not another, even if part of a pleaagreement.216 As the intent of the Youthful Offender Act was to provide a sentencing alternativemore stringent than the juvenile system but less harsh than the adult system, imposition ofconsecutive 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, prohibitedonce a court classifies a defendant as a YO. Minimum mandatory sentencing, in fact, is notapplicable when a defendant is sentenced as a YO.218 A YO sentence may be imposed on adefendant in lieu of a mandatory sentence under the “10–20–Life” scheme mandated by the firearmenhancement statute, section 775.087, Fla. Stat., because the firearm enhancement statute containsno language to supersede a YO sentence.219 Imposition of the statutorily mandated minimummandatory prison sentence and fine under the drug trafficking statute, section 893.135, Fla. Stat., isalso preempted by the YO statute.220 A defendant classified as a YO is not subject to the minimummandatory provisions of the DUI manslaughter statute,221 and the trial court can withholdadjudication for DUI offenses notwithstanding the mandatory language of section 316.656(1), Fla.

214Edwards v. State, 830 So. 2d 141 (Fla. 5th DCA 2002).

215See, Johnson v. State, 596 So. 2d 495 (Fla. 5th DCA 1992) (a defendant simultaneous ly sentenced to four yearsincarceration in two cases as a youthful offender, followed by ten years probation as an adult in two other cases, received an illegalsentence).

216Goelz v. State, 937 So. 2d 1237 (Fla. 4th DCA 2006).

217Kelly v. State, 739 So. 2d 1164 (Fla. 5th DCA 1999); see, Allen v. State, 526 So. 2d 69 (Fla. 1988).

218See, State v. Oglester, 830 So. 2d 124 (Fla. 3d DCA 2002); State v. Drury, 829 So. 2d 287 (Fla. 1st DCA 2002); Statev. 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 DCA1985).

219Bennett 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 toenumerated felonies involving firearm do not supercede youthful offender sentence); Salazar v. State, 544 So. 2d 313 (Fla. 2d DCA1989) (3–year minimum mandatory for use of firearm does not apply to youthful offender); Patterson v. State, 408 So. 2d 785 (Fla.2d DCA 1982) (same).

220Inman 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 defendantsentenced as youthful offender); State v. Richardson, 766 So. 2d 1111 (Fla. 3d DCA 2000) (mitigating 15–year minimum mandatory

sentence as a youthful offender for 19–year-old defendant convicted of trafficking in excess of 400 grams of cocaine was within trialcourt’s discretion); Jones v. State, 588 So. 2d 73 (Fla. 4th DCA 1991) (mandatory three-year sentence for conviction of selling drugswithin 1,000 feet of school does not apply to defendant sentenced as youthful offender).

221State v. Gibron, 478 So. 2d 475 (Fla. 2d DCA 1985).

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Stat.222 A defendant classified as a YO may, however, also bedesignated as a sexual offender orsexual predator.223 If designated a sexual offender or sexual predator, the defendant is subject to themandatory conditions of probation set out in section 948.30, Fla. Stat., notwithstanding thedefendant’s designation as a YO.224 An otherwise qualified defendant who was originally sentencedas 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 thedefendant’s offense is a nonviolent felony, the defendant’s Criminal Punishment Code scoresheettotal sentence points under section 921.0024 are 60 points or fewer, and the court determines thatthe defendant is amenable to the services of a postadjudicatory treatment-based drug court programand is otherwise qualified to participate in the program as part of the sentence. For purposes of thisparagraph, 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 acandidate for a drug court program. This departure requires competent, substantial evidence of thedefendant’s 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 overcomedrug addiction through a treatment program. Minimally, this requires proof of some facts indicatinga defendant has the potential to reverse his or her prior life of addiction, and is sincere in the desireto do so. Something more than a defendant’s perfunctory statement that he or she is a fit subject torehabilitation is needed.229

222Sloan v. State, 884 So. 2d 378 (Fla. 2d DCA 2004).

223Dejesus v. State, 862 So. 2d 847 (Fla. 4th DCA 2003).

224State v. Miller, 888 So. 2d 76 (Fla. 5th DCA 2004).

225See, Hill v. State, 927 So. 2d 1047 (Fla. 2d DCA 2006); Williams v. State, 889 So. 2d 969 (Fla. 4th DCA 2004); Mearnsv. State, 779 So. 2d 282 (Fla. 2d DCA 1998).

226§ 921.0026(2)(m), Fla. Stat.

227§ 921.0026(2)(m), Fla. Stat.

228See State v. Kutz, — So. 3d —, 2015 WL 403969 (Fla. 2d DCA 2015) (a possible gambling addiction does not providecompetent, substantial evidence that defendant qualified for a drug program and could not be a basis of a downward departure underthis mitigator); also State v. Hudson, 153 So. 3d 375 (Fla. 2d DCA 2014).

229See State v. Parker, 733 So. 2d 1074 (Fla. 5th DCA 1999).

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The defendant was making a good faith effort to obtain or provide medicalassistance for a drug-related overdose230

Mitigating circumstances under which a departure from the lowest permissible sentence isreasonably justified includes situations where the defendant was making a good faith effort to obtainor provide medical assistance for an individual experiencing a drug-related overdose.231

This statutory basis for downward departure sentencing was enacted by the FloridaLegislature in the 2012 session as part of the 911 Good Samaritan Act, SB 278, that created section893.21, Fla. Stat., which provides that a person who in good faith seeks medical assistance for anindividual experiencing a drug-related overdose may not be charged, prosecuted, or penalized forpossession of a controlled substance if the evidence for possession was obtained as a result of theperson’s seeking medical assistance. This law provides that a person who experiences a drug-relatedoverdose and is in need of medical assistance may not be charged, prosecuted, or penalized forpossession of a controlled substance if the evidence for possession was obtained as a result of theoverdose and the need for medical assistance. The law also states that the above-described protectionfrom prosecution for possession offenses may not be grounds for suppression of evidence in othercriminal prosecutions. Because there is no stated exclusion from being charged, prosecuted orpenalized for a person who has committed any other offenses or who has an outstanding arrestwarrant, such an exclusion should not be presumed. Persons who are in possession of traffickingamounts of controlled substances are not meant to benefit from the bill’s provisions. Likewisepersons who possess a controlled substance with the intent to sell, deliver, manufacture or purchasewould 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, thelegislature provided that the various crimes included therein mandatory minimum sentences shouldbe imposed. However, as part of the legislative scheme to stem trafficking in drugs, the legislatureauthorized trial courts to mitigate a mandatory sentence upon motion by the state attorney if theconvicted person provides substantial assistance in the identification, arrest, or conviction of any ofthat person’s accomplices, accessories, co-conspirators, or principals or of any other person engagedin trafficking in controlled substances. As part of this provision, the arresting agency must be givenan opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon goodcause 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.

232See 2012 Florida S.B. 278, Bill Analysis and Fiscal Impact Statement, Professional St aff of t he Criminal JusticeCommittee, January 10, 2012.

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reduce or suspend the sentence if the judge finds that the defendant rendered such substantialassistance.233 In the absence of such a motion and a finding of substantial assistance, the court doesnot have any authority to sentence a defendant convicted of drug trafficking below the minimummandatory sentence.234 Note that, where the defendant enters into a plea agreement that he or sheis able to provide substantial assistance in exchange for the possibility of a sentence below thestatutory 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 enumeratedin the sentencing statutes.236 The list of statutory grounds for both upward and downward departurefor the former guidelines provided in section 921.0016(4), Fla. Stat., and for downward departurein section 921.0026(2), Fla. Stat., for the Criminal Punishment Code, which are statutes of inclusionand not exclusion, is, therefore, not exclusive of other valid legal grounds.237 This is consistent withthe established practice of individualized sentences resting on public policy considerations. Inevaluating a nonstatutory mitigating circumstance, however, the question the trial court should askis whether the nonstatutory reasons for downward departure given meet the legislative policy fordeparting downward.238

Unlike statutory mitigation that has been clearly defined by the legislature, nonstatutorymitigation may consist of any factor that could reasonably bear on the sentence imposed. Theparameters of nonstatutory mitigation are largely undefined, which is one of the reasons that theburden 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 PunishmentCode or guidelines minimum sentence may, in theory if not in actual fact, include virtually anyjustification that is reasonable under the circumstances. In the consideration of non-statutory reasonsfor 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, 120–21 (Fla. 1st DCA 1998).

235Arzola v. State, 994 So. 2d 1209 (Fla. 5th DCA 2008).

236McCorvey v. State, 872 So. 2d 395 (Fla. 1st DCA 2004).

237Franquiz v. State, 682 So. 2d 536, 538 (Fla. 1996); State v. Randall, 746 So. 2d 550, 552 (Fla. 5th DCA 1999).

238State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998).

239Israel v. State, 837 So. 2d 381 (Fla. 2002).

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mitigators that may be considered by a sentencing court.240 Factors that fall short of a defensesufficient to avoid responsibility for a crime by negating an element of an offense may even providea basis for mitigation at sentencing, in the totality of the circumstances. In such a situation, thecourt’s departure is reviewed under the abuse of discretion standard.241

The defense is required to identify for the court specific nonstatutory mitigatingcircumstances it is attempting to establish as a basis for departure.242 Unlike statutory mitigation thathas been clearly defined by the legislature, nonstatutory mitigation may consist of any factor thatcould reasonably bear on the sentence. A court may, therefore, impose a downward departuresentence for reasons not delineated in section 921.0026, so long as the reason given is supported bycompetent, substantial evidence and not otherwise prohibited.243

In seeking a downward departure for nonstatutory reasons (or for a combination of statutoryreasons where the facts of the case and of mitigation do not by themselves warrant downwarddeparture on the basis of any single statutory reason) the defense has to argue for, within theCriminal Punishment Code’s framework, a downward departure from the presumptive minimumsentence on the ground that the defendant’s circumstances present an “atypical case” that fallsoutside the set of circumstances to which the Legislature intends the provisions of the CriminalPunishment Code to apply. This is analogous to the “heartland” rule for downward departures fromthe federal sentencing guidelines announced by the United States Supreme Court in Rita v. UnitedStates.244 This approach argues that the presumption of reasonableness afforded a sentence that iswithin the authorization of the Criminal Punishment Code does not mean that a departure sentencecarries a presumption of unreasonableness or that only “extraordinary” circumstances can justify asentence below that authorized by the Code.245 Note that the First District Court of Appeal has ruledthat a trial court’s reliance on the federal “heartland” doctrine for sentencing in atypical federal cases,without further explanation of how this policy corresponds to Florida’s sentencing policies as set out

240See, e.g., Campbell v. State, 571 So. 2d 415 (Fla. 1990).

241See, e.g., State v. Williams, 870 So. 2d 938 (Fla. 5th DCA 2004) (departure on basis of diminished mental capacity); Statev. Sachs, 526 So. 2d 48 (Fla. 1988) (downward departure may be based on finding that defendant poses no future threat to societyand that his misconduct was isolated).

242See, Lucas v. State, 568 So. 2d 18 (Fla. 1990).

243State v. Stephenson, 973 So. 2d 1259 (Fla. 5th DCA 2008); State v. Laroe, 821 So. 2d 1199 (Fla. 5th DCA 2002); Statev. Randall, 746 So. 2d 550, 552 (Fla. 5th DCA 1999); State v. Turro, 724 So. 2d 1216, 1217 (Fla. 3d DCA 1998).

244Rita v. U.S., 551 U.S. 338, 127 S. Ct. 2456, 168 L. Ed. 2d 203 (2007).

245The United States Supreme Court has, for example, rejected an appellate rule that requires “extraordinary” circumstancesto 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. 2d445 (2007).

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by the Florida Legislature and case law interpretations, is not a valid ground for departure fromFlorida’s Criminal Punishment Code.246

Regardless, in evaluating a nonstatutory mitigating circumstance, a reviewing court mustconsider the reasons given in light of the stated legislative sentencing policy.247 Because the firstpurpose of sentencing is to punish, a downward departure from the permissible sentence isdiscouraged and adequate justification is required.248

Enticement

To entice a person typically means to attract that person artfully or adroitly or by arousinghope or desire; to tempt.249 The Fourth District Court of Appeal has rendered the opinion that lawenforcement enticement of a defendant to commit a crime is not one of the statutory enumeratedgrounds for a downward departure sentence, but that imposition of a downward departure based onenticement is not prohibited either.250 The basic argument for imposition of a downward departuresentence 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 ofentrapment, 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 anunoccupied pickup truck in the lot with a box in the truck bed indicating that it contained a pressurecleaner. John Henry Simmons was captured by the police as he was stealing the box from the truckbed after pulling up alongside the truck, getting out, walking around the truck two times, reachinginto 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 crimewhere law enforcement never even spoke to Simmons until after the crime was committed.251

246State v. Bowman, 123 So. 3d 107 (Fla. 1st DCA 2013).

247State 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 askis whether nonstatutory reasons given for downward departure meet legislative policy for departing downward in sentencing); Statev. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998).

248State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998).

249See 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, 120–21 (Fla. 1st DCA 1998).

250State v. Simmons, 80 So. 3d 1089 (Fla. 4th DCA 2012).


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A jury convicted Simmons for attempted burglary of a conveyance, and Simmons neveradmitted that the crime had occurred and did not assert entrapment as a defense at trial. Atsentencing, Simmons moved for a downward departure from the Criminal Punishment Codepresumptive sentence on the basis of enticement. The trial court granted the departure and the Stateappealed. The Fourth District reversed the downward departure sentence, finding that the trial courtapplied the correct rule of law (that enticement is an allowed nonstatutory basis for a downwarddeparture), but that competent, substantial evidence did not support the court’s reason for imposingthe 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 toperceived abuses of sentencing laws, particularly as to graduated mandatory minimum sentencingschemes. A finding of sentencing entrapment or sentence manipulation will reduce a defendant’sculpability and can be relied upon to mitigate that defendant’s sentence.

Sentencing entrapment

Although the doctrine of sentencing entrapment may be relied upon to depart from theFederal Sentencing Guidelines,253 and it has so far not been formally recognized as a nonstatutorybasis for downward departure sentencing in Florida, it is not inconsistent with present sentencingdoctrine in this state. “Sentencing entrapment” occurs when outrageous official conduct overcomesthe will of an individual predisposed only to commit a minor or lesser offense and the individual isentrapped into committing a greater offense subject to greater punishment.254 The focus of thismitigator is on the defendant’s predisposition to commit the crime. A possible situation of sentencingentrapment would be where the government, in a reverse-sting operation, sets a price substantiallybelow the market price that leads a defendant to purchase significantly more drugs than thedefendant’s resources would have allowed him or her to do, thereby driving up the defendant'ssentencing range.255 Another possible situation would be where the government provides necessarycritical ingredients for the production or manufacture of illegal drugs not otherwise within the meansor resources of the defendant to procure.256 Under the doctrine of “sentencing entrapment,” thedefendant bears the burden of showing by a preponderance of the evidence that he or she waspredisposed only to sell smaller amounts of drugs or that he or she had neither the intent nor the


253U.S. v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996).

254See, U.S. v. Barth, 990 F.2d 422, 424 (8th Cir. 1993); U.S. v. Rogers, 982 F.2d 1241, 1245 (8th Cir. 1993).

255See, U.S. v. Hulett, 22 F.3d 779 (8th Cir. 1994).

256See, U.S. v. Berg, 178 F.3d 976 (8th Cir. 1999).

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resources for selling the larger amount he or she was entrapped into selling.257 If the defendantproves by a preponderance of the evidence that law enforcement engaged in sentence entrapment,the sentencing court may reduce the defendant’s prescribed sentence either by (1) granting adownward departure from the presumptive sentencing minimum or (2) applying only the penaltyprovision 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 aimedonly at increasing a person’s sentence. Whereas sentencing entrapment focuses on the predispositionof the defendant, the related concept of sentence manipulation is concerned with the conduct ofgovernment officials. Sentencing manipulation could occur, for example, where the governmentextends, prolongs, revives, or otherwise tailors an investigation merely to increase the defendant’ssentence.2 5 9 Sentence manipulation is most likely to occur in reverse-sting operations, where thegovernment can easily manipulate the type, quantity, or sheer weight of drugs involved to purposelyescalate a defendant’s potential prison sentence. Incremental minimum mandatory sentencing rangesbased upon weight or type of drug sold, delivered or manufactured create the potential for sentencingabuse by government agents using their knowledge of incremental sentencing minimums tomanipulate the quantity of drugs sold or manufactured in a reverse sting to increase a defendant’ssentence.260

Sentence manipulation by the police is a valid nonstatutory basis for downward departuresentencing in Florida. Although a defendant does not have a right to be arrested in order to beprevented from committing further crimes, a trial court has discretion to impose a downwarddeparture sentence when law enforcement allows a defendant to continue criminal activities for noreason other than to enhance the defendant’s sentence. When considering sentence manipulation asa basis for downward departure, the trial court’s inquiry should focus on law enforcement intent: Was the police operation continued only to enhance the defendant’s sentence or did legitimate lawenforcement reasons exist to support the police conduct, such as to determine the extent of thecriminal enterprise, to establish the defendant’s guilt beyond a reasonable doubt, or to uncover anycoconspirators? If legitimate law enforcement reasons exist, then a downward departure based onsentence manipulation is not warranted. If the sentencing court finds that the police did commitsentence manipulation, the departure sentence imposed should not go below what the defendant

257U.S. v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996).

258See, Ford v. State, 99 Ark. App. 119, 257 S.W.3d 560 (2007).

259U.S. v. Shephard, 4 F.3d 647, 649 (8th Cir. 1993).

260See, U.S. v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996); also, U.S. v. Calva, 979 F.2d 119 (8th Cir. 1992).

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would have received in the absence of sentence manipulation.261 Most other state and federal courtsreject sentence manipulation or “sentencing entrapment,” as articulated in the Steadman decision.262

Under the doctrine of sentence manipulation, the defendant seeking a downward departurebears the burden of showing sentence manipulation by a preponderance of the evidence.263 Thedefendant must do more than simply show that, as a result of the government’s participation, thecrime was prolonged beyond the first criminal act, or exceeded in degree or kind what the defendanthad done before.264 Rather, the defendant must demonstrate that the government’s activities werecarried to such a degree that the government’s conduct must be viewed as “extraordinarymisconduct”265 or “egregious . . . conduct that goes beyond legitimate police investigativepurposes.”266

Lower sentence of an equally or more culpable co–defendant

As a general principle, co-defendants should not be treated differently on the same or similarfacts.267 In an effort to provide equality of punishment for two or more persons who participated incommitting the same crime, the sentencing court may consider the lower sentence of an equally ormore culpable co-defendant as a basis for a downward departure from the presumptive sentencingrange for a defendant to achieve parity with a co-defendant or co-defendants. This means that, wherean equally or more culpable co-defendant has been granted a downward departure, the sentencingcourt can grant a downward departure to a defendant to achieve sentencing parity, so long as therecord contains competent and substantial evidence showing that the defendant’s culpability was lessor not greater than the culpability of the co-defendant.268 Mere proportionality with a co-defendant’ssentence does not, however, justify a downward departure.269 While upward departures under the

261State 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 sent ence in a drug trafficking case may not be avoided when there is evidence of police inducement orentrapment leading to quantity of contraband possessed or sold to be greater than defendant originally had disposition to possess orsell).

262See, People v. Smith, 31 Cal. 4th 1207, 7 Cal. Rptr. 3d 559, 80 P.3d 662 (2003) for a survey of federal and state caselaw on this topic.

263See, U.S. v. Gibbens, 25 F.3d 28 (1st Cir. 1994).

264See, U.S. v. Montoya, 62 F.3d 1 (1st Cir. 1995).

265See, U.S. v. Montoya, 62 F.3d 1 (1st Cir. 1995).

266See, State v. Soto, 562 N.W.2d 299 (Minn. 1997).

267Slater v. State, 316 So. 2d 539 (Fla. 1975).

268Sanders v. State, 510 So. 2d 296 (Fla. 1987).

269State v. Leverett, 44 So. 3d 634 (Fla. 5th DCA 2010).

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former guidelines may not be justified solely in order to match the sentence of a codefendant,270 adownward departure under the former guidelines or Criminal Punishment Code may be imposed forthat reason.271

Diminished mental capacity

The Florida Supreme Court has held that evidence of abnormal mental condition notconstituting legal insanity is inadmissible for purposes of negating specific intent or state of mindnecessary to prove a criminal offense, that persons with less serious mental deficiencies should beheld accountable for their crimes just as everyone else, but that if mitigation is appropriate, it maybe accomplished through sentencing.27 2 This means that, under appropriate circumstances and withsufficient proof, a mental defect less than insanity can form the basis of a downward departuresentence. 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 theDepartment of Corrections, but the trial court granted a downward departure and imposed a sentenceof 39 months’ imprisonment on the following facts, as summarized by the appellate court:

There was ample evidence that the defendant suffers from diminished mental capacity as well assignificant 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 difficultyin walking. He uses a cane and appears to have some long-standing orthopedic malformation of hislegs and/or feet. The defendant lives with his mother and has received Social Security SupplementalIncome for many years. There was evidence that the defendant receives treatment and therapy on hislegs, back and spine. He is very reliant on his mother, who sometimes helps him dress and whoprepares his meals. The defendant was deemed minimally competent to stand trial. Witnesses at thesentencing hearing testified that the defendant would not hold up well under incarceration, that froman 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 ofdiscretion and upheld the departure sentence, finding that this was a case in which diminished mentalcapacity constituted a valid legal ground for mitigation and downward departure at sentencing andwas supported by sufficient evidence of record.274

270Von Carter v. State, 468 So. 2d 276 (Fla. 1st DCA 1985); Thomas v. State, 461 So. 2d 274 (Fla. 5th DCA 1985).

271See, State v. Fernandez, 927 So. 2d 939 (Fla. 3d DCA 2006); Marchetta v. State, 766 So. 2d 1126 (Fla. 2d DCA 2000).

272Chestnut v. State, 538 So. 2d 820, 825 (Fla. 1989).

273State v. Williams, 870 So. 2d 938 (Fla. 5th DCA 2004).

274State v. Williams, 870 So. 2d 938 (Fla. 5th DCA 2004).

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Extraordinary restitution

In unusual cases extraordinary restitution, whether paid before or after a defendant enters aplea, can support a downward departure sentence. Ordinarily, payment of restitution is not a basisfor a downward departure and departures that are based on the payment of restitution are discouragedfor situations other than where the victim’s need for restitution outweighs the State’s need forincarceration. The situation is different, however, when the defendant makes extraordinary effortsto pay restitution, especially prior to entering a plea, that demonstrate acceptance of responsibilityand exceptional efforts to fully remedy the harm cause by the offense. The sentencing laws ofFlorida do not prohibit downward sentencing departures in such situations and no Florida appellatecourt has taken up the issue. Nonetheless, extraordinary restitution is a valid basis for downwarddeparture under federal sentencing guidelines, and federal law is instructive in this regard. Whilethere is no bright-line rule for determining when particular payments of restitution are extraordinaryenough to warrant downward departures, factors that a sentencing court can look to include thedegree of voluntariness, the efforts to which the defendant went to to make restitution, the percentageof funds restored, the timing of the restitution, and whether the defendant’s motive demonstratessincere remorse and acceptance of responsibility.275

Extraordinary susceptibility

The Fourth District Court of Appeal has rendered the opinion that extraordinary susceptibilityto committing crimes can be a lawful basis for a downward departure sentence. Specifically, theFourth District has held that a trial court’s downward departure sentence for a third and fourth DUI,based on defendant Ariel Montanez “experiencing great difficulty in his personal life due to hisdivorce which made him more susceptible to substance abuse” applied the correct rule of law. TheFourth District reversed the trial court, however, on the basis that the downward departure was notsupported by competent, substantial evidence. In reaching this conclusion, the Fourth District citedthe lack of evidence establishing that the “great difficulty” actually made the defendant moresusceptible to substance abuse, and the fact that the defendant has committed two other DUIs whichoccurred before the defendant’s divorce.276

Totality of circumstances

A downward departure sentence can be supported, in unusual cases, under a totality ofcircumstances analysis where no one statutory reason for departure is available. An example of adeparture sentence granted on this basis is the case of Shawn Strawser.

275See, U.S. v. Kim, 364 F.3d 1235 (11th Cir. 2004).

276State v. Montanez, 133 So. 3d 1151 (Fla. 4th DCA 2014).

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Strawser entered an open plea of nolo contendere to the crimes of sexual battery upon a childless than 12 years of age and lewd and lascivious molestation perpetrated by Strawser at age 15 or16 on his younger sister’s playmates. Strawser was charged as an adult and, under the applicablesentencing law, had a presumptive minimum sentencing range of 49 years in prison. Extensivetestimony was taken at sentencing, including that of an expert in the field of sex offender treatment,Strawser’s probation officer from his pretrial release program, persons with extensive experience inpreparing pre-sentence investigation reports, Strawser, and adverse testimony from the State’switnesses. 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 asexual predator.277

The trial judge, in accordance with the requirements of a downward departure utilizingsection 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 failedto explicitly articulate a finding on the “isolated incident” aspect of section 921.0026(2)(j); however,the court did comment on Strawser’s lack of a criminal record and his age and immaturity at the timeof the crimes. The trial court also noted that the recommendations of the arresting detective and thepretrial release officer were for a strictly probationary sentence. On appeal, the Fourth Districtupheld the departure on the basis that there was testimony in the record, accepted by the trial court,concerning Strawser’s youth, remorse, and immaturity to support the court’s finding that the abusewas committed in an unsophisticated manner and reflected immaturity, that there was also evidenceof Strawser’s lack of prior criminal history, and that, “taken as a whole,” the record reflected therequired support for the downward departure.278

Nexus to offense

Generally, mitigating circumstances supporting a downward departure ameliorate the levelof the defendant’s culpability.279 Many judges require a nexus between the proffered mitigationevidence 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 defendant’sactions for the mitigator to be given weight.280 The defense is required to identify for the courtspecific nonstatutory mitigating circumstances it is attempting to establish.281

277State v. Strawser, 921 So. 2d 705 (Fla. 4th DCA 2006).

278State v. Strawser, 921 So. 2d 705 (Fla. 4th DCA 2006).

279Rafferty v. State, 799 So. 2d 243, 106 A.L.R.5th 783 (Fla. 2d DCA 2001); State v. D’Alexander, 496 So. 2d 1007, 1008(Fla. 2d DCA 1986).

280See, Cox v. State, 819 So. 2d 705 (Fla. 2002) (penalty phase in a first degree murder case).

281See, Lucas v. State, 568 So. 2d 18 (Fla. 1990).

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Limits on sentence mitigation

Mitigation is not, however, without limits. The purpose of the sentencing guidelines and theCriminal Punishment Code is to establish a uniform set of standards to guide the sentencing judgein the sentence decision-making process so as to eliminate unwarranted variation in sentencing. Itis the stated policy of the courts of Florida that sentencing alternatives should not be used to thwartthe sentencing guidelines or Criminal Punishment Code.282

These limits are particularly manifest where the defendant to be sentenced has a history ofsubstance abuse and the sentencing court is inclined to avoid imposing a prison sentence otherwisemandated by the former guidelines or Criminal Punishment Code. In former times, substance abusein and by itself was a sufficient reason to sentence below minimum levels otherwise mandated bythe former guidelines or Criminal Punishment Code. In response, the Legislature rewrote Chapter921 to provide that “[t]he defendant’s substance abuse or addiction, including intoxication at thetime of the offense, is not a mitigating factor . . . and does not, under any circumstances, justify adownward departure from the permissible sentencing range.”283 This means that substance abuseor addiction cannot be the basis of a downward departure, even if couched in terms ofrehabilitation.284 In 2009 the Legislature created a narrow exception to this prohibition for casesfalling under section 921.0026(2)(m). As a result, a defendant’s substance abuse or seemingamenability to drug rehabilitation presently does not, under most circumstances, justify a downwarddeparture from sentencing guidelines or the Criminal Punishment Code minimum sentence, and sucha 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 fordeparture in the past, some courts have tried to avoid such otherwise mandated prison sentences bysuspending 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 aminimum prison term under the former guidelines or Criminal Punishment Code and the trial courtsuspends the incarcerative portion of the defendant’s sentence and places the defendant on probation. If there is justification, however, such sentences will withstand appellate scrutiny and if not they will

282See, Disbrow v. State, 642 So. 2d 740 (Fla. 1994) (“[T]his Court has made it clear that sentencing alternatives shouldnot 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, 622So. 2d 941 (Fla. 1993); Johnson v. State, 596 So. 2d 495 (Fla. 5th DCA 1992); Dimilta v. State, 590 So. 2d 1074 (Fla. 2d DCA1991); Herrin v. State, 568 So. 2d 920 (Fla. 1990); Poore v. State, 531 So. 2d 161 (Fla. 1988).

283§ 921.0026, Fla. Stat.

284State 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).

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be reversed.286 A trial court may not depart, in any event, from a minimum mandatory sentenceunless the prosecutor recommends otherwise.287

A downward departure sentence that is the product of a negotiated plea agreement with theState can not be subsequently reduced or mitigated without the State’s consent. A defendantmay not accept the benefit of the bargain without accepting its burden, and so a defendant cannot usea Rule 3.800(c) motion to evade any of the terms of a negotiated plea. A court cannot get aroundthe terms of a negotiated plea through a “modification” of a defendant’s sentence at a later date, andsuch a change of the defendant’s sentence is reversible error.288

286State v. Grayson, 916 So. 2d 51 (Fla. 2d DCA 2005) (when Criminal Punishment Code worksheet recommends minimumprison sentence and, instead, trial court suspends incarcerative portion of sentence and places defendant on probation, sentenceconstitutes downward departure); State v. Harvey, 909 So. 2d 989 (Fla. 5th DCA 2005) (defendant’s suspended sentence conditionedon completion of inpatient treatment at drug rehabilitation facility was not functional equivalent of incarceration, in violation ofstatutes forbidding downward departure of a sentence due to a defendant’s 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 sentencedto 200 months’ incarceration suspended upon completion of fifteen years of probation); State v. Tyrrell, 807 So. 2d 122 (Fla. 5th DCA2002) (disapproved of by, State v. Chubbuck, 2014 WL 2765926 (Fla. 2014)); Travis v. State, 724 So. 2d 119, 120–21 (Fla. 1st DCA1998) (“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 50.7months to 49 years’ incarceration and defendant sentenced to 50.7 months in prison suspended on condition of successful completionof two years on community control followed by three years on probation; sentence was downward departure requiring sufficientreasons 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 30–50 months’ incarcerationand trial court imposed sentence of 35 months’ incarceration suspended with credit for 517 days time served followed by five yearsdrug offender probation); State v. Bray, 738 So. 2d 962, 963 (Fla. 2d DCA 1999) (“ Suspending the incarcerative portion of asentence, as the court did in the present case, is appropriate if a valid reason for a downward departure exists.”); State v. Norris, 724So. 2d 630 (Fla. 5th DCA 1998) (when sentencing guidelines required sentence of 64–100 months in prison and defendant sentencedto 70 months in prison, suspended upon completion of probation and attendance at six-month residential drug program, trial judgewas 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 9–15 years in prison and defendant sentenced to 10years’ incarceration suspended upon completion of probation); State v. Licea, 707 So. 2d 1155 (Fla. 2d DCA 1998) (downwarddeparture sentence imposed requiring sufficient reason for the departure when sentencing guideline’s range was 36.75–61.25 monthsstate prison and defendant received sentence of three years s t at e p rison, suspended, and one year jail followed by two yearscommunity 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. 2d937 (Fla. 2d DCA 1996) (defendant received downward departure sentence when guidelines scoresheet reflected a range of61.35–102.5 months and trial court sentenced him to eight years in prison, suspended, and two years community control to befollowed by three years probation); Salemi v. State, 636 So. 2d 824, 825 (Fla. 2d DCA 1994) (suspended sentence was technicallya one-cell upward departure from the guidelines, although suspension had the effect of providing a significant downward departure).

287State v. Andrews, 875 So. 2d 686 (Fla. 4th DCA 2004) (trial court may not depart below three year minimum mandatorysentence for aggravated assault on a law enforcement officer); Kelley v. State, 821 So. 2d 1255 (Fla. 4th DCA 2002) (drugtrafficking); 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).

288State v. Szempruch, 935 So. 2d 66 (Fla. 2d DCA 2006).

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Interpretation of sentencing law by appellate courts has defined additional limits on departuresentencing, including but not limited to the following examples:

— Judicial determination that the State would not be able to meet its burden of proof. Suchcould only be made after a trial and an acquittal or after the granting of a motion made by thedefendant pursuant to Fla. R. Crim. P. 3.190(c)(4).289

— Disagreement on the part of the sentencing judge with the jury’s 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 absenceis already factored into the presumptive sentencing guidelines.292

— The defendant’s lack of criminal activity since his or her arrest for the charged offense oroffenses.293

— Judicial determination that the recommended sentence does not reflect an appropriatesanction in light of the facts of the case. The Florida Supreme Court held in Scott v. State294

that “a trial court’s written finding that a recommended guidelines sentence is insufficientmay never serve as a reason for departure” unless there is “at least one clear and convincingreason for departure” in which case “such a statement [i.e., that the guidelines sentence isinappropriate] should be considered the trial court’s written conclusion that departure isnecessary based on the valid reasons given. . . . ” The reason that “the recommendedsentence 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 andcannot be a basis for departure.2 95 More specifically, a trial court may not depart downward

289State v. Perez, 802 So. 2d 1167 (Fla. 3d DCA 2001) (reservations on the part of the trial court about whether the Statecould prove its case is not a valid reason for a downward departure); Cf. State v. Wright, 473 So. 2d 268, 271–72 (Fla. 1st DCA1985).

290Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988); State v. Joiner, 498 So. 2d 1017 (Fla. 5th DCA 1986) (a judge’spersonal view of the lack of credibility of the testimony is not a clear and convincing reason for a downward departure where the juryhas determined otherwise).

291State v. Baker, 713 So. 2d 1027 (Fla. 2d DCA 1998), opinion quashed, 733 So. 2d 992 (Fla. 1999) (lack of criminalrecord); 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 DCA1986); State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985).

292State v. Hinson, 855 So. 2d 119 (Fla. 1st DCA 2003) (living at liberty for six and one-half years, solely due to leavingthe area and successfully avoiding arrest and living as a fugitive on an outstanding warrant, is not a valid ground on which to departdownward); State v. Green, 511 So. 2d 734 (Fla. 2d DCA 1987); State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985); see, Statev. McMullen, 529 So. 2d 821 (Fla. 3d DCA 1988).

293State v. Robinson, 149 So. 3d 1199 (Fla. 1st DCA 2014).

294Scott v. State, 508 So. 2d 335, 337 (Fla. 1987).

295Scott 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).

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based on its belief that the lowest permissible sentence is too harsh in accounting for thedefendant’s prior record because the Criminal Punishment Code has already taken thedefendant’s prior record into account; a downward departure on this basis represents nothingmore than the trial court’s disagreement with the weight the Criminal Punishment Code hasgiven 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 downwarddeparture.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 wasminuscule.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 thejudge can exercise more control over the defendant.302

— The fact that the defendant harmed no one and failed to commit additional crimes.303 Theabsence 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 PunishmentCode or guidelines sentence.304

296State v. Valdes, 842 So. 2d 859 (Fla. 2d DCA 2003); see also, State v. Lerman, 624 So. 2d 849 (Fla. 2d DCA 1993) (trialcourt’s departure on basis that defendant’s case was old and, if he had been sentenced earlier, he would have been serving thesentence in this case concurrently with his federal prison sentence reflects the trial court’s disagreement with the guidelines and isinvalid); State v. Baker, 498 So. 2d 1031 (Fla. 1st DCA 1986).

297State v. Lacey, 553 So. 2d 778 (Fla. 4th DCA 1989).

298State v. Thompkins, 113 So. 3d 95 (Fla. 5th DCA 2013).

299State v. Hall, 47 So. 3d 361 (Fla. 2d DCA 2010); § 921.0024(2), Fla. Stat.

300See, Atwaters v. State, 519 So. 2d 611 (Fla. 1988) (quantity of drugs involved in a crime may not be utilized as a properreason to support departure from the sentencing guidelines).

301See, Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988) (recommendation agains t p rison by state troopers whoinvestigated crime not a valid reason for departure); Montgomery v. State, 489 So. 2d 1225 (Fla. 5th DCA 1986) (recommendationof a probation officer was not a valid reason for a departure sentence).

302Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988); see also, Kendricks v. State, 508 So. 2d 532 (Fla. 2d DCA 1987)(trial court’s 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 wouldnot be acceptable reason for departure).

303State v. Stanard, 859 So. 2d 572 (Fla. 5th DCA 2003).

304State v. Green, 511 So. 2d 734 (Fla. 2d DCA 1987); State v. Caride, 473 So. 2d 1362 (Fla. 3d DCA 1985).

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— The fact that the defendant could have harmed the victim but did not,305 or committed theoffense less heinously than other defendants.306

— The fact that the victims were family members or loved ones and that a prison sentencewould increase the hardship on those victims. The legislature did not intend lesserpunishments when the victims of offenses are family members or loved ones,307 or to punishthose 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 physicaldisability, and the defendant is amenable to treatment.311

— The fact that the defendant had never been sent to prison before.312

— The defendant’s forthrightness with the court.313

— An expressed or indicated willingness to accept punishment and “pay the debt tosociety.”314

— The willingness of the defendant to “accept responsibility” by entering a plea in exchangefor a downward departure sentence.315

— The defendant’s admission of guilt and entry of an open plea. A defendant’s plea onlyprovides justification for downward departure when there has been a legitimate, uncoercedplea bargain with the State.316

305State v. Thompkins, 113 So. 3d 95 (Fla. 5th DCA 2013).

306State v. Subido, 925 So. 2d 1052 (Fla. 5th DCA 2006).

307Rafferty v. State, 799 So. 2d 243, 106 A.L.R.5th 783 (Fla. 2d DCA 2001).

308Cf. State v. Bray, 738 So. 2d 962 (Fla. 2d DCA 1999) (holding that the fact that a defendant had a child to support didnot support a downward departure).

309See, State v. McMullen, 529 So. 2d 821 (Fla. 3d DCA 1988).

310State v. Thomas, 516 So. 2d 1058 (Fla. 3d DCA 1987) (defendant’s blindness in one eye).

311Sec. 921.0026(2)(d).

312State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985) (“The fact that this robber had never been sentenced to prisonbefore is a compelling reason to do so now.”).

313State v. Thomas, 516 So. 2d 1058 (Fla. 3d DCA 1987).

314State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985).

315State v. Hall, 47 So. 3d 361 (Fla. 2d DCA 2010).


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— Saving the taxpayers money.317

— The fact that the defendant paid the court-ordered restitution for the cases in which he orshe was serving probation at the time he or she committed new felony offenses.318

— The fact (or assertion) that the defendant’s conviction has caused, or would cause, anadverse impact on the defendant’s professional career or make it difficult for the defendantto regain employment.319

— Pregnancy on the part of the defendant or the defendant’s girlfriend or spouse.320

— A defendant’s need to support a child outweighing the need for prison.321

— Representations by defense counsel that a defendant has already received a downwarddeparture 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 notfound in Florida statutory law.325

— The trial court’s observation that the disposition of criminal cases is handled differentlyin the court’s county than in other areas of the state.326

317Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988); State v. Peters, 500 So. 2d 704 (Fla. 1st DCA 1987) (concern forsocial cost of incarceration not valid reason for departure sentence).

318State v. Pita, 54 So. 3d 557 (Fla. 3d DCA 2011), citing State v. Walters, 12 So. 3d 298 (Fla. 3d DCA 2009) (holdingthat the law does not excuse the consequences of a theft based on a thief’s ability to make his victim monetarily whole).

319State 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 specialtreatment for the trained, educated, or licensed. To achieve equality in sentencing, trial judges must be blind to t he color of adefendant’s collar.”).

320State v. Licea, 707 So. 2d 1155 (Fla. 2d DCA 1998) (“Defendants certainly would seek to impregnate girlfriends orspouses, or become impregnated, if they believed that it would have an impact on an impending sentence,” which is an“unconscionable” scenario.).

321State v. Chapman, 805 So. 2d 906 (Fla. 2d DCA 2001).

322See, State v. Barnes, 753 So. 2d 605 (Fla. 2d DCA 2000).

323State v. Fulks, 884 So. 2d 1083 (Fla. 2d DCA 2004) (“mutual mistake of law” is not a valid basis for departure).

324State v. Stanton, 781 So. 2d 1129 (Fla. 3d DCA 2001).

325State v. Hall, 47 So. 3d 361 (Fla. 2d DCA 2010).


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Note, however, that even if some of the court’s stated reasons for departure are insufficient,only one valid reason is necessary to sustain a departure.327 If, however, the court’s writtenspecification of reasons for departure from the recommended guidelines sentence or CriminalPunishment Code presumptive minimum is permeated with impermissible considerations, and it isnot clear beyond a reasonable doubt that the court would have imposed the same sentence in theabsence of such invalid considerations, the sentence is subject to reversal on appeal.328 A trial courtmay not, in any event, enunciate new reasons for a departure sentence after the reasons given for theoriginal 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 downwarddeparture sentence and the defendant files a timely motion to reduce or modify the sentence pursuantto Fla. R. Crim. P. 3.800(c), the State is authorized pursuant to section 924.07(1)(i) to appeal anymodification or reduction that is a downward departure from the minimum sentence that could havebeen imposed on the defendant absent the plea agreement. A negotiated departure to which the Stateis a party is a quid pro quo and the defendant cannot accept the benefit of the bargain withoutaccepting its burden: To allow a defendant to use a Rule 3.800(c) motion to evade a negotiated pleawould 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 acontemporaneous written explanation for the imposition of any departure sentencing at a sentencinghearing. Fla. R. Crim. P. 3.701(b)(6) provides in relevant part that, while the sentencing guidelinesare designed to aid the judge in the sentencing decision and are not intended to usurp judicialdiscretion, departures from the presumptive sentences established in the guidelines “shall” bearticulated in writing and made when circumstances or factors reasonably justify the aggravation ormitigation of the sentence.3 3 1 Section 921.001(6) simply provides that any sentence imposed outsidethe 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

327State v. Randall, 746 So. 2d 550, 552 (Fla. 5th DCA 1999).

328State v. Peters, 500 So. 2d 704 (Fla. 1st DCA 1987).

329Shull v. Dugger, 515 So. 2d 748 (Fla. 1987).

330State v. Brooks, 890 So. 2d 503 (Fla. 2d DCA 2005) (defendant’s progress and conduct while in prison do not comprisesufficient “changes in circumstances” as to provide a basis for a defendant to evade the obligations of his or her negotiated plea).

331Fla. R. Crim. P. 3.701(b)(6).

332§ 921.001(6), Fla. Stat.

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contemporaneous written explanation for the imposition of any departure sentence at a sentencinghearing.333

The Florida Supreme Court has also ruled that, generally, when all of the reasons stated bythe trial court in support of departure are found invalid, resentencing following remand must bewithin the presumptive guidelines sentence. In other words, a trial court may not enunciate newreasons for a departure sentence after the reasons given for the original departure sentence have beenreversed by an appellate court. The Supreme Court has reasoned that the better policy requires thetrial court to articulate all of the reasons for departure in the original order, to hold otherwise mayneedlessly subject the defendant to unwarranted efforts to justify the original sentence and also mightlead to absurd results such as numerous resentencings as, one by one, reasons are rejected in multipleappeals.334 This rule has not, however, been extended to defendants sentenced under the CriminalPunishment Code, and on remand for sentencing a trial court is permitted to impose a downwarddeparture 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 thatincrease the duration of a defendant’s exposure to imprisonment, divided into the categories ofenhancements and reclassifications. Note that there is a distinction between “enhancement” ofpenalty laws and “reclassification” of offense laws, even though in some instances such a distinctionmay be without a difference in its practical effect. Enhancement is commonly associated with theprovince of the judge in sentencing. With enhancements, the charging document must pleadspecifically the basis for a requested enhancement and the statute authorizing the requestedenhancement; mere reference in the charging document to the statute is insufficient to provide noticeto the defendant that the State is seeking the specific enhancement.336 Note that absent language inthe applicable statutory law referencing attempts, attempts of qualifying crimes are not themselvesqualifying 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 defendant’sprior record includes conviction for a capital offense; the addition of victim injury points, prior

333Ree 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, 120–21 (Fla. 1st DCA 1998).

334Shull 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).

335Jackson v. State, 64 So. 3d 90 (Fla. 2011).

336See, Freudenberger v. State, 940 So. 2d 551 (Fla. 2d DCA 2006); Inmon v. State, 932 So. 2d 518 (Fla. 4th DCA 2006).

337See, Tambriz-Ramirez v. State, 112 So. 3d 767 (Fla. 4th DCA 2013).

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record points, legal status points, firearm points, prior serious felony points; and multiplication oftotal sentence points for the enhancements for law enforcement protection, drug trafficking, grandtheft motor vehicle, gang membership, and domestic violence. See §§ 5:1 et seq. Examples of othertypes of enhancements are found in the recidivist minimum mandatory sentencing provisions thataccompany designation of the defendant as a prison releasee reoffender, habitual felony offender,habitual violent felony offender, three- time violent felony offender, and violent career criminalpursuant 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 timethe 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 commissionof the crimes.339 Another example of reclassification occurs when the defendant wears a mask whilecommitting the underlying offense.340

Reclassifications and enhancements operate independently of one another and are notalternative methods of enhancement.341 As the court in Perez v. State observed, sentenceenhancement by reclassification of the crime to a higher degree increases the punishment byauthorizing a greater maximum penalty whereas imposition of a three-year mandatory minimumsentence merely ensures a minimum period of incarceration.342 For example, reclassification statutesand those imposing minimum mandatory sentences, although both may be predicated upon thedefendant’s use or possession of a firearm, operate independently and not alternatively. Thus nodouble jeopardy problem arises from the application of both provisions in a given case.3 4 3 Statedanother way, enhanced penalty crimes are still subject to the mandatory minimum sentence.344

338See, Mills v. State, 822 So. 2d 1284 (Fla. 2002) (holding that § 784.07, Fla. Stat., is a reclassification, and not anenhancement, statute).

339Cooper v. State, 455 So. 2d 588 (Fla. 1st DCA 1984).

340§ 775.0845, Fla. Stat.

341See, 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, 594So. 2d 292 (Fla. 1992)); Travis v. State, 724 So. 2d 119, 120–21 (Fla. 1st DCA 1998); Perez v. State, 431 So. 2d 274 (Fla. 5th DCA1983), decision approved, 449 So. 2d 818 (Fla. 1984).

342Perez 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).

343Gibbons v. State, 543 So. 2d 860 (Fla. 2d DCA 1989).

344See, 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).

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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 appliedwithout violating the principle of double jeopardy. With respect to more than one enhancement, thedouble jeopardy clause does no more than prevent the sentencing court from prescribing greaterpunishment than the legislature intended.346 Where two enhancement provisions serve differentpurposes and the legislature has not indicated that the provisions are to be mutually exclusive, bothenhancements may be imposed.347 There is also no double jeopardy prohibition against applying anenhancement to a felony that has already been reclassified.348

When dealing with situations in which both reclassification and enhancement apply, as wherethe defendant is convicted of an attempted crime that involves the use of a firearm, the court shouldsequentially (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 thatby law increases the penalty for a crime is an “element” that must be submitted to the jury and foundbeyond a reasonable doubt, unless admitted or stipulated to by the defendant. This includes allminimum mandatory sentencing.351

Upward departure under the Criminal Punishment Code for third degree felonies thatare not forcible felonies

The general presumption under the Criminal Punishment Code (CPC) is that only thoseoffenders scoring 44 or less points on the sentencing scoresheet may receive a non-state prisonsanction, 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 incarcerationup to the statutory maximum for any offense before the court for sentencing under the CPC. TheCPC has, in almost every aspect, eliminated the “upward departure” of the former determinate

345Williams v. State, 784 So. 2d 524 (Fla. 4th DCA 2001).

346Fussell v. State, 813 So. 2d 130 (Fla. 2d DCA 2002).

347See, State v. Whitehead, 472 So. 2d 730 (Fla. 1985).

348See, Roberts v. State, 923 So. 2d 578 (Fla. 5th DCA 2006).

349Goutier v. State, 692 So. 2d 978 (Fla. 2d DCA 1997).

350Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

351See, Alleyne v. United States, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013).

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guidelines sentencing schemes and replaced it with an indeterminate sentencing scheme in whichthe judge is free to sentence up to the statutory maximum without having to provide written reasonsfor doing so.

A statutory exception to indeterminate sentencing under the CPC is found in section775.082(10), Fla. Stat. Under that section, if a defendant is sentenced for an offense committed onor after July 1, 2009, which is a third-degree felony but not a forcible felony as defined in section776.08, and excluding any third-degree felony violation under chapter 810, and if the total sentencepoints pursuant to section 921.0024 are 22 points or fewer, the court must sentence the defendantto a nonstate prison sanction. However, if the court makes written findings that a nonstate prisonsanction could present a danger to the public, the court may sentence the offender to a statecorrectional 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 adownward departure are found invalid on appeal, the resentencing following remand is de novo. TheFlorida Supreme Court has, however, applied to section 775.082(10) upward departures the rule thatwhen the judge provides no written reasons for an upward departure, or the reasons provided insupport of a departure are found invalid on appeal, resentencing following remand must be to anonstate prison sanction. The rationale of the Florida Supreme Court in enunciating this rule is thatthe better policy is to require the trial court to enunciate all of the reasons for the departure in theoriginal order and to prevent after-the-fact justifications for a previously imposed departuresentence.354

352§ 775.082(10), Fla. Stat.

353Porter v. State, 110 So. 3d 962 (Fla. 4th DCA 2013), case dismissed, 137 So. 3d 1021 (Fla. 2014); Travis v. State, 724So. 2d 119, 120–21 (Fla. 1st DCA 1998) (Nonstate prison sentence would pose a danger to the community and a five-year prisonsentence was justified under Sec. 775.082(10), Fla. Stat., where defendant convicted of grand theft by check scored 14.7 points onhis Criminal Punishment Code scoresheet and had a prior criminal history comprising convictions for five felony worthless checkcharges, four misdemeanor worthless check charges, and one grand theft charge.); McCloud v. State, 55 So. 3d 643 (Fla. 5th DCA2011), citing U.S. v. Reynolds, 956 F.2d 192, 192–93 (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 influencewithin labor union); U.S. v. Parr, 399 F. Supp. 883, 888 (W.D. Tex. 1975) (“The ‘danger to … the community’ provision [in the BailReform Act] permits consideration of the defendant’s propensity to commit crime generally, even where only pecuniary and notphysical, harm might result to the community at large.”); see also U.S. v. Moss, 522 F. Supp. 1033, 1035 (E.D. Pa. 1981), aff’d, 688F.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 thanphysical.”) (“First, it is beyond dispute that the criterion of ‘danger to the community,’ which is an explicit component of the BailReform Act, is not limited to the potential for doing physical harm.”).

354Bryant v. State, 148 So. 2d 1251 (Fla. 2014).

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Proof of prior conviction

Where an enhancement of penalty or reclassification of offense requires proof of a certainprior conviction, the level of proof is beyond a reasonable doubt. The most common method ofproof is the introduction in evidence of a certified copy of the judgment for the prior offense insubstantial compliance with Fla. R. Crim. P. 3.986.355 Prior to the creation of Rule 3.986, the Statewas required to submit the “whole record” of the prior conviction to prove its existence, the “wholerecord” including the “information, the plea of the accused, the jurisdiction of the court, the verdictof the jury, and the judgment and sentence of the court.”356 In recidivist driving cases, a certifiedcopy of the defendant’s driving record may be considered as sufficient proof of prior convictions fordriving while license suspended or revoked and driving under the influence.357 Voluntary admissionsare 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 resultof a plea not reduced to a judgment in substantial compliance with Rule 3.986 (as where thejudgment does not contain the fingerprints of the defendant), or where the defendant contests theelement of identity. Where the prior judgment contains fingerprints, the State can meet its burdenof proof by having a latent print examiner take the defendant’s fingerprints, compare them with thefingerprints on the judgment, and testify as to identity. Where there are no fingerprints on thejudgment, 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, orgroup that has as one of its primary activities the commission of criminal or delinquent acts, and thatconsists 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

355See, Keith v. State, 844 So. 2d 715 (Fla. 2d DCA 2003).

356Warren 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 (2013–2014 ed.).

358Identity can be established, as one example, through the testimony of the attorney who represented the defendant at thetime 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 tothe 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.

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membership alone is not sufficient to declare a person a member of a criminal gang.360 The Statemust also demonstrate a pattern of criminal gang activity.361

As used in section 874.03, “ongoing” means that the organization was in existence duringthe 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 insuch activity, although such activity need not be the only, or even the most important activity, inwhich the criminal gang engages.363 A “criminal gang associate” means a person who: (a) admitsto criminal gang association; or (b) meets any single defining criterion for criminal gang membershipdescribed 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 isthe intent of the legislature to allow this criterion to be used to identify gang members who recruitand organize in jails, prisons, and other detention settings.

11. Has authored any communication indicating responsibility for the commission of anycrime by the criminal gang.365

360See, S.L. v. State, 708 So. 2d 1006 (Fla. 2d DCA 1998).

361Ariano 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.

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Where a single act or factual transaction satisfies the requirements of more than one of thecriteria in subsection 874.03(3), each of those criteria has thereby been satisfied for the purposes ofthe statute.

“Criminal gang-related activity” in this context means: (a) an activity committed with theintent to benefit, promote, or further the interests of a criminal gang, or for the purposes of increasinga person’s own standing or position within a criminal gang;366 (b) an activity in which theparticipants are identified as criminal gang members or criminal gang associates acting individuallyor collectively to further any criminal purpose of a criminal gang;367 (c) an activity that is identifiedas criminal gang activity by a documented reliable informant;368 or (d) an activity that is identifiedas criminal gang activity by an informant of previously untested reliability and such identificationis corroborated by independent information.369 “Electronic communication” has the meaningprovided in section 934.02 and includes, but is not limited to, photographs, video, telephonecommunications, 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 othermeans.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 personsbecause of race, religion, disability, sexual orientation, ethnicity, or national origin.371 “Terroristorganization” means any organized group engaged in or organized for the purpose of engaging interrorism as defined in section 775.30, which definition does not prevent prosecution under this lawof individuals acting alone.372

Upon a finding by the fact- finder that the defendant committed the charged offense for thepurpose of benefitting, promoting, or furthering the interests of a criminal gang, the penalty for anyfelony or misdemeanor, or any delinquent act in violation of law which would be a felony ormisdemeanor if committed by an adult, may be enhanced. Penalty enhancement affects the applicablestatutory maximum penalty only. Each of the findings required as a basis for such sentence must befound 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.

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were a misdemeanor of the first degree.374 A misdemeanor of the first degree may be punished asif it were a felony of the third degree. For purposes of sentencing under chapter 921 and determiningincentive gain time eligibility under chapter 944, such offense is ranked in Level 1 of the offenseseverity ranking chart. The criminal gang multiplier in section 921.0024 does not apply tomisdemeanors enhanced under section 874.04(1).375 A felony of the third degree may be punishedas if it were a felony of the second degree.376 A felony of the second degree may be punished as ifit were a felony of the first degree.377 A felony of the first degree may be punished as if it were a lifefelony.378 For purposes of sentencing under chapter 921 and determining incentive gain time foreligibility under chapter 944, such felony offense is ranked as provided in section 921.0022 orsection 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 penaltyenhancements 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 afelony in the courts Florida; (2) found, in the courts of Florida, to have committed a delinquent actthat 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 asa felony; (4) found to have committed a delinquent act in another state, territory, or country thatwould be a felony if committed by an adult and which was punishable by imprisonment for a termexceeding one year and such person is under 24 years of age; or (5) found guilty of an offense thatis a felony in another state, territory, or country and which was punishable by imprisonment for aterm exceeding one year, the offense is a felony of the first degree, punishable by a term of years notexceeding life or as provided in section 775.082, section 775. 083, or section 775.084.380 Thisprovision does not apply to a person convicted of a felony whose civil rights and firearm authorityhave 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.

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There are also recidivist provisions in Florida’s criminal gang laws that can affect sentencing,such as apply to gang recruitment: A person who intentionally causes, encourages, solicits, orrecruits another person to become a criminal gang member where a condition of membership orcontinued 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 aperson 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 whointentionally causes, encourages, solicits, or recruits another person under 13 years of age to becomea criminal gang member where a condition of membership or continued membership is thecommission of any crime commits a felony of the second degree, punishable as provided in section775.082, section 773.083, or section 775.084,384 except that a person who commits a second orsubsequent 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 gangmember under chapter 876, chapter 895, chapter 896, section 893.20, or any other applicableprovision of law except to the extent otherwise prohibited pursuant to a statutory or constitutionalprovision.386

Wearing a mask or hood

A given criminal offense committed by a defendant over age 16 may be reclassified if thedefendant wore a mask or hood during the commission of the crime. This reclassification schemetakes two separate crimes, the wearing of a mask or hood and the offense committed while thedefendant was wearing the mask or hood, and combines them to effect reclassification of the offensecommitted 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 yearsof 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.

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1. Enter upon, or be or appear upon any lane, walk, alley, street, road, highway, or otherpublic way in this state;387

2. Enter upon, or be, or appear upon or within the public property of any municipality orcounty of the state;388

3. Demand entrance or admission or enter or come upon or into the premises, enclosure, orhouse 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 ofanother unless such person or persons shall have first obtained from the owner or occupier of theproperty 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 thelaws or of equal privileges and immunities under the laws or for the purpose of preventing theconstituted authorities of this state or any subdivision thereof from, or hindering them in, giving orsecuring 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 anyperson because of the person’s exercise of any right secured by federal, state, or local law or tointimidate such person or any other person or any class of persons from exercising any right securedby federal, state, or local law;392

3. With the intent to intimidate, threaten, abuse, or harass any other person;393 or4. 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 sucha 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.

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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 thepurpose 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 Gasparillacelebrations and masquerade balls;397

4. Persons wearing gas masks prescribed in emergency management drills and exercises.398

The violation of sections 876.12–876.15, except as provided in section 876.16, is amisdemeanor of the second degree.399

The felony or misdemeanor degree of any criminal offense, other than a violation of sections876.12–876.15, is reclassified to the next higher degree if, while committing the offense, thedefendant was wearing a hood, mask, or other device that concealed his or her identity. In the caseof a misdemeanor of the second degree, the offense is reclassified to a misdemeanor of the firstdegree.4 0 0 In the case of a misdemeanor of the first degree, the offense is reclassified to a felony ofthe third degree. For purposes of sentencing under chapter 921 and determining incentive gain-timeeligibility 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 seconddegree.402 In the case of a felony of the second degree, the offense is reclassified to a felony of thefirst degree.403 For purposes of sentencing under chapter 921 and determining incentive gain-timeeligibility under chapter 944, a felony offense that is reclassified under section 775.0845 is rankedone level above the ranking under section 921.0012, section 921.0013, section 921.0022, or section921.0023 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.

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A defendant’s sentence cannot be reclassified under section 775.0845 without evidenceestablishing that the defendant personally wore a hood, mask, or other device that concealed his orher identity. Where the defendant did not wear a mask during the commission of the offense, theoffense cannot be reclassified on the theory of constructive or vicarious identity concealment basedon the conduct of the co-defendant or co-defendants.405 Section 775.0845 may be used to reclassifya second-degree felony to a first degree felony for purposes of habitualization, and such does notcomprise an impermissible “double enhancement.”406

Evidencing prejudice while committing offense

The penalty for any felony or misdemeanor must be reclassified as provided in section775.085(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 orphysical disability, or advanced age of the victim.407 “Mental or physical disability” means that thevictim suffers from a condition of physical or mental incapacitation due to a developmentaldisability, organic brain damage, or mental illness, and has one or more physical or mentallimitations that restrict the victim’s 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 thatthe victim (1) lacks a fixed, regular, and adequate nighttime residence, or (2) has a primary nighttimeresidence that is (a) a supervised publicly or privately operated shelter designed to provide temporaryliving accommodations or (b) a public or private place not designed for, or ordinarily used as, aregular 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 thethird degree is reclassified to a felony of the second degree.413 A felony of the second degree is

405Wright v. State, 810 So. 2d 873 (Fla. 2002); see, State v. Rodriguez, 602 So. 2d 1270 (Fla. 1992).


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.

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reclassified to a felony of the first degree.414 A felony of the first degree is reclassified to a lifefelony.415

Section 775.085(1) applies only to bias-motivated crimes.416 A “bias motivated crime” is anycrime wherein the perpetrator intentionally selects the victim because of the victim’s race, color,ethnicity, religion or national origin.417 Application of this reclassification thus requires as one ofits essential elements that the defendant intentionally selected the crime victim because of thevictim’s race, color, ancestry, ethnicity, religion, sexual orientation, national origin, mental orphysical disability, or advanced age.418 The statute requires that it is commission of the crime thatmust evidence prejudice, and the mere exhibition of prejudice during the commission of the crimeis itself insufficient to trigger this reclassification.419 As with other reclassifications, the applicationof section 775.085(1) requires that the facts supporting reclassification be contained in the chargingdocument 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 794.011must be reclassified as provided if it is charged and proven by the prosecution that, during the samecriminal transaction or episode, more than one person committed an act of sexual battery on the samevictim. Under section 794.023, a felony of the second degree is reclassified to a felony of the firstdegree,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.

416Groover v. State, 632 So. 2d 691 (Fla. 1st DCA 1994).

417State v. Stalder, 630 So. 2d 1072 (Fla. 1994).

418See, Bass v. State, 739 So. 2d 1243 (Fla. 5th DCA 1999); Richards v. State, 643 So. 2d 89 (Fla. 3d DCA 1994).

419State 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).

420Freudenberger v. State, 940 So. 2d 551 (Fla. 2d DCA 2006).

421§ 794.023(2)(a), Fla. Stat.

422§ 794.023(2)(b), Fla. Stat.

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to principals.423 It does not apply to attempts.424 It does not apply, in any event, to life felonies orcapital felonies.425 For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, a felony offense that is reclassified under section 794.023 isranked one level above the ranking under section 921.0022 or section 921.0023 of the offensecommitted.426 In order to avail itself of this enhancement, the State must specifically charge thedefendant 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 anabandoned house where they climbed through a window. Taylor was the first to climb through thewindow, and while he was doing so, the victim attempted to flee. The co-defendant stopped her andhit her with his fist, causing injury to her face. Once inside the house, Taylor held a piece of brokenglass against the victim’s throat while the co-defendant raped her. The two then reversed roles, andin the process the victim’s arms were cut. An examining physician testified that the victim's injuriesincluded a contusion to her right eye, a swollen cheek, a laceration on her neck, and multiple linearlacerations to both forearms. Taylor was found guilty of false imprisonment, sexual battery, andaiding and abetting sexual battery. The trial court scored the offense of aiding and abetting sexualbattery 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 theenhancement was an improper double enhancement because the existence of multiple perpetratorsis inherent in a charge of aiding and abetting sexual battery. The Fifth District found no merit inTaylor’s argument that the conviction for aiding and abetting sexual battery should not have beenenhanced from a second-degree felony to a first-degree felony. The Court held that, pursuant tosection 777.011, Taylor was a principal in the first degree to a violation of section 794.011 and couldbe charged, convicted, and punished as though he had perpetrated the sexual battery himself and so,

423Williams v. State, 619 So. 2d 1044 (Fla. 4th DCA 1993) (conviction for aiding and abetting sexual battery was properlyenhanced from second-degree felony to first-degree felony in case involving multiple perpetrators; defendant was principal in firstdegree to co-defendant’s sexual battery).

424Velasquez v. State, 657 So. 2d 1218 (Fla. 5th DCA 1995) (statutory enhancement for multiple perpetrators applied onlyto completed offense); Gifford v. State, 744 So. 2d 1046 (Fla. 4th DCA 1999) (sentence for attempted sexual battery could not beenhanced from third-degree felony to second-degree felony, even though perpetrated by multiple offenders, because statutoryprovision allowing enhancement did not refer to attempted sexual battery and there was no provision for enhancing third-degreefelonies).

425§ 794.023, Fla. Stat.; see also, Williams v. State, 678 So. 2d 443 (Fla. 2d DCA 1996) (sexual battery with great force wasa life felony and therefore conviction could not be enhanced under statute pertaining to multiple perpetrators).

426§ 794.023, Fla. Stat.

427Gordon v. State, 599 So. 2d 1048 (Fla. 5th DCA 1992).

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as a principal in the first degree to the co-defendant’s sexual battery, Taylor’s conviction wasproperly enhanced.428

Unlawful taking, possession, or use of law enforcement officer’s firearm

A person who, without authorization, takes a firearm from a law enforcement officer lawfullyengaged in law enforcement duties commits a felony of the third degree, punishable as provided insections 775.082, 775.083, or 775.084.429 If a person violates subsection 775.0875(1) and commitsany other crime involving the firearm taken from the law enforcement officer, such crime must bereclassified 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 eligibilityunder chapter 944, a felony offense that is reclassified under section 775.087(1)(a) is ranked onelevel above the ranking under section 921.0022 or section 921.0023 of the felony offensecommitted.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 underchapter 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 lawenforcement officer commits a misdemeanor of the first degree, punishable as provided in section775.082 or section 775.083.435


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 eitheron recidivism or the status of the victim. In some cases, minimum mandatory sentencing must alsobe imposed. This reclassification scheme includes the following:

Battery

The offense of battery occurs when a person (1) actually and intentionally touches or strikesanother person against the will of the other; or (2) intentionally causes bodily harm to anotherperson.436 Except as provided in subsection 784.03(2), a person who commits battery commits amisdemeanor 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 whocommits any second or subsequent battery commits a felony of the third degree, punishable asprovided 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 ofwhether 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 delinquencyas a predicate “conviction” to elevate a subsequent simple battery to a felony battery.439 A convictionfor lewd or lascivious battery, which can be committed without touching or striking another personagainst his or her will, does not qualify as a predicate offense, regardless of the factual circumstancesof the offense.440 While battery, aggravated battery, and felony battery are the only predicate offenseslisted in section 784.03(2), it appears a conviction for any prior offense in which battery is a lesser-included offense, such as battery on a law enforcement officer, battery on a person 65 years of ageor older, lewd or lascivious battery where the information alleges that the touching was against thewill 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.

439See, 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 offendersentence cannot be based on juvenile adjudications).

440Aldacosta v. State, 41 So. 3d 1096 (Fla. 2d DCA 2010).

441See, Barnett v. State, 45 So. 3d 963 (Fla. 3d DCA 2010).

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reclassification under this scheme.4 4 2 Note that, in cases where simple battery is a lesser-includedoffense, prosecutors should ensure that the charging document cites section 784.02(2) and allegesprior battery convictions so that the defendant has proper notice that if he or she is found guilty ofthe 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, lawenforcement explorers, law enforcement officers, public transit employees oragents, or other specified officers

Whenever any person is charged with knowingly committing an assault or battery upon a lawenforcement officer,444 a firefighter,445 an emergency medical care provider,446 a traffic accidentinvestigation officer as described in section 316.640, a nonsworn law enforcement agency employeewho is certified as an agency inspector, a blood alcohol analyst, or a breath test operator while suchemployee is in uniform and engaged in processing, testing, evaluating, analyzing, or transporting aperson who is detained or under arrest for DUI, a law enforcement explorer, a traffic infractionenforcement officer as described in section 316.640, a parking enforcement specialist as defined insection 316.640, a person licensed as a security officer as defined in section 493.6101 and wearinga uniform that bears at least one patch or emblem that is visible at all times that clearly identifies theemploying agency and that clearly identifies the person as a licensed security officer, or a securityofficer 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

442See, State v. Warren, 796 So. 2d 489 (Fla. 2001); Grimes v. State, 724 So. 2d 614 (Fla. 5th DCA 1998) (robbery canbe used as a predicate conviction for felony petit theft since, by statutory definition, robbery is a theft and petit theft is a Category1, lesser included offense of robbery); also, Bauer, Legal Developments Impacting Repeat Battery Offenders: Warren and the 2001Amendment t o Felony Bat t ery , LXXVI No. 4 Fla. B.J . 37 (Apr. 2002), found online athttp://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/Author/21866A140F13BF9D85256B870057AC04.

443See, 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 correctionalofficer, as those terms are respectively defined in section 943.10, and any county probation officer; an employee or agent of theDepartment of Corrections who supervises or provides services to inmates; an officer of t he Parole Commission; a federal lawenforcement officer as defined in section 901.1505 and law enforcement personnel of the Fish and Wildlife ConservationCommission, 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 extinguishfires; to protect life or property; or to enforce municipal, county, and state fire prevention codes, as well as any law pertaining to theprevention and control of fires. § 784.07(1)(b), Fla. Stat.

446“Emergency medical care provider” means an ambulance driver, emergency medical technician, paramedic, registerednurse, 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 medicalcare 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 bythe hospital’s emergency department or the security thereof. § 784.07(1)(a), Fla. Stat.

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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 hisor 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 thefirst degree.448

2. In the case of battery, from a misdemeanor of the first degree to a felony of the thirddegree.449

3. In the case of aggravated assault, from a felony of the third degree to a felony of thesecond degree. Notwithstanding any other provision of law, any person convicted of aggravatedassault upon a law enforcement officer must be sentenced to a minimum term of imprisonment ofthree years.450

4. In the case of aggravated battery, from a felony of the second degree to a felony of the firstdegree. Notwithstanding any other provision of law, any person convicted of aggravated battery ofa 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 thecommission of the offense, such person possessed:

1. A “firearm” or “destructive device” as those terms are defined in section 790.001, mustbe sentenced to a minimum term of imprisonment of three years.452

2. A semiautomatic firearm and its high-capacity detachable box magazine, as defined insection 775.087(3), or a machine gun as defined in section 790.001, must be sentenced to a minimumterm of imprisonment of eight years.453

Notwithstanding section 948.01, adjudication of guilt or imposition of sentence can not besuspended, 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 ersonnel,equipment maintenance personnel, or field supervisors, who are employees or agents of a transit agency as described in section812.015(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.

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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 commitmentfacility staff

Whenever a person is charged with committing an assault or aggravated assault or a batteryor aggravated battery upon a staff member of a sexually violent predators detention or commitmentfacility as defined in part V of chapter 394, while the staff member is engaged in the lawfulperformance of his or her duties and when the person committing the offense knows or has reasonto know the identity or employment of the victim, the offense for which the person is charged mustbe reclassified as follows:

1. In the case of aggravated battery, from a felony of the second degree to a felony of the firstdegree.455

2. In the case of an aggravated assault, from a felony of the third degree to a felony of thesecond degree.456



For purposes of section 784.074, a staff member of the facilities listed includes personsemployed by the Department of Children and Family Services, persons employed at facilitieslicensed by the Department of Children and Family Services, and persons employed at facilitiesoperated 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 984.03or 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.

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section 985.03, or on a staff member of a commitment facility as defined in section 985.03, commitsa felony of the third degree, punishable as provided in sections 775.082, 775.083, or 775.084. Forpurposes of section 784.075, a staff member of the facilities listed includes persons employed by theDepartment of Juvenile Justice, persons employed at facilities licensed by the Department ofJuvenile Justice, and persons employed at facilities operated under a contract with the Departmentof Juvenile Justice.460

Battery on health services personnel

A juvenile who has been committed to or detained by the Department of Juvenile Justicepursuant to a court order, who commits battery upon a person who provides health services commitsa felony of the third degree, punishable as provided in section 775.082, section 775.083, or section775.084. 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 mentalhealth services.461

Battery of facility employee by throwing, tossing, or expelling certain fluids ormaterials

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 knowto be an employee463 of such facility, to cause or attempt to cause such employee to come into contactwith blood, masticated food, regurgitated food, saliva, seminal fluid, or urine or feces, whether bythrowing, tossing, or expelling such fluid or material.464 Any person who violates paragraph784.078(3)(a) commits battery of a facility employee, a felony of the third degree, punishable asprovided in sections 775.082, 775.083, or 775.084.465

460§ 784.075, Fla. Stat.

461§ 784.076, Fla. Stat.

462As used in section 784.078, the term “facility” means a state correctional institution defined in section 944.02(6); aprivate correctional facility defined in section 944.710 or under chapter 957; a county, municipal, or regional jail or other detentionfacility of local government under chapter 950 or chapter 951; or a secure facility operated and maintained by the Department ofCorrections or the Department of Juvenile Justice. § 784.078(1), Fla. Stat.

463As used in section 784.078, the term “employee” includes any person employed by or performing contractual servicesfor 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.

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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 65years of age or older must be sentenced to a minimum term of imprisonment of three years and finednot more than $10,000 and must also be ordered by the sentencing judge to make restitution to thevictim of such offense and to perform up to 500 hours of community service work. Restitution andcommunity service work must be in addition to any fine or sentence which may be imposed and shallnot be in lieu thereof.466 Whenever a person is charged with committing an assault or aggravatedassault or a battery or aggravated battery upon a person 65 years of age or older, regardless ofwhether he or she knows or has reason to know the age of the victim, the offense for which theperson is charged shall be reclassified as follows:


2. In the case of aggravated assault, from a felony of the third degree to a felony of thesecond degree.468



Notwithstanding the provisions of section 948.01, adjudication of guilt or imposition ofsentence can not be suspended, deferred, or withheld.471

Assault or battery on specified officials or employees

Whenever a person is charged with committing an assault or aggravated assault or a batteryor 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.

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entity of the state system of public education, as defined in section 1000.04; a sports ofcial;472 anemployee or protective investigator of the Department of Children and Family Services; an employeeof a lead community-based provider and its direct service contract providers; or an employee of theDepartment of Health or its direct service contract providers, when the person committing theoffense knows or has reason to know the identity or position or employment of the victim, theoffense for which the person is charged must be reclassified as follows:





An assault, aggravated assault, battery, or aggravated battery upon a sports official must bereclassified pursuant to subsection 784.081(2) only if such offense is committed upon the sportsofficial when he or she is actively participating as a sports official in an athletic contest orimmediately following such athletic contest.477

Assault or battery by a person who is being detained in a prison, jail, or otherdetention facility upon visitor or other detainee

Whenever a person who is being detained in a prison, jail, or other detention facility ischarged with committing an assault or aggravated assault or a battery or aggravated battery upon anyvisitor to the detention facility or upon any other detainee in the detention facility, the offense forwhich the person is charged must be reclassified as follows:

472For purposes of section 784.081, the term “sports official” means any person who serves as a referee, an umpire, or alinesman, and any person who serves in a similar capacity as a sports official who may be known by another title, which sports officialis duly registered by or is a member of a local, state, regional, or national organization that is engaged in part in providing educationand 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.

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Assault or battery on code inspectors

Whenever a person is charged with committing an assault or aggravated assault or a batteryor aggravated battery upon a code inspector, as defined in section 162.04(2), while the code inspectoris engaged in the lawful performance of his or her duties and when the person committing theoffense knows or has reason to know the identity or employment of the victim, the offense for whichthe person is charged must be reclassified as follows:





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.

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Burglary across county lines

If a person who commits a burglary travels any distance with the intent to commit theburglary in a county in Florida other than the person’s county of residence, the degree of the burglarymust be reclassified to the next higher degree if the purpose of the person’s travel is to thwart lawenforcement attempts to track the items stolen in the burglary. For purposes of sentencing underchapter 921 and determining incentive gain-time eligibility under chapter 944, a burglary that isreclassified under section 843.22 is ranked one level above the ranking specified in section 921.0022or section 921.0023 for the burglary committed.486 “Burglary” in this sense means burglary asdefined 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 batteryand is not and does not become armed with a dangerous weapon or explosive is reclassified froma felony of the second degree to a felony of the first degree if the burglary is committed within acounty that is subject to a state of emergency declared by the Governor under chapter 252 after thedeclaration of emergency is made and the perpetration of the burglary is facilitated by conditionsarising from the emergency.4 88 A burglary of an unoccupied structure, unoccupied conveyance, orunoccupied authorized emergency vehicle where the defendant does not make an assault or batteryand is not and does not become armed with a dangerous weapon or explosive is reclassified froma felony of the third degree to a felony of the second degree if the burglary is committed within acounty that is subject to a state of emergency declared by the Governor under chapter 252 after thedeclaration of emergency is made and the perpetration of the burglary is facilitated by conditionsarising from the emergency.489

Theft of property valued at $5,000 or more but less than $10,000, or valued at $10,000 ormore but less than $20,000, is reclassified from a felony of the third degree to a felony of the seconddegree if the theft is committed within a county that is subject to a state of emergency declared bythe Governor under chapter 252 after the declaration of emergency is made and the perpetration ofthe 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.

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chapter 921, a felony offense that is reclassified under section 812.014(2)(c) is ranked one levelabove 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 seconddegree felony if the property stolen is emergency medical equipment taken from a facility licensedunder 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 seconddegree felony if the property stolen is law enforcement equipment taken from an authorizedemergency vehicle.492 The theft is reclassified from a felony of the second degree to a felony of thefirst degree if the theft is committed within a county that is subject to a state of emergency declaredby the Governor under chapter 252 after the declaration of emergency is made and the perpetrationof the theft is facilitated by conditions arising from the emergency. For purposes of sentencing underchapter 921, a felony offense that is reclassified under section 812.014(2)(b)4. is ranked one levelabove 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 harmfulto 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 thenext higher degree as provided in section 775.0847(3) if the defendant possesses 10 or more imagesof any form of child pornography regardless of content, and the content of at least one imagecontains 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.

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For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility underchapter 944, a felony offense that is reclassified under section 775.0847 is ranked one level abovethe ranking under section 921.0022 or section 921.0023 of the offense committed.494

Enhancement of penalty and reclassification of offense—Sexual offenses againststudents by authority figures

The felony degree of a violation of an offense listed in section 943.0435(1)(a)1.a, unless theoffense is a violation of section 794.011(4)(g) or section 810.145(8)(a)2., must be reclassified asprovided in section 775.0862 if the offense is committed by an authority figure of a school againsta student of the school.495 “Authority figure” means a person 18 years of age or older who isemployed by, volunteering at, or under contract with a school.4 9 6 “School” has the same meaningas provided in section 1003.01 and includes a private school as defined in section 1002.01, avoluntary pre-kindergarten education program as described in section 1002.53(3), early learningprograms, a public school as described in section 402.3025(1), the Florida School for the Deaf andthe Blind, the Florida Virtual School established under section 1002.37, and a K-8 Virtual Schoolestablished under section 1002.415. The term does not include facilities dedicated exclusively to theeducation of adults.497 “Student” means a person younger than 18 years of age who is enrolled at aschool.498

In the case of a felony of the third degree, the offense is reclassified to a felony of the seconddegree.49 9 In the case of a felony of the second degree, the offense is reclassified to a felony of thefirst degree.500 In the case of a felony of the first degree, the offense is reclassified to a life felony.501 For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility underchapter 944, a felony offense that is reclassified under section 776.0682 is ranked one level abovethe ranking under section 921.0022 or section 921.0023 of the offense committed.502

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.

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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, anyinstrument containing a materially false, fictitious, or fraudulent statement or representationthat purports to affect an owner’s interest in the property described in the instrument commits afelony 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 orto cause an instrument to be presented for recording in an official record.504 “Filer” means the personwho presents an instrument for recording in an official record, or causes an instrument to bepresented 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, partialrelease or satisfaction of any of the foregoing, or any other document that relates to or attempts torestrict the ownership, transfer, or encumbrance of or claim against real or personal property, or anyinterest in real or personal property.506 “Official” record means the series of instruments, regardlessof how they are maintained, which a clerk of the circuit court, or any person or entity designated bygeneral law, special law, or county charter, is required or authorized by law to record. The term alsoincludes a series of instruments pertaining to the Uniform Commercial Code filed with the Secretaryof State or with any entity under contract with the Secretary of State to maintain UniformCommercial 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 felonyof 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 subjectto 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 asprovided in sections 775.082, 775.083, or 775.084.509

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.

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2. In the case of a felony of the second degree, to a felony of the first degree, punishable asprovided in sections 775.082, 775.083, or 775.084.510

“Public officer or employee” means, but is not limited to: (1) A person elected or appointedto 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) astate or federal executive, legislative, or judicial officer, employee, or volunteer authorized toperform actions or services for any state or federal executive, legislative, or judicial office, oragency;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 personwho 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 offensewhile incarcerated in a jail or correctional institution or while participating in a pretrial diversionprogram under any form of pretrial release or bond, on probation or parole, or under any post-releasesupervision, the offense must be reclassified as follows:



If a person’s offense has been reclassified pursuant to section 817.535(4), the sentencingcourt is required to issue a written finding that the offense occurred while incarcerated in a jail orcorrectional institution and direct that a copy of the written finding and judgment of conviction beforwarded 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.

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action and forfeiture of all gain time or any early release credits accumulated up to the date of theviolation.518

If the person is convicted of violating section 817.535(2) and the owner of the propertycovered by the false instrument incurs financial loss as a result of the instrument being recorded inthe official record, including costs and attorney fees incurred in correcting, sealing, or removing thefalse instrument from the official record as described herein, the offense must be reclassified asfollows:



A person who fraudulently records a claim of lien in the official records pursuant to part Iof 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 issuean order declaring the instrument forming the basis of the conviction null and void and may enjointhe person from filing any instrument in an official record absent prior review and approval for filingby a circuit or county court judge. The sentencing court may also order the instrument forming thebasis of the conviction sealed from the official record and removed from any applicable electronicdatabase used for recording instruments in the official record.522

Any person adversely affected by an instrument filed in the official record which containsa materially false, fictitious, or fraudulent statement or representation has a civil cause of actionunder section 817.535 without regard to whether criminal charges are pursued under section817.535(2). A notice of lis pendens in accord with section 48.23, Fla. Stat. must be filed whichspecifically describes the instrument under challenge and the real or personal property affected bythe 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.

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Upon a finding that the instrument contains a materially false, fictitious, or fraudulentstatement or representation such that the instrument does not establish a legitimate property or lieninterest in favor of another person:

1. The court shall determine whether the entire instrument or certain parts thereof are nulland void ab initio. If the court finds the instrument void in its entirety, it may order the instrumentsealed from the official record and removed from any electronic database used for indexing orlocating 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 fromfiling or directing a person to file an instrument in the official records without prior review andapproval for filing by a circuit or county court judge, provided that as to third parties who may havegiven 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 anyfailure 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 damagesand punitive damages, subject to the criteria in section 768.72, to the person adversely affected bythe instrument. The court may also levy a civil penalty of $2,500 for each instrument determined tobe in violation of subsection (2).525

3. The court may grant such other relief or remedy that the court determines is just andproper 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 acertified copy of the sealed instrument to the party seeking relief under this section for use insubsequent court proceedings; in addressing or correcting adverse effects upon the person’s creditor property rights, or reporting the matter for investigation and prosecution; or in response to asubpoena 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.

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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 enforcementagency.529

If feasible, the custodian of the official record where the instrument is recorded shall recordany 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 thepublic record pursuant to this section shall be maintained in a manner in which the instrument canbe reduced to paper form.531

A government agency may provide legal representation to a public officer or employee if theinstrument at issue appears to have been filed to defraud or harass the public officer or employee inhis or her official capacity. If the public officer or employee is the prevailing party, the award ofreasonable attorney fees shall be paid to the government agency that provided the legalrepresentation.532

Section 817.535 does not apply to the procedures for sealing or expunging criminal historyrecords as provided in chapter 943.533

False reports to law enforcement authorities

Knowingly giving false information to a law enforcement officer concerning the commissionof 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 beenconvicted 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 orallyand the officer’s account of the information is corroborated by an audio recording or audio recordingin 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 officerand heard that information;534 or

2. The information the person gave to the law enforcement officer was communicated inwriting.535

Knowingly giving false information to a law enforcement officer is reclassified from a firstdegree misdemeanor to a third degree felony, punishable as provided in section 775.082, section775.083, or section 775.084, Fla. Stat., if the information concerns the alleged commission of acapital 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 thecustody or control of any animal and fails to act, which results in the cruel death, or excessive orrepeated infliction of unnecessary pain or suffering, or causes the same to be done, commitsaggravated 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 ofsection 828.12(2), Fla. Stat., where the finder of fact determines that the violation includes theknowing 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 counselingor complete an anger management treatment program.538 Any person convicted of a second orsubsequent violation of this section 828.12(2) must be required to pay a minimum mandatory fineof $5,000 and serve a minimum mandatory period of incarceration of 6 months. In addition, theperson 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 nolocontendere 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.

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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 thelowest permissible sentence under the Criminal Punishment Code calculated. If the lowestpermissible sentence is less than the mandatory minimum sentence, the mandatory minimumsentence takes precedence. If the lowest permissible sentence exceeds the mandatory minimumsentence, the requirements of the Criminal Punishment Code and any mandatory minimum penaltiesapply, subject to Apprendi considerations. Mandatory minimum sentences must be recorded on thescoresheet.540

The imposition of a mandatory minimum sentence under statutory law is a non-discretionaryduty of a sentencing court where the record reflects that the defendant qualifies for mandatoryminimum sentencing. When an oral sentence does not include the applicable mandatory minimumsentence, it is an illegal sentence and, accordingly, subject to correction.5 4 1 It does not offend doublejeopardy principles to resentence a defendant to a harsher term when the original sentence wasinvalid.542 Only the State Attorney has the discretion to waive the minimum mandatory sentence.543 The failure to call the trial court’s attention to its omission of a mandatory minimum provisionduring 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 attorneycannot grant a reduction of the minimum mandatory.545

A defendant serving a mandatory-minimum prison sentence is eligible to receive incentivegain time credit, notwithstanding the nature of his or her sentence, unless the award of such creditis 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 timeis not a form of discretionary early release. An example of a mandatory-minimum statute that doesnot preclude the award of incentive gain time is section 893.135(6), and an example of one that doesis section 775.087(2). While the award of incentive gain time is discretionary, it will not necessarily

540Fla. R. Crim. P. 3.704(d)(26).

541Dunbar v. State, 89 So. 3d 901 (Fla. 2012).

542Dunbar 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, 120–21 (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).

543See, e.g., § § 27.366 and 775.087(5), Fla. Stat. (firearms); § 893.135(4), Fla. Stat. (drug trafficking).

544State v. Vanderhoff, 14 So. 3d 1185 (Fla. 5th DCA 2009).

545Figuerreo v. State, 42 So. 3d 887 (Fla. 3d DCA 2010).

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result in a defendant’s early release prior to the service of a mandatory-minimum term ofimprisonment. This is especially true where the defendant has been sentenced to a term longer thanthe mandatory-minimum term or when the defendant’s incentive gain time is forfeited in subsequentdisciplinary proceedings.546

Minimum mandatory sentences implicate Apprendi considerations. The United StatesConstitution requires juries to find facts that trigger mandatory punishment.547

Where authorized by statute, the sentencing court can stack consecutive minimum mandatorysentences arising from a single criminal episode. Section 893.135, Fla. Stat., for example, authorizesconsecutive minimum mandatory sentences for trafficking in cocaine and conspiracy to traffic incocaine, even though these offenses may arise out of the same transaction.5 4 8 Absent specificlegislative authorization, minimum mandatory enhancement sentences arising from a single criminalepisode must run concurrently pursuant to the Florida Supreme Court’s decision in Hale v . State.549 The Second, Third and Fourth Districts have followed Hale and held that consecutive prison releaseereoffender sentences that arose from a single criminal episode were illegal.550 While consecutiveminimum 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 toimpose concurrent or consecutive sentences.551

The specific provisions of the 10-20-Life statute with regard to mandatory minimums controlover the general provisions of section 775.082 regarding statutory maximums. Thus, the trial courthas 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 seconddegree felony reclassified to a first degree felony, and the jury finds that the defendant carried afirearm, discharged it, and caused great bodily harm, the court may lawfully impose a 35-year

546Mastay v. McDonough, 928 So. 2d 512 (Fla. 1st DCA 2006).

547Harris 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).

548Kelly v. State, 964 So. 2d 135 (Fla. 2007).

549See, 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).

550Smith 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 felonyoffender statute and 10/20/life statute); Philmore v. State, 760 So. 2d 1063 (Fla. 4th DCA 2000) (prison releasee reoffender statute).

551Elozar v. State, 872 So. 2d 934 (Fla. 5th DCA 2004).

552Mendenhall v. State, 48 So. 3d 740 (Fla. 2010).

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sentence. Because the court was required to impose a mandatory minimum sentence of 25 years tolife, and 35 years is within that range, the fact that the statutory maximum is 30 years does notprohibit the longer sentence.553 If, however, the sentencing court in this same situation imposed aminimum mandatory sentence of 25 years, the court would be limited to the statutory maximum of30 years at the top end of the sentence. That is, if the court could impose a 35-year minimummandatory sentence, but not a 35-year sentence with a 25-year minimum mandatory.554 Note thatthe First District Court of Appeal, which has held that circuit courts in that district may, pursuant tothe 10-20-Life statute, impose a sentence in addition to its selected mandatory minimum sentencewithout regard to whether additional statutory authority for such an additional sentence exists,555 hascertified conflict with the Second,556 Fourth,557 and Fifth558 Districts which have held that the trialcourt may not impose a sentence in excess of 30 years for a first degree felony under the 10-20-Lifestatute when the court imposes a mandatory minimum of less than 30 years.

Various mandatory minimum sentencing requirements and conditions are found throughoutthe 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 felonies559

A defendant who has been convicted of a capital felony must be punished by death if theproceeding held to determine sentence in accordance with the provisions of section 921.141 resultsin findings by the court that such person shall be punished by death, otherwise such person must bepunished by life imprisonment and will be ineligible for parole. In the event that the death penaltyis held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, thecourt having jurisdiction over a defendant previously sentenced to death for a capital felony isrequired to cause that defendant to be brought before the court and to sentence that defendant to lifeimprisonment without possibility of parole. No sentence of death can be reduced as a result of adetermination that a method of execution is held unconstitutional under the state constitution or the

553Mendenhall v. State, 48 So. 3d 740 (Fla. 2010).

554See, Sheppard v. State, 113 So. 3d 148 (Fla. 2d DCA 2013).

555Hatten v. State, 152 So. 3d 849 (Fla. 1st DCA 2014), citing Kelly v. State, 137 So. 3d 2, 6-7 (Fla. 1st DCA 2014).

556Martinez v. State, 114 So. 3d 1119, 1120 (Fla. 2d DCA 2013); Sheppard v. State, 113 So. 3d 148, 149 (Fla. 2d DCA2013); Prater v. State, 113 So. 3d 147-48 (Fla. 2d DCA 2013).

557Levine 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).

558Wooden v. State, 42 So. 3d 837 (Fla. 5th DCA 2010); Roberts v. State, — So. 3d —, 2013 WL 6687751 (Fla. 5 th DCADec. 20, 2013); Mcleod v. State, 52 So. 3d 784 (Fla. 5th DCA 2010).

559§ 775.082(1) and (2), Fla. Stat.

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constitution of the United States.560 A defendant who has committed a life felony on or after July1, 2008, which is that defendant’s second or subsequent violation of section 800.04(5)(b) may bepunished 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, maybe punished by a term of imprisonment for life or for a term of years not less than 30; for a lifefelony 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 afterSeptember 1, 2005, which is a violation of section 800.04(5)(b), for a term of imprisonment for lifeor by imprisonment for a term of years not exceeding life imprisonment; and for a life felonycommitted on or after September 1, 2005, which is a violation of section 800.04(5)(b), by a term ofimprisonment for life, or a split sentence that is a term of not less than 25 years’ imprisonment andnot exceeding life imprisonment, followed by probation or community control for the remainder ofthe person’s 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 forsentencing, as follows: for a felony punishable by life, by a term of imprisonment for life; for afelony 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 ofimprisonment 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 orconstruction 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.

563Rochester v. State, 140 So. 3d 973 (Fla. 2014).

564§ 775.082(9), Fla. Stat.

565§ 794.0115(2)(e) and (6), Fla. Stat.

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under section 794.0115 must be sentenced to a mandatory minimum term of 25 years imprisonmentup to, and including, life imprisonment. If the offense described in this subsection was committedon or after October 1, 2014, a person who qualifies as a dangerous sexual felony offender pursuantto subsection 794.0115(2) must be sentenced to a mandatory minimum term of 50 yearsimprisonment up to, and including, life imprisonment.566 If the mandatory minimum term ofimprisonment imposed under that section exceeds the maximum sentence authorized under section775.082, section 775.084, or chapter 921, the mandatory minimum term of imprisonment undersection 794.0115 must be imposed. If the mandatory minimum term of imprisonment under section794.0115 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 imprisonmentunder 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 prisonsentence 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 thepossession, discharge, or infliction of great bodily injury or death through such discharge of a firearmor 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 penaltiesfor drug possession and trafficking offenses, the relevant portions of which are summarized asfollows:

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 violatesthis 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.

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1. A controlled substance named or described in section 893.03(1)(a), (1)(b), (1)(d), (2)(a),(2)(b), or (2)(c)4 commits a felony of the second degree, punishable as provided in section 775.082,section 775.083, or section 775.084.570

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 misdemeanorof 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 ofany substance named or described in section 893.03(1)(a) or (1)(b), or any combination thereof, orany mixture containing any such substance. A person who violates section 893.13(1)9b) commitsa felony of the first degree, punishable as provided in section 775.082, section 775.083, or section775.084.573

Except as authorized by chapter 893, a person may not sell, manufacture, or deliver, orpossess with intent to sell, manufacture, or deliver, a controlled substance in, on, or within 1,000 feetof the real property comprising a child care facility as defined in section 402.302 or a public orprivate elementary, middle, or secondary school between the hours of 6 a.m. and 12 midnight, or atany 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), theterm “community center” means a facility operated by a nonprofit community-based organizationfor the provision of recreational, social, or educational services to the public.574 A person whoviolates section 893.13(1)(c) with respect to:

1. A controlled substance named or described in section 893.03(1)(a), (1)(b), (1)(d), (2)(a),(2)(b), or (2)(c)4. commits a felony of the first degree, punishable as provided in section 775.082,section 775.083, or section 775.084. The defendant must be sentenced to a minimum term of

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.

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imprisonment of 3 calendar years unless the offense was committed within 1,000 feet of the realproperty comprising a child care facility as defined in section 402.302.575

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 seconddegree, 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, mustbe sentenced to pay a $500 fine and to serve 100 hours of public service in addition to any otherpenalty prescribed by law.577

Section 893.13(1)(c) does not apply to a child care facility unless the owner or operator ofthe facility posts a sign that is not less than 2 square feet in size with a word legend identifying thefacility as a licensed child care facility and that is posted on the property of the child care facility ina conspicuous place where the sign is reasonably visible to the public.578

Except as authorized by chapter 893, a person may not sell, manufacture, or deliver, orpossess with intent to sell, manufacture, or deliver, a controlled substance in, on, or within 1,000 feetof the real property comprising a public or private college, university, or other postsecondaryeducational institution.579 A person who violates section 893.13(1)(d) with respect to:

1. A controlled substance named or described in section 893.03(1)(a), (1)(b), (1)(d), (2)(a),(2)(b), or (2)(c)4., commits a felony of the first degree, punishable as provided in section 775.082,section 775.083, or section 775.084.580


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



Except as authorized by chapter 893, a person may not sell, manufacture, or deliver, orpossess 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 organizationregularly conducts religious services or within 1,000 feet of a convenience business as defined insection 812.171.583 A person who violates section 893.13(1)(e) with respect to:




Except as authorized by chapter 893, a person may not sell, manufacture, or deliver, orpossess with intent to sell, manufacture, or deliver, a controlled substance in, on, or within 1,000 feetof 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 insection 421.03(12), of a public corporation created as a housing authority pursuant to part I ofchapter 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


1. A controlled substance named or described in section 893.03(1)(a), (1)(b), (1)(d), (2)(a),(2)(b), or (2)(c)4. commits a felony of the first degree, punishable as provided in section 775.082,section 775.083, or section 775.084.588



Except as authorized by chapter 893, a person may not manufacture methamphetamine orphencyclidine, or possess any listed chemical as defined in section 893.033 in violation of section893.149 and with intent to manufacture methamphetamine or phencyclidine.591 If a person violatessection 893.13(1)(g) and:

1. The commission or attempted commission of the crime occurs in a structure orconveyance where any child younger than 16 years of age is present, the person commits a felonyof 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 calendaryears.592

2. The commission of the crime causes any child younger than 16 years of age to suffer greatbodily harm, the person commits a felony of the first degree, punishable as provided in section775.082, section 775.083, or section 775.084. In addition, the defendant must be sentenced to aminimum term of imprisonment of 10 calendar years.593

Except as authorized by chapter 893.13, a person may not sell, manufacture, or deliver, orpossess with intent to sell, manufacture, or deliver, a controlled substance in, on, or within 1,000 feet

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 Aperson who violates this paragraph with respect to:

1. A controlled substance named or described in section 893.03(1)(a), (1)(b), (1)(d), (2)(a),(2)(b), or (2)(c)4. commits a felony of the first degree, punishable as provided in section 775.082,section 775.083, or section 775.084.595


Except as authorized by chapters 893 and 499, a person may not to purchase, or possess withintent to purchase, a controlled substance.597 A person who violates section 893.13(2)(a) with respectto:

1. A controlled substance named or described in section 893.03(1)(a), (1)(b), (1)(d), (2)(a),(2)(b), or (2)(c)4., commits a felony of the second degree, punishable as provided in section 775.082,section 775.083, or section 775.084.598



Except as provided in chapter 893, a person may not purchase more than 10 grams of anysubstance 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 felonyof 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 inchapter 893, commits a misdemeanor of the first degree, punishable as provided in section 775.082or section 775.083. As used in section 893.13(3), the term “cannabis” does not include the resinextracted 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 anycontrolled substance to a person younger than 18 years of age, use or hire a person younger than 18years of age as an agent or employee in the sale or delivery of such a substance, or to use such personto assist in avoiding detection or apprehension for a violation of this chapter.6 0 3 A person whoviolates section 893.13(4) with respect to:



Imposition of sentence may not be suspended or deferred, and the person so convicted maynot be placed on probation.606

A person may not bring into Florida any controlled substance unless the possession of suchcontrolled substance is authorized by chapter 893 or unless such person is licensed to do so by theappropriate 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


1. A controlled substance named or described in section 893.03(1)(a), (1)(b), (1)(d), (2)(a),(2)(b), or (2)(c)4 commits a felony of the second degree, punishable as provided in section 775.082,section 775.083, or section 775.084.608



A person may not be in actual or constructive possession of a controlled substance unlesssuch controlled substance was lawfully obtained from a practitioner or pursuant to a validprescription or order of a practitioner while acting in the course of his or her professional practiceor to be in actual or constructive possession of a controlled substance except as otherwise authorizedby chapter 893. A person who violates section 893.13(6)(a) commits a felony of the third degree,punishable as provided in section 775.082, section 775.083, or section 775.084.611

If the offense is the possession of 20 grams or less of cannabis, as defined in chapter 893, or3 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 providedin section 775.082 or section 775.083. As used in section 893.13(6)(b), the term “cannabis” doesnot 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 section893.03(1)(c)46.-50., 114.-142., 151.-159., or 166.-173., does not include the substance in a powderedform.612

Except as provided in chapter 993.135, a person may not possess more than 10 grams of anysubstance named or described in section 893.03(1)(a) or (1)(b), or any combination thereof, or anymixture 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 section775.084.613

Drug Trafficking

Except as authorized in Chapters 893 or 499 and notwithstanding the provisions of section893.13:

A person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, orwho is knowingly in actual or constructive possession of, in excess of 25 pounds of cannabis, or 300or more cannabis plants, commits a felony of the first degree, which felony is known as “traffickingin cannabis,” punishable as provided in section 775.082, section 775.083, or section 775.084. If thequantity 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 minimumterm 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 minimumterm 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 besentenced 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 forin section 893.135(1)(a).616

A person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, orwho is knowingly in actual or constructive possession of, 28 grams or more of cocaine, as describedin section 893.03(2)(a)4., or of any mixture containing cocaine, but less than 150 kilograms ofcocaine 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 section775.084. 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 amandatory minimum term of imprisonment of three years, and the defendant must be ordered to paya fine of $50,000.617

2. Is 200 grams or more, but less than 400 grams, such person must be sentenced to amandatory minimum term of imprisonment of seven years, and the defendant must be ordered to paya fine of $100,000.618

3. Is 400 grams or more, but less than 150 kilograms, such person must be sentenced to amandatory 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, asdescribed in section 893.03(2)(a)4., commits the first degree felony of trafficking in cocaine. Aperson who has been convicted of the first degree felony of trafficking in cocaine under section893.135(1)(b)2. must be punished by life imprisonment and is ineligible for any form ofdiscretionary early release except pardon or executive clemency or conditional medical release undersection 947.149. However, if the court determines that, in addition to committing any act specifiedin section 893.135(1)(b)2. the person intentionally killed an individual or counseled, commanded,induced, procured, or caused the intentional killing of an individual and such killing was the result;or the person’s conduct in committing that act led to a natural, though not inevitable, lethal result,such person commits the capital felony of trafficking in cocaine, punishable as provided in sections775.082 and 921.142. Any person sentenced for a capital felony under section 893.135(1)(b)2. mustbe 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 describedin section 893.03(2)(a)4., and who knows that the probable result of such importation would be thedeath of any person, commits capital importation of cocaine, a capital felony punishable as providedin sections 775.082 and 921.142. Any person sentenced for a capital felony under section893.135(1)(b)3., must also be sentenced to pay the maximum fine provided under section893.135(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


A person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, orwho 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 anymixture 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 quantityinvolved:

1. Is 4 grams or more, but less than 14 grams, such person must be sentenced to a mandatoryminimum term of imprisonment of three years and must be ordered to pay a fine of $50,000.622

2. Is 14 grams or more, but less than 28 grams, such person must be sentenced to amandatory minimum term of imprisonment of 15 years and must be ordered to pay a fine of$100,000.623

3. Is 28 grams or more, but less than 30 kilograms, such person must be sentenced to amandatory minimum term of imprisonment of 25 years and must be ordered to pay a fine of$500,000.624

A person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, orwho is knowingly in actual or constructive possession of, 14 grams or more of hydrocodone, or anysalt, derivative, isomer, or salt of an isomer thereof, or 14 grams or more of any mixture containingany such substance, commits a felony of the first degree, which felony is known as “trafficking inhydrocodone,” punishable as provided in section 775.082, section 775.083, or section 775.084. Ifthe quantity involved:


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





A person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, orwho 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 anysuch substance, commits a felony of the first degree, which felony is known as “trafficking inoxycodone,” punishable as provided in section 775.082, section 775.083, or section 775.084. If thequantity involved:

1. Is 7 grams or more, but less than 14 grams, such person must be sentenced to a mandatoryminimum term of imprisonment of 3 years and must be ordered to pay a fine of $50,000.629



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



A person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, orwho 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 isomerthereof, including heroin, as described in section 893.03(1)(b), (2)(a), (3)(c)3., or (3)(c)4., or 30kilograms or more of any mixture containing any such substance, commits the first degree felony oftrafficking in illegal drugs. A person who has been convicted of the first degree felony of traffickingin illegal drugs under this subparagraph must be punished by life imprisonment and is ineligible forany form of discretionary early release except pardon or executive clemency or conditional medicalrelease under section 947.149.633 However, if the court determines that, in addition to committingany 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 person’s conduct in committing that act led to a natural, though not inevitable, lethalresult, such person commits the capital felony of trafficking in illegal drugs, punishable as providedin sections 775.082 and 921.142. A person sentenced for a capital felony under section893.135(1)(c)2. must be sentenced to pay the maximum fine provided under section893.135(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 isomerthereof, including heroin, as described in section 893.03(1)(b), (2)(a), (3)(c)3., or (3)(c)4., or 60kilograms or more of any mixture containing any such substance, and who knows that the probableresult of such importation would be the death of any person, commits capital importation of illegaldrugs, a capital felony punishable as provided in sections 775.082 and 921.142. Any personsentenced for a capital felony under this paragraph must also be sentenced to pay the maximum fineprovided under section 893.135(1)(c)1.635

A person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, orwho 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 thefirst degree, which felony is be known as “trafficking in phencyclidine,” punishable as provided insection 775.082, section 775.083, or section 775.084. If the quantity involved:



3. Is 400 grams or more, such person must be sentenced to a mandatory minimum term ofimprisonment 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 anymixture containing phencyclidine, as described in section 893.03(2)(b), and who knows that theprobable result of such importation would be the death of any person commits capital importationof phencyclidine, a capital felony punishable as provided in sections 775.082 and 921.142. A personsentenced for a capital felony under this paragraph must also be sentenced to pay the maximum fineprovided under subparagraph 1.639

A person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, orwho is knowingly in actual or constructive possession of, 200 grams or more of methaqualone or ofany mixture containing methaqualone, as described in section 893.03(1)(d), commits a felony of thefirst degree, which felony is known as “trafficking in methaqualone,” punishable as provided insection 775.082, section 775.083, or section 775.084. If the quantity involved:

1. Is 200 grams or more, but less than five kilograms, such person must be sentenced to amandatory minimum term of imprisonment of three years, and the defendant must be ordered to paya 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 amandatory minimum term of imprisonment of seven years, and the defendant must be ordered to paya fine of $100,000.641

3. Is 25 kilograms or more, such person must be sentenced to a mandatory minimum termof 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 anymixture containing methaqualone, as described in section 893.03(1)(d), and who knows that theprobable result of such importation would be the death of any person commits capital importationof methaqualone, a capital felony punishable as provided in sections 775.082 and 921.142. Anyperson sentenced for a capital felony under this paragraph must also be sentenced to pay themaximum fine provided under section 893.135(1)(e)1.643

A person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, orwho is knowingly in actual or constructive possession of, 14 grams or more of amphetamine, asdescribed in section 893.03(2)(c)2., or methamphetamine, as described in section 893.03(2)(c)4., orof any mixture containing amphetamine or methamphetamine, or phenylacetone, phenylacetic acid,pseudoephedrine, or ephedrine in conjunction with other chemicals and equipment utilized in themanufacture of amphetamine or methamphetamine, commits a felony of the first degree, whichfelony is known as “trafficking in amphetamine,” punishable as provided in section 775.082, section775.083, or section 775.084. If the quantity involved:



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


3. Is 200 grams or more, such person must be sentenced to a mandatory minimum term ofimprisonment 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 ofamphetamine, as described in section 893.03(2)(c)2., or methamphetamine, as described in section893.03(2)(c)4., or of any mixture containing amphetamine or methamphetamine, or phenylacetone,phenylacetic acid, pseudoephedrine, or ephedrine in conjunction with other chemicals and equipmentused in the manufacture of amphetamine or methamphetamine, and who knows that the probableresult of such manufacture or importation would be the death of any person commits capitalmanufacture or importation of amphetamine, a capital felony punishable as provided in sections775.082 and 921.142. Any person sentenced for a capital felony under section 893.135(1)(f)2. mustalso be sentenced to pay the maximum fine provided under section 893.135(1)(f)1.647

A person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, orwho is knowingly in actual or constructive possession of, four grams or more of flunitrazepam orany mixture containing flunitrazepam as described in section 893.03(1)(a) commits a felony of thefirst degree, which felony is known as “trafficking in flunitrazepam,” punishable as provided insection 775.082, section 775.083, or section 775.084. If the quantity involved:

1. Is four grams or more but less than 14 grams, such person must be sentenced to amandatory minimum term of imprisonment of three years, and the defendant must be ordered to paya fine of $50,000.648

2. Is 14 grams or more but less than 28 grams, such person must be sentenced to a mandatoryminimum 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 amandatory 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 orwho is knowingly in actual or constructive possession of 30 kilograms or more of flunitrazepam orany 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 felonyof trafficking in flunitrazepam under section 893.135(1)(g)2. must be punished by life imprisonmentand is ineligible for any form of discretionary early release except pardon or executive clemency orconditional medical release under section 947.149. However, if the court determines that, in additionto 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 person’s conduct in committing that act led to a natural, though not inevitable, lethalresult, such person commits the capital felony of trafficking in flunitrazepam, punishable as providedin sections 775.082 and 921.142.

Any person sentenced for a capital felony under section 893.135(1)(g)2. must also be sentenced topay the maximum fine provided under section 893.135(1)(g)1.651

A person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, orwho is knowingly in actual or constructive possession of, one kilogram or more ofgammahydroxybutyric acid (GHB), as described in section 893.03(1)(d), or any mixture containinggamma-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 toa mandatory minimum term of imprisonment of three years, and the defendant must be ordered topay a fine of $50,000.652

2. Is five kilograms or more but less than 10 kilograms, such person must be sentenced toa mandatory minimum term of imprisonment of seven years, and the defendant must be ordered topay 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 ofgamma-hydroxybutyric acid (GHB), as described in section 893.03(1)(d), or any mixture containinggamma-hydroxybutyric acid (GHB), and who knows that the probable result of such manufactureor importation would be the death of any person commits capital manufacture or importation ofgamma-hydroxybutyric acid (GHB), a capital felony punishable as provided in sections 775.082 and921.142. Any person sentenced for a capital felony under section 893.135(1)(h)2 must also besentenced to pay the maximum fine provided under section 893.135(1)(h)1.655

A person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, orwho is knowingly in actual or constructive possession of, one kilogram or more ofgammabutyrolactone (GBL), as described in section 893.03(1)(d), or any mixture containing gamma-butyrolactone (GBL), commits a felony of the first degree, which felony is known as “trafficking ingamma-butyrolactone (GBL),” punishable as provided in section 775.082, section 775.083, orsection 775.084. If the quantity involved:

1. Is one kilogram or more but less than five kilograms, such person must be sentenced toa mandatory minimum term of imprisonment of three years, and the defendant must be ordered topay a fine of $50,000.656

2. Is five kilograms or more but less than 10 kilograms, such person must be sentenced toa mandatory minimum term of imprisonment of seven years, and the defendant must be ordered topay a fine of $100,000.657


A person who knowingly manufactures or brings into the state 150 kilograms or more ofgamma-butyrolactone (GBL), as described in section 893.03(1)(d), or any mixture containinggamma-butyrolactone (GBL), and who knows that the probable result of such manufacture orimportation would be the death of any person commits capital manufacture or importation ofgamma-butyrolactone (GBL), a capital felony punishable as provided in sections 775.082 and921.142. Any person sentenced for a capital felony under section 893.135(1)(i)2. must also besentenced 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.

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A person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, orwho is knowingly in actual or constructive possession of, one kilogram or more of 1,4-Butanediolas described in section 893.03(1)(d), or of any mixture containing 1,4-Butanediol, commits a felonyof the first degree, which felony is known as “trafficking in 1,4-Butanediol,” punishable as providedin 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 toa mandatory minimum term of imprisonment of three years, and the defendant must be ordered topay a fine of $50,000.660

2. Is five kilograms or more, but less than 10 kilograms, such person must be sentenced toa mandatory minimum term of imprisonment of seven years, and the defendant must be ordered topay a fine of $100,000.661


A person who knowingly manufactures or brings into Florida 150 kilograms or more of1,4-Butanediol as described in section 893.03(1)(d), or any mixture containing 1,4-Butanediol, and whoknows that the probable result of such manufacture or importation would be the death of any personcommits capital manufacture or importation of 1,4-Butanediol, a capital felony punishable asprovided in sections 775.082 and 921.142. A person sentenced for a capital felony under section893.135(1)(j)2. must also be sentenced to pay the maximum fine provided under section893.135(1)(j)1.663

A person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, orwho is knowingly in actual or constructive possession of, 10 grams or more of any of the followingsubstances described in section 893.03(1)(c): 3,4-Methylenedioxymethamphetamine (MDMA); 4-Bromo-2,5-dimethoxyamphetamine; 4-Bromo- 2 ,5 - d imethoxyphenethylamine; 2,5-Dimethoxyamphetamine; 2,5-Dimethoxy-4-ethylamphetamine (DOET); N-ethylamphetamine; N-Hydroxy-3,4-methylenedioxyamphetamine; 5-Methoxy-3,4-methylenedioxyamphetamine; 4-methoxyamphetamine; 4-methoxymethamphetamine; 4-Methyl-2,5- dimethoxyamphetamine; 3,4-Methylenedioxy-Nethylamphetamine; 3,4-Methylenedioxyamphetamine; N,Ndimethylamphetamine;o r 3 , 4 , 5 - Trimethoxyamphe tamine , 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.

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or isomers thereto or in any combination of or any mixture containing any such substance listed insection 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, orsection 775.084.664 If the quantity involved:

1. Is 10 grams or more but less than 200 grams, such person must be sentenced to amandatory minimum term of imprisonment of three years, and must be ordered to pay a fine of$50,000.665

2. Is 200 grams or more, but less than 400 grams, such person must be sentenced to amandatory minimum term of imprisonment of seven years, and must be ordered to pay a fine of$100,000.666

3. Is 400 grams or more, such person must be sentenced to a mandatory minimum term ofimprisonment 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 anyof the following substances described in section 893.03(1)(c): 3,4-Methylenedioxymethamphetamine(MDMA); 4-Bromo-2,5-dimethoxyamphetamine; 4-Bromo-2,5- dimethoxyphenethylamine; 2,5-Dimethoxyamphetamine; 2,5- Dimethoxy-4-ethylamphetamine (DOET); N-ethylamphetamine; N-Hydroxy-3,4-methylenedioxyamphetamine; 5-Methoxy-3,4-methylenedioxyamphetamine; 4-methoxyamphetamine; 4-methoxymethamphetamine; 4-Methyl-2,5-dimethoxyamphetamine; 3,4-Methylenedioxy-Nethylamphetamine; 3,4-Methylenedioxyamphetamine; N,Ndimethylamphetamine;or 3,4,5-Trimethoxyamphe tamine , 3 , 4 - Methylened ioxymethca thinone; q. 3,4-Methylenedioxypyrovalerone (MDPV); or r. Methylmethcathinone individually or analogs theretoor isomers thereto or in any combination of or any mixture containing any such substance listed insection 893.135(1)(k)1.a.-r., and who knows that the probable result of such manufacture orimportation would be the death of any person commits capital manufacture or importation ofPhenethylamines, a capital felony punishable as provided in sections 775.082 and 921.142. Anyperson sentenced for a capital felony under section 893.135(1)(k)2. must also be sentenced to paythe 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.

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A person who knowingly sells, purchases, manufactures, delivers, or brings into Florida, orwho is knowingly in actual or constructive possession of, one gram or more of lysergic aciddiethylamide (LSD) as described in section 893.03(1)(c), or of any mixture containing lysergic aciddiethylamide (LSD), commits a felony of the first degree, which felony is known as “trafficking inlysergic acid diethylamide (LSD),” punishable as provided in section 775.082, section 775.083, orsection 775.084. If the quantity involved:

1. Is one gram or more, but less than five grams, such person must be sentenced to amandatory minimum term of imprisonment of three years, and the defendant must be ordered to paya fine of $50,000.669

2. Is five grams or more, but less than seven grams, such person must be sentenced to amandatory minimum term of imprisonment of seven years, and the defendant must be ordered to paya fine of $100,000.670

3. Is seven grams or more, such person must be sentenced to a mandatory minimum termof imprisonment of 15 calendar years and pay a fine of $500,000.671

A person who knowingly manufactures or brings into Florida seven grams or more of lysergicacid diethylamide (LSD) as described in section 893.03(1)(c), or any mixture containing lysergic aciddiethylamide (LSD), and who knows that the probable result of such manufacture or importationwould be the death of any person commits capital manufacture or importation of lysergic aciddiethylamide (LSD), a capital felony punishable as provided in sections 775.082 and 921.142. Anyperson sentenced for a capital felony under section 893.135(1)(l)2. must also be sentenced to pay themaximum fine provided under section 893.135(1)(l)1.672

Notwithstanding the provisions of section 948.01, with respect to any person who is foundto have violated section 893.135, adjudication of guilt or imposition of sentence cannot besuspended, deferred, or withheld, nor is such person be eligible for parole prior to serving themandatory minimum term of imprisonment prescribed by section 893.135. A person sentenced toa mandatory minimum term of imprisonment under section 893.135 is not eligible for any form ofdiscretionary early release, except pardon or executive clemency or conditional medical release undersection 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.

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A person who agrees, conspires, combines, or confederates with another person to commitany act prohibited by section 893.135(1) commits a felony of the first degree and is punishable asif he or she had actually committed such prohibited act. Nothing in section 893.155(5) can beconstrued to prohibit separate convictions and sentences for a violation of section 893.135(5) andany violation of section 893.135(1).674

To ensure that the judiciary adheres to the legislative intent behind the trafficking statute, theFlorida legislature has amended the statute to add a separate paragraph stating its findings that theopinion of the Florida Supreme Court in Hayes v. State675 does not correctly construe legislativeintent as regards section 893.135, and that the district court opinions in State v. Hayes676 and Statev. Baxley677 correctly construe legislative intent.678

Note that one factor that had been a consideration in enhanced sentencing, depending on thedate of offense and venue in Florida, was the “Taylor Window.” Taylor v. State679 held that chapter99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentencesfor certain drug offenses under section 893.135, Fla. Stat., is unconstitutional because it violates thesingle subject rule of the Florida Constitution. In 2002, the legislature reenacted the provisionsoriginally contained in chapter 99-188. However, in Green v. State,680 the Second District held thatthe reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactivelybecause 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 onJuly 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 Appeal’s

674§ 893.135(5), Fla. Stat.

675Hayes v. State, 750 So. 2d 1 (Fla. 1999).

676State v. Hayes, 720 So. 2d 1095 (Fla. 4th DCA 1998), decision quashed, 750 So. 2d 1 (Fla. 1999).

677State 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.

679Taylor 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, 120–21 (Fla. 1st DCA 1998).

680Green v. State, 839 So. 2d 748 (Fla. 2d DCA 2003), decision quashed, 887 So. 2d 1089 (Fla. 2004); Travis v. State, 724So. 2d 119, 120–21 (Fla. 1st DCA 1998).

681See, Green v. State, 839 So. 2d 748, 750 n.1 (Fla. 2d DCA 2003), decision quashed, 887 So. 2d 1089 (Fla. 2004).

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decisions in Hernandez-Molina v. State;682 Watson v. State;683 and State v. Franklin,684 and Greenconflicted with the Fourth District’s decision in Hersey v. State.685 The matter was finally resolvedwith the issuance of the Florida Supreme Court’s opinion in State v. Green,6 8 6 which concluded thatChapter 99-188 did not violate the single subject clause of the Florida Constitution and approved theThird District’s decision in Franklin and the Fourth District’s opinion in Hernandez-Molina,quashed the Second District’s opinion in Green, and disapproved the Second District’s opinion inTaylor.

Manufacture of drugs in presence of children

Mandatory minimum prison sentences of five and 10 years apply to convictions for themanufacture or possession of methamphetamine or phencyclidine in a structure or conveyance whereany child under the age of 16 years is present, or where such manufacture or possession causes anychild 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 isconvicted of DUI manslaughter.688

Fleeing or attempting to elude law enforcement

A defendant convicted of fleeing or attempting to elude law enforcement in violation ofsection 316.1935, Fla. Stat., is subject to progressive punishment, including minimum mandatorysentencing and loss of driver license, depending on the aggravation of the case. The progression ofpunishment is as follows:

682Hernandez-Molina v. State, 860 So. 2d 483 (Fla. 4th DCA 2003).

683Watson v. State, 842 So. 2d 275 (Fla. 1st DCA 2003).

684State v. Franklin, 836 So. 2d 1112 (Fla. 3d DCA 2003), decision approved, 887 So. 2d 1063 (Fla. 2004).

685Hersey v. State, 831 So. 2d 679 (Fla. 5th DCA 2002), on reh’g, (Sept. 20, 2002) and decision disapproved of, 908 So.2d 1052 (Fla. 2005); Travis v. State, 724 So. 2d 119, 120–21 (Fla. 1st DCA 1998); see also, Hernandez-Molina v. State, 860 So. 2d483 (Fla. 4th DCA 2003) (ch. 99-188 may not be retroactively applied); Jones v. State, 872 So. 2d 938 (Fla. 5th DCA 2004), decisionquashed, 908 So. 2d 1054 (Fla. 2005) and opinion withdrawn, 944 So. 2d 1008 (Fla. 5th DCA 2005); Travis v. State, 724 So. 2d 119,120–21 (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).

686State v. Green, 887 So. 2d 1089 (Fla. 2004).

687§ 893.13(1)(g), Fla. Stat.

688§ 316.193(3)(c)3, Fla. Stat.

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It is unlawful for the operator of any vehicle, having knowledge that he or she has beenordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or failto stop the vehicle in compliance with such order or, having stopped in knowing compliance withsuch order, willfully to flee in an attempt to elude the officer, and a person who violates section316.1935(1) commits a felony of the third degree, punishable as provided in section 775.082, section775.083, or section 775.084.689

Any person who willfully flees or attempts to elude a law enforcement officer in anauthorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markingsprominently displayed on the vehicle, with siren and lights activated commits a felony of the thirddegree, punishable as provided in section 775.082, section 775.083, or section 775.084.690

Any person who willfully flees or attempts to elude a law enforcement officer in anauthorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markingsprominently displayed on the vehicle, with siren and lights activated, and during the course of thefleeing or attempted eluding:

1. Drives at high speed, or in any manner which demonstrates a wanton disregard for thesafety of persons or property, commits a felony of the second degree, punishable as provided insection 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 thesafety of persons or property, and causes serious bodily injury or death to another person, includingany law enforcement officer involved in pursuing or otherwise attempting to effect a stop of theperson’s 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 shallsentence any person convicted of committing the offense described in section 316.1935(3)(b) to amandatory minimum sentence of 3 years imprisonment. Nothing in section 316.1935(3)(b) canprevent 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 acrash in violation of section 316.027 or section 316.061, having knowledge of an order to stop bya duly authorized law enforcement officer, willfully refuses or fails to stop in compliance with suchan order, or having stopped in knowing compliance with such order, willfully flees in an attempt toelude 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.

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1. Causes injury to another person or causes damage to any property belonging to anotherperson, commits aggravated fleeing or eluding, a felony of the second degree, punishable as providedin section 775.082, section 775.083, or section 775.084.693

2. Causes serious bodily injury or death to another person, including any law enforcementofficer involved in pursuing or otherwise attempting to effect a stop of the person’s vehicle, commitsaggravated fleeing or eluding with serious bodily injury or death, a felony of the first degree,punishable as provided in section 775.082, section 775.083, or section 775.084.694

The felony of aggravated fleeing or eluding and the felony of aggravated fleeing or eludingwith 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 thescene of a crash, which the person had been in the course of committing or attempting to commitwhen the order to stop was given. Notwithstanding any other provision of law, the court mustsentence any person convicted of committing aggravated fleeing or eluding with serious bodily injuryor death to a mandatory minimum sentence of three years imprisonment. Nothing in section316.1935(4) prevents a court from imposing a greater sentence of incarceration as authorized bylaw.695

The court is required to revoke, for a period not less than 1 year nor exceeding 5 years, thedriver 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 ofguilt or imposition of sentence for any violation of section 316.1935. A person convicted andsentenced to a mandatory minimum term of incarceration under section 316.1935(3)(b) or (4)(b) isnot 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, priorto 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.

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932.701-932.704. Any vehicle not required to be titled under the laws of this state is presumed tobe 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 thedriver of a vehicle involved in a crash on public or private property that results in the death of anyperson, who willfully does not stop the vehicle and remain at the scene of the crash, or as closethereto as possible, and remain at the scene until he or she has fulfilled the requirements of section316.062.699 Conviction for this offense also carries a mandatory three-year driver licenserevocation.700 For purposes of sentencing under chapter 921 and determining incentive gain-timeeligibility under chapter 944, the offense is ranked one level above the ranking specified in section921.0022 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 workupon utility facilities along a highway, or engaged in the provision of emergency services within theright-of-way;

2. A person operating a bicycle, motorcycle, scooter, or moped lawfully on the roadway;3. A person riding an animal; or4. 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; ore. A wheelchair.702

The defendant may move to depart from the mandatory minimum term of imprisonmentprescribed in section 316.027(2)(c) unless the violation was committed while the defendant wasdriving 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.

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only if it finds that a factor, consideration, or circumstance clearly demonstrates that imposing amandatory minimum term of imprisonment would constitute or result in an injustice. The court isrequired 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 ofthe 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, andchapter 921, a defendant must be sentenced to life imprisonment without eligibility for release uponfindings 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) anda death sentence was not imposed; murder in the second or third degree in violation of section782.04(2), (3), or (4); attempted murder in the first or second degree in violation of section782.04(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 enforcementofficer, or auxiliary law enforcement officer, as those terms are defined in section 943.10, engagedin 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 theoffense, applies to convictions for aggravated assault or aggravated battery upon a person 65 yearsof 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.

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Domestic violence

There is a minimum term of one year’s 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, andthe defendant has intentionally caused bodily harm to another person, the court must order thedefendant to serve a minimum of five days in the county jail as part of the sentence imposed, unlessthe court sentences the defendant to a nonsuspended period of incarceration in a state correctionalfacility. 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 designateda prison releasee reoffender (PRR). A “prison releasee reoffender” is defined in section775.082(9)(a)1., Fla. Stat., the Prison Releasee Reoffender Punishment Act (PRRPA), as anydefendant who commits, or attempts to commit: treason; murder; manslaughter; sexual battery;carjacking; home-invasion robbery; robbery; arson; kidnapping; aggravated assault with a deadlyweapon; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, ordischarging of a destructive device or bomb; any felony that involves the use or threat of physicalforce or violence against an individual; armed burglary;709 burglary of a dwelling710 or burglary ofan occupied structure; or any felony violation of sections 790.07, 800.04, 827.03, 827.071 or847.0135(5), Fla. Stat., within 3 years of being released from a state correctional facility operatedby the Department of Corrections or a private vendor, or within 3 years after being released from acorrectional institution of another state, the District of Columbia, the United States, any possessionor territory of the United States, or any foreign jurisdiction, following incarceration for an offensefor which the sentence is punishable by more than 1 year in the State of Florida. The out-of-stateoffense referred to in section 775.082(9)(a) has been interpreted to require that the elements of theout-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.

709Note that “occupied” versus “unoccupied” makes no difference if an armed burglary is involved. Eubanks v. State, 917So. 2d 898 (Fla. 5th DCA 2005).

710Although the original version of the PRRPA was not applicable to burglaries of unoccupied dwellings or structures, thestatute was amended effective July 1, 2001 to clarify that it encompassed all dwellings. Ch. 2001–239, section 1, at 2193, Laws ofFlorida. 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).

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as a felony, and the version of the Florida statute to analyze is the version in effect when the out-of-state offense was committed.711

Subsection (9)(a)2. also defines a PRR as any defendant who commits or attempts to commitany of these listed offenses while the defendant was serving a prison sentence or on escape statusfrom a state correctional facility operated by the Department of Corrections or a private vendor orwhile the defendant was on escape status from a correctional institution of another state, the Districtof Columbia, the United States, any possession or territory of the United States, or any foreignjurisdiction, following incarceration for an offense for which the sentence is punishable by more than1 year in the State of Florida. Note that the crime of DUI manslaughter is a qualifying listed offenseunder the PRRPA, because the legislature has provided for manslaughter as a qualifying offensewithout limitation.712 Similarly, the legislature has listed “burglary of a dwelling” as a qualifyingoffense without limitation, and so burglary of a dwelling with enhancement for assault or battery alsoqualifies 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 qualifyingoffense, and so burglary of an unoccupied dwelling committed prior to that date is not a qualifyingoffense.714

A defendant need only commit a qualifying offense within three years of his or her releaseand need not be convicted of that crime within three years of release.715 For continuing offenses suchas stalking, the beginning date of the offense must be on or before the effective date such offensebecame a PRR qualified, and not before.716

The word “release” in section 775.082(9)(a)1., Fla. Stat., means actual release from a stateprison sentence, not release from a temporary confinement that happens to be in state prison. Thismeans 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 forthe violation awaiting action of the parole commission, the release date for purposes of the PRRPAis the date the inmate was placed on release supervision, and not the date the inmate was released

711Hankins v. State, 42 So. 3d 871 (Fla. 2d DCA 2010).

712Souza v. State, 889 So. 2d 952 (Fla. 5th DCA 2004).

713Campbell v. State, 29 So. 3d 1147 (Fla. 1st DCA 2010).

714See, Zook v. State, 883 So. 2d 332 (Fla. 2d DCA 2004).

715Minor v. State, 763 So. 2d 1169 (Fla. 4th DCA 2000).

716Desmoke v. State, 912 So. 2d 1284 (Fla. 2d DCA 2005).

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after revocation of the release supervision.717 Where, however, the reincarceration ripens into re-imprisonment by virtue of the revocation of the defendant’s conditional release by the parolecommission, the release date for purposes of the PRRPA is the date the defendant is re-released fromprison after the revocation.718 Where a defendant’s state prison sentence expires while he or she istemporarily residing in a hospital or county jail, the defendant is constructively in a state prisonfacility when his or her sentence expires for PRR purposes.719 Similarly, release from federalcustody while housed in a county jail constitutes constructive release from a federal correctionalfacility for purposes of section 775.082(9)(a)1., Fla. Stat.720

The PRRPA makes no distinction between youthful offender commitments and adultcommitments, and so release from a youthful offender commitment may serve as a predicate for anenhanced sentence under section 775.082(9). This means that a youthful offender who has beenreleased from a Department of Corrections boot camp qualifies for enhanced sentencing as a prisonreleasee reoffender upon commission of any qualifying offense within three years of his or herrelease from boot camp.721

It is the fact of the defendant’s 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 forwhich 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 threeyears 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 offenseon September 1, 2002, the new offense is not committed within three years. The last day on whichthe new offense which would otherwise qualify, could occur in this example would be on August31, 2002. Note, however, that an argument can be made that the clock started ticking on the dayafter the defendant is released from prison, although there is no known authority for this.723

717Gibson v. State, 944 So. 2d 426 (Fla. 4th DCA 2006) (release from temporary detention for violation of control releaseis 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 thePRR statute).

718Smith v. State, 151 So. 3d 44 (Fla. 5th DCA 2014).

719Louzon v. State, 78 So. 3d 678 (Fla. 5th DCA 2012).

720Taylor v. State, 114 So. 3d 355 (Fla. 4th DCA 2013).

721Tatum v. State, 922 So. 2d 1004 (Fla. 1st DCA 2006).

722Fitzpatrick v. State, 868 So. 2d 615 (Fla. 2d DCA 2004).

723See, Berube v. State, 873 So. 2d 635 (Fla. 2d DCA 2004).

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In determining whether an offense with which the State seeks to have the defendant qualifiedas under the PRRPA can be determined to be a “felony that involves the use or threat of physicalforce or violence against an individual” the statutory elements of the crime itself must include orencompass 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 becommitted without the use or threat of physical force or violence, then it is not a forcible felony. Thecircumstances of the actual offense are thus irrelevant to this analysis. For example, battery of a lawenforcement officer (BOLEO) under section 743.01(1), Fla. Stat., and battery reclassified as a felonyunder 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 orthreat of physical force or violence, but can be committed by merely touching or striking thevictim,724 and so will not support classification as PRR or habitualization.725 Other offensesdetermined not to be within this category include solicitation by itself, even if the solicitation is fora violent crime,726 possession of a firearm by a convicted felon,727 fleeing or attempting to elude lawenforcement,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 orviolence against an individual and qualifies the defendant for sentencing under the PRRPA underthe forcible felony catch-all provision of the PRR statute because the elements of the offense require

724State v. Hearns, 961 So. 2d 211 (Fla. 2007) (battery of a law enforcement officer is not a forcible felony for purposesof 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) (defendant’s conviction for simple battery, reclassified as a felony because ofdefendant’s prior battery conviction, could never be a forcible felony); Spradlin v. State, 967 So. 2d 376 (Fla. 4th DCA 2007) (felonybattery 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 statutebecause the critical language is the same in both instances).

725See, Johns v. State, 971 So. 2d 271 (Fla. 1st DCA 2008); Spradlin v. State, 967 So. 2d 376 (Fla. 4th DCA 2007).

726Lopez v. State, 864 So. 2d 1151 (Fla. 2d DCA 2003) (solicitation to commit first-degree murder).

727Latson v. State, 882 So. 2d 1091 (Fla. 1st DCA 2004).

728Thomas v. State, 933 So. 2d 45 (Fla. 4th DCA 2006), review granted, decision quashed, 969 So. 2d 353 (Fla. 2007).

729Paul v. State, 958 So. 2d 1135 (Fla. 4th DCA 2007).

730State 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).

731Donaldson v. State, 1 So. 3d 412 (Fla. 1st DCA 2009).

732Thomas v. State, 983 So. 2d 746 (Fla. 4th DCA 2008).

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the vehicle to have been occupied.733 Burglary of a conveyance with an assault also qualifies forsentencing under the PRRPA, because it is a felony that necessarily involves the threat by word oract to do violence to the person of another.734 Felony battery under section 784.041 also qualifiesfor PRR sentencing because that crime requires great bodily harm, permanent disability, orpermanent disfigurement and cannot be committed without the use or threat of physical force orviolence.735

If the state attorney determines that a defendant is a PRR as defined in subparagraph 1. of thestatute, the state attorney may seek to have the court sentence the defendant as a PRR. Unless thedefendant 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 qualifiesas a PRR.737

Upon proof from the state attorney that establishes by a preponderance of the evidence thata defendant is a PRR as defined in the statute, such defendant is not eligible for sentencing under thesentencing guidelines which preceded the Criminal Punishment Code and must be sentenced asfollows:

1. For a felony punishable by life, by a term of imprisonment for life;2. For a felony of the first degree, by a term of imprisonment of 30 years;3. For a felony of the second degree, by a term of imprisonment of 15 years; and4. 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 prisonreleasee 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,

733Paul v. State, 129 So. 3d 1058 (Fla. 2013).

734State v. Hackley, 95 So. 3d 92 (Fla. 2012).

735State 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).

736Glover v. State, 871 So. 2d 1025 (Fla. 1st DCA 2004); see also, Sinclair v. State, 853 So. 2d 551, 552 (Fla. 1st DCA2003) (holding competent proof of appellant’s release date from prison “essential to the imposition of [a] PRR sentence”).

737See, 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 termor supervision imposed for the last felony conviction.”).

738Knight v. State, 808 So. 2d 210 (Fla. 2002).

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life in prison.739 In this regard, a conviction for capital sexual battery qualifies under the PRRPA asa 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 eligiblefor parole, control release, or any form of early release, and must serve 100% of the court-imposedsentence. There is nothing in the law to prevent a court from imposing a greater sentence ofincarceration 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 boththe Criminal Punishment Code and PRRPA. The sentence provided by the PRRPA is not amandatory 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 theCriminal Punishment Code. If the Criminal Punishment Code sentence of a defendant exceeds thePRRPA floor, the defendant must serve the PRRPA portion of his or her sentence (for which thedefendant is not eligible for gain time) first, and then remainder of his or her sentence pursuant tothe Criminal Punishment Code (for which the defendant is eligible for gain time).741 Imposing aPRR sentence is mandatory once the State proves that the defendant qualifies and the sentencingcourt 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 amandatory minimum provision that creates a sentencing floor and does not extend the maximumpermissive sentence for the subject offense, for which the rule of Hale v. State744 is inapplicable. Later that year, citing its opinion in State v. Reeves7 4 5 the Florida Supreme Court held that thePRRPA is a minimum mandatory statute and not an enhancement statute, and the necessaryconclusion that the rule in Hale has no application to the PRRPA, coupled with the stated intent ofthe PRRPA to punish eligible offenders to the fullest extent of the law, concluded that there is noreasonable interpretation of the PRRPA that would prohibit consecutive PRRPA sentences foroffenses arising out of the same criminal episode.746

739McDonald v. State, 957 So. 2d 605 (Fla. 2007).

740Jones v. State, 861 So. 2d 1261 (Fla. 4th DCA 2003).

741Nettles v. State, 850 So. 2d 487 (Fla. 2003).

742State v. Baker, 874 So. 2d 643 (Fla. 2d DCA 2004).

743Cotto v. State, 139 So. 3d 283 (Fla. 2014).

744Hale v. State, 630 So. 2d 521 (Fla. 1993).

745Reeves v. State, 957 So. 2d 625, 633 (Fla. 2007).

746State v. Mosley, 149 So. 3d 684 (Fla. 2014), approving Young v. State, 37 So. 3d 389 (Fla. 5th DCA 2010).

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A PRRPA sentence followed consecutively by a Criminal Punishment Code (CPC) sentencenot otherwise enhanced beyond the statutory maximum is a legal sentence even if the crimes arosefrom a single criminal episode.747 A mandatory minimum sentence imposed pursuant to section775.087, the 10/20/Life statute, must be imposed concurrently with any PRRPA sentence foroffenses arising out of the same criminal episode, even when the 10/20Life sentence is the lessersentence.748 Minimum mandatory sentences for separate crimes, one under the PRRPA and the otherunder the 10-20-Life statute, can be imposed consecutively.7 49 Where consecutive sentences can beimposed, the PRRPA sentence must be served first.750

When the defendant qualifies for sentencing under the PRRPA, a trial court may not sentencea defendant to a habitualized sentence that is less than or equal to the PRRPA sentence.751 This isso even in cases where a true split sentence has been imposed. E.g., where a defendant is convictedof robbery and is sentenced to thirty years in prison as a habitual felony offender (HFO), suspendedafter 15 years, with the remainder to be served on probation, and the court also imposes a concurrent15-year mandatory minimum sentence under the PRRPA, the HFO sentence does not exceed thePRR sentence and cannot stand on appeal.752 Because section 775.082(9)(c) only authorizes thecourt to deviate from the Act’s sentencing scheme to impose a greater sentence of incarceration, atrial court is without authority to sentence a defendant to an equal sentence under the habitual felonyoffender statute, even where such sentence is imposed concurrently with the PRR sentence. Onlywhere the separate habitual felony offender sentence is greater than the PRRPA sentence may it beimposed. As an example, because section 775.082(9)(c) only authorizes the court to deviate fromthe PRR sentencing scheme to impose a greater sentence of incarceration, the court is withoutauthority to impose a life sentence under the habitual offender sentencing scheme concurrent witha life sentence imposed under the PRR sentencing scheme for the same offense.753 The impositionof an applicable longer concurrent term of imprisonment with a PRR mandatory minimum sentencedoes not, however, violate double jeopardy.754 Note, also, that the PRRPA does not preclude

747Reeves v. State, 957 So. 2d 625 (Fla. 2007).

748McDonald v. State, 957 So. 2d 605 (Fla. 2007).

749Mobley v. State, 983 So. 2d 630 (Fla. 5th DCA 2008).

750Powell v. State, 881 So. 2d 1180 (Fla. 5th DCA 2004); Dubose v. State, 834 So. 2d 423 (Fla. 2d DCA 2003).

751Grant 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).

752Johnson v. State, 927 So. 2d 251 (Fla. 2d DCA 2006).

753Morris v. State, 910 So. 2d 306 (Fla. 1st DCA 2005).

754See, Scott v. State, 842 So. 2d 1054 (Fla. 4th DCA 2003); Grant v. State, 770 So. 2d 655 (Fla. 2000).

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imposition of an HFO sentence and a PRR sentence on different offenses even if those sentences areimposed during the same sentencing hearing.755

When the defendant enters a plea to pursuant to the PRR sentencing scheme, a special pleacolloquy is required, given after the standard colloquy of Fla. R. Crim. P. 3.172. An example of aPRR colloquy is at Figure 1. The PRR designation must be imposed at the time of sentencing andcannot be added after the defendant has begun serving his or her sentence.756

Habitual felony offender, habitual violent felony offender, three–time violent felonyoffender, and violent career criminal

Section 775.084, Fla. Stat. is a progressive recidivist enhancement statute that establishes thefour categories of habitual felony offender (HFO), habitual violent felony offender (HVFO), three-time violent felony offender, and violent career criminal (VCC). Each of these categories arepredicated on the commission of specific qualifying offenses, release from prison, and prior felonyconvictions. The date of conviction or date of release on one of the prior convictions must be withinfive years of the date of the commission of the underlying offense and must not have been pardonedor set aside. In order to be counted as a prior felony for purposes of sentencing under section775.084, the felony must have resulted in a conviction sentenced separately prior to the currentoffense and sentenced separately from any other felony conviction that is to be counted as a priorfelony.757 The determination of the existence of qualifying facts that form the predicate forsentencing as a HFO, HVFO, Three-Time VFO, or VCC is based on findings made by the sentencingjudge, and the decision in Blakely v. Washington758 does not require that such findings be made bya jury.759

Multiple convictions entered in a single sentencing count as one prior felony conviction, evenif for unrelated crimes.760 If imposed before separate judges on the same day, however, each counts

755Williams v. State, 870 So. 2d 166 (Fla. 2d DCA 2004); Bright v. State, 760 So. 2d 287 (Fla. 5th DCA 2000); Tolbertv. State, 827 So. 2d 278 (Fla. 2d DCA 2002).

756See Anaya v. State, 70 So. 3d 703 (Fla. 4th DCA 2011).

757See, § 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 sequentialconviction requirement, effective June 17, 1993. See, ch. 93–406, sections 2 and 44 at 2915 and 2974, Laws of Florida; see also,Quintana v. State, 913 So. 2d 628 (Fla. 3d DCA 2005).

758Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, 6 A.L.R. Fed. 2d 619 (2004).

759See, Luton v. State, 934 So. 2d 7 (Fla. 3d DCA 2006), decision clarified on denial of reh’g, (Aug. 9, 2006) (HVFOqualification does not have to be determined by a jury).

760Bover v. State, 797 So. 2d 1246, 1250 (Fla. 2001).

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as a separate conviction.761 The predicate felonies also must have both occurred prior and have beenconvicted prior to the offense being enhanced.762 A conviction is not separate from an earlierconviction, and cannot be counted as a separate conviction under section 775.084 where the trialcourt 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 Tobe counted as a “prior felony” the offense need only be adjudicated prior to sentencing of theenhanced offense, and need not be sentenced prior to sentencing for the enhanced offense. Anexample 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 89–36248–A, and wasadjudicated guilty. Becaus e Reed was a juvenile at the time, the court placed him in a juveniledetention facility while awaiting sentencing. While there, Reed escaped and committed several othercrimes for which he was convicted and sentenced as an habitual violent felony offender, case number91–13007. On April 8, 1991 Reed was sentenced in case number 89–36248–A, pursuant to his pleaand adjudication of guilty. The sentence in case number 89–36248–A was eventually vacated andReed was re-sentenced, nunc pro tunc to the original sentencing date of April 8, 1991. It is thatconviction which was used to habitualize him in 91–13007. Reed complains that this case could notbe used to habitualize him because the conviction was not final while his sentencing remained pending,and that sentence was not imposed until April 1991, after the convictions in 91–13007. . . .The recordshows that Reed had already been adjudicated guilty in accordance with his plea in 89–36248–A whenhe escaped from custody and committed the crimes for which he was eventually habitualized. Theadjudication in 89–36248–A was properly considered as a prior conviction for purposes of applyinghabitual offender sentencing in 91–13007; both the offense and conviction occurred within five yearsprior to the offenses and convictions in 91–13007.766

Nothing in the statute prevents a court from imposing a greater sentence of incarceration asauthorized by law. A sentence imposed under this statute is not subject to the provisions of the CPC;however, if the court finds that it is not necessary for the protection of the public that a defendant’ssentence be so enhanced, the defendant may be sentenced under any other applicable sentencing

761Price v. State, 721 So. 2d 360 (Fla. 5th DCA 1998).

762See, Smith v. State, 742 So. 2d 352 (Fla. 5th DCA 1999); Carson v. State, 739 So. 2d 653 (Fla. 1st DCA 1999); Rhodesv. State, 704 So. 2d 1080 (Fla. 1st DCA 1997).

763Shorter v. State, 891 So. 2d 1146 (Fla. 4th DCA 2005).

764See, McCrae v. State, 395 So. 2d 1145, 1153–54 (Fla. 1980) (defendant was “convicted” within meaning of statute ifhe had entered guilty plea to qualifying felony, but had not yet been sentenced).

765Reed v. State, 880 So. 2d 1269 (Fla. 3d DCA 2004).

766Reed v. State, 880 So. 2d 1269, 1270–71 (Fla. 3d DCA 2004).

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scheme. Note that section 775.084 does not authorize any fines.767 However, it is lawful for a courtto impose both habitual offender sentencing and a mandatory fine for a drug trafficking offenses foroffenses committed after September 30, 2000.768

The specific punishments authorized by section 775.084 are summarized in the followingtable:769

Table 1. Summary of Punishments Authorized by § 775.084, Fla. Stat.

3rd DegreeFelonies

2nd DegreeFelonies

1st DegreeFelonies

Life Felonies

HabitualFelonyOffenders

Up to 10 years Up to 30 years Lifeimprisonment

Lifeimprisonment

HabitualViolent FelonyOffenders

Up to 10 years;not eligible forrelease for 5years

Up to 30 years;not eligible forrelease for 10years

Lifeimprisonment;not eligible forrelease for 15years

Lifeimprisonment;not eligible forrelease for 15years

Three-TimeViolentOffenders

Mandatoryminimum of 5years



Mandatoryminimum of lifeimprisonment

Violent CareerCriminals

Up to 15 years,with amandatoryminimum of 10years

Up to 40 years,with amandatoryminimum of 30years

Lifeimprisonment;no discretionaryearly release

Lifeimprisonment;no discretionaryearly release

Section 775.084 does not limit enhanced HFO, HVFO, three time violent felony offender orVCC sentencing to only the primary offense and, as such, additional offenses that are not amongthose listed for a given enhancement category are also subject to the same enhancement as the

767Willits v. State, 884 So. 2d 73 (Fla. 2d DCA 2004) (imposition of fine in addition to habitual offender sentence exceedsmaximum sentence allowed by section 775.084 and must be reversed).

768Baker v. State, 941 So. 2d 419 (Fla. 2d DCA 2006).

769Adapted from Clines v. State, 912 So. 2d 550 (Fla. 2005).

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primary offense qualifying for enhancement.770 A trial court cannot designate under multiplecategories under section 775.084 for the same offense, even if the defendant meets the criteria ofmore 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 section775.084 only if the new crime was committed while the defendant was on probation, and not whilethe 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 andamended 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 placingof a person on probation or community control without an adjudication of guilt shall be treated asa prior conviction,” there was, however, conflict between the district courts on the question ofwhether a “sentence,” as referred in this section, includes the sanctions of probation and communitycontrol for purposes of making the requisite findings pursuant to the statute. The matter wasresolved by the Florida Supreme Court on September 8, 2005, which held that a “sentence,” asreferred to in section 775.084, includes the sanction of probation, relying on the plain meaning ofthe statute.773 Community control also qualifies as a “sentence” for purposes of the habitual offenderstatute.774

Determination hearing and presentence investigation

Section 775.084 requires that the sentencing court conduct a separate proceeding for thedetermination if the defendant is a habitual felony offender, habitual violent felony offender, orthree-time violent felony offender.775 Note, however, that the trial court’s failure to conduct a

770Hill v. State, 804 So. 2d 524 (Fla. 4th DCA 2002) (defendant subject to sentencing as VCC for conviction of burglaryto a dwelling and two counts of dealing in stolen property, with a thirty-year minimum mandatory sentence for each, even thoughdealing in stolen property is not one of the listed qualifying offenses).

771Clines v. State, 912 So. 2d 550 (Fla. 2005).

772See, Destra v. State, 672 So. 2d 822 (Fla. 3d DCA 1995).

773State v. Richardson, 915 So. 2d 86 (Fla. 2005), agreeing with the decision in McCall v. State, 862 So. 2d 807 (Fla. 2d

DCA 2003).

774Roman v. State, 968 So. 2d 52 (Fla. 4th DCA 2007), citing State v. Richardson, 915 So. 2d 86 (Fla. 2005) (holding thatprobation is a qualifying sentence under the habitual offender statute).

775§ 775.084(3)(a) and (b), Fla. Stat.

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hearing or make written or oral findings on the defendant's habitual felony offender status is not anappealable issue for the State.776

As a part of this proceeding the court is required to obtain and consider in such proceedinga presentence investigation prior to imposing sentence on a defendant as a habitual felony offender,habitual violent felony offender, or three- time violent felony offender.777 Unless waived, thispresentence investigation is mandatory.778 There is no similar requirement for the imposition ofsentence 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 State’sintention that the court determine the defendant to be a HFO, HVFO, three-time violent felonyoffender, or VCC a sufficient time prior to the entry of a written plea or prior to the imposition ofsentence in order to allow the preparation of a submission on behalf of the defendant.779 The Stateneeds only file one notice in a given case, and does not have to file a new notice when the case is onremand from an appellate court.780

Note that timely notice is not required for a prison releasee reoffender sentence. ThePRRPA, section 775.082(9), does not increase a defendant’s penalty beyond the statutory maximum;rather, it puts limits on the trial court’s discretion. There is no requirement within the PRRPA thata defendant be given notice of the State’s intent to seek enhanced penalties as a prison releaseereoffender.781

Before a defendant can be properly sentenced as a HFO, HVFO, 3-Time Violent FelonyOffender, or VCC, written notice has to be served on the defendant and the defendant’s attorney asufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow thepreparation of a submission on behalf of the defendant.7 8 2 In order to impose a sentence as a HFO,

776State v. McMahon, 94 So. 3d 468 (Fla. 2012) (State is not authorized to appeal a sentence that is otherwise legal on theground 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.

778Ortiz 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.

780Mackey v. State, 884 So. 2d 118 (Fla. 2d DCA 2004).

781Akers v. State, 890 So. 2d 1257 (Fla. 5th DCA 2005).

782§§ 775.084(3)(a)2., (b)2., and (c)1, Fla Stat.

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HVFO, 3-Time Violent Felony Offender, or VCC following a plea, the trial court must confirm thatthe defendant is personally aware of the consequences of such a sentence when the plea is actuallyentered.783 It is permissible for the State to provide its notice to the defendant after the defendantsigns the plea paperwork in connection with an open plea, but before sentencing, as the signing ofpaperwork 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 occurredbefore the court accepted the plea.784

The defendant may not receive a habitualized sentence when the notice is served after thedefendant’s plea, even where the length of sentence is within the statutory maximum and is notaffected by the filing.785 A statement made by the prosecutor to the trial judge in the presence of thedefendant that the defendant could qualify for such a sentence does not constitute notice under theprovisions of this law.786 While actual notice of intent to seek habitualization does not cure failureto file written notice of intent to seek habitualization where an open plea of guilty is entered, awritten plea agreement acknowledging potential habitualization signed by the defendant cures afailure to file written notice.787 The notice to the defendant must inform him or her of the State’sintention to actually seek an enhanced sentence, and notice fails where it merely informs thedefendant 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, andhence penalty, the defendant may be subject to on conviction: “shotgun” general noticesencompassing all sentencing schemes under section 775.084 meet the requirements of notice in thisregard. This is so because the notice of intent serves to provide the defendant with notice that hisor her entire criminal record will be placed at issue and that he or she should prepare to refute anyerrors in that record (e.g., that he or she was not the person convicted, was not convicted of a certainoffense, a certain conviction was vacated on appeal, and so on). When a “shotgun” notice informsa defendant that he or she is subject to all sentencing schemes under section 775.084, a defendantis given all the notice necessary to prepare for sentencing in his or her case. Note that a differentsituation would exist where, for example, the State issued particularized notice of only the lowest

783Ashley 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).

784Smith v. State, 126 So. 3d 397 (Fla. 4th DCA 2013).

785Baker v. State, 12 So. 3d 281 (Fla. 5th DCA 2009).

786Akers 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 section775.084(3)(a)2. and is not harmless error).

787Ashe v. State, 951 So. 2d 1023 (Fla. 1st DCA 2007).

788Vann v. State, 970 So. 2d 878 (Fla. 2d DCA 2007).

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enhancement of HFO and thereafter attempted to seek the highest enhancement of VCC, especiallyif different qualifying convictions are involved.789

If the state wholly fails to provide the defendant with a written notice of state’s intent tohabitualize the defendant and the defendant is habitualized at sentencing, the only remedy in thatsituation is resentencing under the applicable Sentencing Guidelines or Criminal PunishmentCode.790

Fact of prior conviction

Before a trial court may impose an enhanced sentence based on recidivism, the State mustalso establish the fact of prior conviction by providing record evidence of the date of the currentfelony offense, the date of the conviction for the last prior felony, and the date the defendant wasreleased from any prison term or supervision imposed for the last felony conviction.791 The Statemust present evidence of the prior convictions and cannot simply refer to evidence introduced at anearlier 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 ofa prior conviction, and their introduction by the State may be deemed unduly prejudicial.793 The trialcourt can rely upon certified copies of convictions and original court records in making thedetermination.794 The State meets its burden as to out-of-state priors when it provides a copy of theout-of-state judgment(s) with the defendant’s name and social security number. To constitute aqualifying 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 punishableby death or imprisonment over one year.795 The burden then shifts to the defendant to show mistakenidentity.796

789Kepner v. State, 911 So. 2d 1256 (Fla. 4th DCA 2005), cause dismissed, 984 So. 2d 519 (Fla. 2008); Travis v. State, 724So. 2d 119, 120–21 (Fla. 1st DCA 1998); Anderson v. State, 901 So. 2d 213 (Fla. 4th DCA 2005); Washington v. State, 895 So. 2d1141 (Fla. 4th DCA 2005).

790Stanford v. State, 69 So. 3d 1039 (Fla. 1st DCA 2011).

791Boyd v. State, 776 So. 2d 317, 318 (Fla. 4th DCA 2001) (habitual offender).

792See, Rich v. State, 814 So. 2d 1207, 1208 (Fla. 4th DCA 2002).

793Johnson v. State, 42 So. 3d 899 (Fla. 2d DCA 2010).

794Slade 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 batterybecause the Canadian offense encompasses less serious conduct that is not punishable under Florida’s sexual battery statute andtherefore cannot be used as a predicate to sentence a defendant as a habitual violent felony offender).

796Guion v. State, 753 So. 2d 628 (Fla. 5th DCA 2000).

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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 waiverof counsel on the record at the time of the prior conviction or a stipulation from the defense at thetime of enhancement, the State may not use uncounselled prior convictions for enhancementpurposes. Presuming waiver of counsel from silent record is impermissible.798 This issue arisesmost commonly when the State seeks to enhance misdemeanor crimes such as driving under theinfluence, driving while license suspended or revoked, and petit theft to felonies. The defendantbears the initial burden of showing entitlement to counsel because “the key is that an uncounselledconviction may not be used for enhancement if the defendant in fact had a right to counsel in theprior 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 thedefendant 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 counselwas not waived. If the defendant sets forth these facts under oath, then the burden shifts to the Stateto show either that counsel was provided or that the right to counsel was validly waived. Adefendant’s statement under oath that he or she was neither provided nor offered counsel at theproceedings resulting in prior convictions is not sufficient to put the State to the burden of provingthat 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 formore than six months, but was not incarcerated for any period, can be used to enhance a currentcharge from a misdemeanor to a felony. The State may not, however, use an uncounseled convictionto increase a defendant’s loss of liberty in the absence of a valid waiver of counsel. The loss ofliberty is a penalty different in kind and severity from other penalties, such as fines and conditionsof supervision. When, for example, the State prosecutes a repeat DUI offender, it mayconstitutionally seek applicable enhanced penalties and fines short of incarceration based upon prioruncounseled misdemeanor DUI offenses. The State may not use any of a defendant’s priormisdemeanor offenses to enhance his or her current offense unless it proves that the defendant waseither represented by counsel or validly waived that right during those prior proceedings. In otherwords, any enhanced loss of liberty may only be based on the counseled offense(s) and the offense(s)

797See, McCrae v. State, 395 So. 2d 1145 (Fla. 1980) (a defendant was “convicted” within the meaning of the statute if hehad entered a guilty plea to a qualifying felony, but had not yet been sentenced); cf. Benton v. State, 829 So. 2d 388 (Fla. 3d DCA2002) (adjudicat ion withheld and probation caused defendant to be further removed from the adjudication of guilt required fortreatment as a habitual felony offender); Schneider v. State, 788 So. 2d 1073, 1074 (Fla. 2d DCA 2001) (habitual violent offendersentence 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).

798Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967).

799Leffew v. State, 518 So. 2d 1376, 1378 (Fla. 2d DCA 1988).

800State v. Rock, 605 So. 2d 456 (Fla. 1992); see also, State v. Beach, 592 So. 2d 237 (Fla. 1992).

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for which the defendant validly waived his or her right to counsel. However, during its prosecution,the State may use each of the defendant’s prior uncounseled misdemeanor offenses to seek anyenhanced 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 thepunishment in a subsequent case, the conviction must be final. The date of sentencing for theoffense for which a habitualized sentence is sought is the relevant time for determining the finalityof any predicate conviction. A conviction for which the time for appeal has not run at the time ofthe commission of the qualifying offense can serve as a predicate offense if an appeal is not pendingat the time of the commission of the qualifying offense.802 A conviction that is not final, because itis on appeal, cannot be relied upon for habitualization.803 If the defendant files an appeal from thejudgment of guilty, finality occurs when an appellate court affirms the lower court’s judgment.804 A previous felony conviction which was pending on direct appeal is not a predicate conviction forenhancement, even if ultimately affirmed, because it was not final at the time of sentencing. Uponresentencing, the court can use only convictions which were final at the time of the originalsentencing.805 Note that this rule is different than the rule that permits the scoring on guidelines andCriminal Punishment Code scoresheets of convictions that are under appeal.

Absent specific statutory authorization, a prior juvenile withhold of adjudication ofdelinquency, or an adjudication of delinquency, may not be used as a “conviction” to reclassify amisdemeanor to a felony, even in juvenile court.806

A defendant also retains his or her right against compelled self-incrimination and cannot berequired 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 defendant’s prisonrelease date for enhancement under section 775.082(9) as a Prison Releasee Reoffender (PRR) or

801State v. Kelly, 999 So. 2d 1029 (Fla. 2008).

802Kiley v. State, 936 So. 2d 674 (Fla. 4th DCA 2006).

803See, Martin v. State, 592 So. 2d 1219 (Fla. 1st DCA 1992).

804State v. Peterson, 667 So. 2d 199 (Fla. 1996) (habitual offender).

805Breeze v. State, 641 So. 2d 450 (Fla. 1st DCA 1994); Delguidice v. State, 554 So. 2d 35 (Fla. 4th DCA 1990).

806See, J.R.H. v. State, 932 So. 2d 430 (Fla. 4th DCA 2006).

807Meehan v. State, 397 So. 2d 1214 (Fla. 2d DCA 1981) (habitual offender sentencing).

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under section 775.084 as a Habitual Felony Offender (HFO), Habitual Violent Felony Offender(HVFO), Three–Time Violent Felony Offender, or Violent Career Criminal (VCC). The State maymeet this burden with any competent and sufficient evidence. Where, however, nothing more thaninadmissible hearsay received over specific objection is adduced in order to prove a prison releasedate necessary for sentence enhancement, the enhanced sentence cannot withstand attack on directappeal.808 A Department of Corrections website printout relating to the defendant with an entryshowing when the defendant was “out of custody,” for example, is not self-authenticating, is notadmissible under the public records exception to the hearsay rule, and so cannot be used to establishthe date of the defendant’s release from prison.809

The two evidentiary rules most relevant to the determination of date of release are sections90.803(8) and 90.902(4).

Section 90.803(8), dealing with the public records exception to the hearsay rule, provides thatthe provision of section 90.802 to the contrary notwithstanding, the following are not inadmissibleas evidence, even though the declarant is available as a witness: Records, reports, statementsreduced to writing, or data compilations, in any form, of public offices or agencies, setting forth theactivities of the office or agency, or matters observed pursuant to duty imposed by law as to matterswhich there was a duty to report, excluding in criminal cases matters observed by a police officeror other law enforcement personnel, unless the sources of information or other circumstances showtheir lack of trustworthiness. This section goes on to provide that the criminal case exclusion shallnot 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 publicrecord, report, or entry, or of a document authorized by law to be recorded or filed and actuallyrecorded or filed in a public office, including data compilations in any form, certified as correct bythe custodian or other person authorized to make the certification by certificate complying with

808Gray v. State, 910 So. 2d 867 (Fla. 1st DCA 2005).

809Campbell v. State, 949 So. 2d 1093 (Fla. 3d DCA 2007).

810§ 90.803(8), Fla. Stat.

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subsection (1),811 subsection (2),8 1 2 or subsection (3)813 or complying with any act of the Legislatureor 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 self-authenticating under section 90.902(4), it must be certified by the custodian of the document(“certified as correct by the custodian or other person authorized to make the certification”) and thatthe copy is correct and that the person has custody of the original (“actually recorded or filed in apublic office”).815

A Department of Corrections computer printout called a “Crime and Time Report,” whichstates when a defendant entered and left the Department of Corrections, is admissible under thebusiness records exception to the hearsay rule, and is not testimonial hearsay under Crawford v.Washington816 to establish the defendant’s prison release date for the purposes of enhancedsentencing, so long as the prosecutor establishes the state law predicate to admission.817 Computerprintouts, like business records, are admissible if the records custodian or other qualified witness is

811“A document bearing: (a) A seal purporting to be that of the United States or any state, district, commonwealth, territory,or insular possession thereof; the Panama Canal Zone; the Trust Territory of the Pacific Islands; or a court, political subdivision,department, officer, or agency of any of them; and (b) A signature by the custodian of the document attesting to the authenticity ofthe 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 insubsection (1), afixed in the officer’s or employee’s 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 person’s official capacity authorized by the laws of a foreign country to make

the execution or attestation; and(b) Accompanied by a final certification, as provided herein, of the genuineness of the signature and official position of:

1. The executing person; or2. 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 agentof the United States or a diplomatic or consular official of the foreign country assigned or accredited to the United States. When theparties receive reasonable opportunity to investigate the authenticity and accuracy of official foreign documents, the court may orderthat they be treated as presumptively authentic without final certification or permit them in evidence by an attested summary withor without final certification.” § 90.902(3), Fla. Stat.

814§ 90.902(4), Fla. Stat.

815See, Christie v. State, 951 So. 2d 1029 (Fla. 4th DCA 2007); § 90.902(4), Fla. Stat.

816Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv. 1077 (2004).

817Desue v. State, 908 So. 2d 1116 (Fla. 1st DCA 2005).

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available to testify as to manner of preparation, reliability and trustworthiness of the product.818 Inappropriate circumstances, a printout may also be admissible as a properly certified copy of anofficial public record.819 A letter from the Department of Correction stating the date the defendantwas released from prison is, by itself, not admissible under either the business- or public-recordsexceptions to the hearsay rule. There is, however, no applicable legal impediment to the State andthe Department of Corrections using a signed release-date letter, written under seal, as a means ofauthenticating an attached Department of Corrections Crime and Time Report, which then rendersthe entire report admissible as a public record.820 A statement in a letter or affidavit from acorrectional services administrator or records management analyst that specified that it was givenunder seal and stating that the defendant was last released on a specific qualifying offense, whichwas within the period for sentencing for enhancement, is admissible under the public recordsexception to the hearsay rule, in which the availability of the declarant is immaterial, and the letteror 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 thedeclarant derived the criminal history information contained in the statement.821 The use of anuncertified printout from the website of the Department of Corrections is neither self-authenticatingnor admissible under the public records exception to the hearsay rule, and so is insufficient by itselfto establish a defendant’s release date from prison.8 2 2 The State may not, in any event, rely solelyon hearsay to prove a defendant’s release from prison.823

Even where such records are deemed admissible to prove date of release, however, the Statestill has the burden of proving the identity of the person released. Unless such documents are

818Cofield 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).

819See, § 90.902(4), Fla. Stat.; Charles W. Ehrhardt, Florida Evidence § 902.5, at 966 (2005 ed.) (explaining that to be self-authenticating under Sec. 90.902(4), “the custodian of the document, or other person authorized by statute to make a certification,must certify that the copy is correct and that the person has custody of the original. . . . The custodian’s signature must follow thestatement”). Compare, King v. State, 590 So. 2d 1032, 1033 (Fla. 1st DCA 1991) (holding probation officer’s testimony regardingdefendant’s release date, based on an unauthenticated Department of Corrections computer printout, was inadmissible hearsay, andthat “[w]ithout the improperly admitted hearsay, the evidence is legally insufficient to support the trial court’s finding that appellantis an habitual felony offender”).

820Yisrael v. State, 993 So. 2d 952 (Fla. 2008), as revised on denial of reh’g, (July 10, 2008).

821See, 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 reh’g, (July 10, 2008) and (disapproved of by, Ray v. State, 7 So. 3d 529(Fla. 2009)); § 90.803(8), Fla. Stat.

822Whitley v. State, 2009 WL 3126159 (Tex. App. Texarkana 2009).

823Glover v. State, 871 So. 2d 1025 (Fla. 1st DCA 2004).

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accompanied by certified fingerprints, a photograph of the defendant, or some other competentevidence 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 factqualifies, and an in-court concession to this effect by counsel can satisfy the State’s burden.825 Oncethe State has met its burden, the burden shifts to the defendant to prove exceptional facts making theenhanced sentencing inapplicable.826

Habitual felony offender

Any felony offense that by its own statutory language is punishable as provided in the felonyoffender statute, section 775.084, Fla. Stat., qualifies for habitual felony offender enhancement. Thefelony offender statute does not set forth the specific qualifying offenses for habitual felony offenderenhancement, and so reference must be made to the language of the statute defining the offense forwhich sentencing is to take place. The offense of leaving the scene of a crash involving death orinjury 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 notreference 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 anextended 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 feloniesin this state or other qualified offenses.

2. The felony for which the defendant is to be sentenced was committed:

a. While the defendant was serving a prison sentence or other sentence, or court-ordered or lawfully imposed supervision that is imposed as a result of a prior conviction for a felonyor other qualified offense; or

824Bodie 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 submittedcontained a photograph of the defendant, which was sufficient to prove identity); Keith v. State, 844 So. 2d 715, 716 (Fla. 2d DCA2003) (noting that a certified copy of a judgment and sentence were sufficient to prove identity for purposes of PRR sentencing).

825Smith 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).

826Brown 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, 120–21 (Fla. 1st DCA 1998); Smith v. State, 753 So. 2d 703 (Fla. 5th DCA 2000), decision approved,787 So. 2d 830 (Fla. 2001).

827See Kennedy v. State, — So. 3d —, 2015 WL 489593 (Fla. 2d DCA 2015).

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b. Within five years of the date of the conviction of the defendant’s last prior felonyor other qualified offense, or within five years of the defendant’s release from a prison sentence,probation, community control, control release, conditional release, parole or court-ordered orlawfully imposed supervision or other sentence that is imposed as a result of a prior conviction fora 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 felonyconvictions, is not a violation of section 893.13 relating to the purchase or the possession of acontrolled substance.

4. The defendant has not received a pardon for any felony or other qualified offense that isnecessary for the operation of this paragraph.

5. A conviction of a felony or other qualified offense necessary to the operation of thisparagraph has not been set aside in any postconviction proceeding.

Upon making a finding that a defendant is a habitual felony offender, the court may sentencethe 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 suchunless the court finds that such a sentence is not necessary for the protection of the public and placesits reasons for doing so on the record in writing.828 Note, however, that it can happen that a courtfinds that the defendant qualifies as a habitual offender but through inadvertence or oversight doesnot impose a HFO sentence. Hale829 does not apply in such a situation, and the sentence imposedwill be upheld as lawful if it does not exceed the statutory maximum for a sentence that could havebeen 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); O’Neal v. State, 862 So. 2d 91(Fla. 2d DCA 2003).


830Elliott v. State, 9 So. 3d 660 (Fla. 5th DCA 2009).

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A habitualized offense cannot be used as a primary offense on a scoresheet.831 Habitualizedoffenses may not be used as additional offenses.832 Sentences for habitualized offenses arising froma 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 threesentencing possibilities: (1) If the trial court adjudicates the defendant a habitual felony offender asto all the charges, it may enhance the sentences as provided by section 775.084(4)(a), but thesentences must run concurrently.834 (2) If the trial court adjudicates the defendant a habitual felonyoffender as to one charge, but not the other, then the sentences may be imposed consecutively as longas the total punishment does not exceed the statutory maximum enhanced under the habitual felonyoffender statute.835 Finally, the trial court can adjudicate a defendant a habitual felony offender, butsentence him without regard to section 775.084, if it sets forth written reasons why it is not necessaryfor the protection of the public.836 The trial court can then sentence the defendant separately on eachcharge, 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 ofevaluating consecutive enhancement sentences.838 Whether the two or more offenses werecommitted 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 thestatutory maximum on one or more counts arising from a single criminal episode, consecutive

831Johnson 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).

832Smith v. State, 632 So. 2d 95 (Fla. 2d DCA 1994); Ricardo v. State, 608 So. 2d 93 (Fla. 2d DCA 1992).

833Howard v. State, 852 So. 2d 901 (Fla. 2d DCA 2003); Hale v. State, 630 So. 2d 521 (Fla. 1993).


835Fuller 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).

838Wilcher v. State, 787 So. 2d 150, 152 (Fla. 4th DCA 2001).

839Williams 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, 120–21 (Fla. 1st DCA 1998).

840Wilcher v. State, 787 So. 2d 150, 151 (Fla. 4th DCA 2001)(quoting Smith v. State, 650 So. 2d 689, 691 (Fla. 3d DCA1995)).

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sentencing may not be used to further lengthen the overall sentence.841 This means, for example, thata court cannot sentence a defendant convicted of both sale of cocaine and possession of the samecocaine to a habitualized sentence on the sale of cocaine that exceeds the statutory maximum on thatcount and then further lengthen that defendant’s overall sentence by running the sentence for thepossession of cocaine consecutively to the habitualized sentence.842 Where the combined sentencesdo not exceed the statutory maximum, it may be possible to impose consecutive sentences.16 Wheremultiple counts involve a single victim but charge separate criminal episodes, consecutive sentencesmay be imposed.843 It is permissible to sentence one defendant as both a habitual offender and asa PRR on separate counts and on the same count as long as the sentences are concurrent and theincarceration for the habitual offender sentence is greater than the incarceration for the PRRsentence, but it is not permissible to sentence a defendant to consecutive sentences when thesentences have already been enhanced under the habitual offender or PRR provisions and theoffenses arose from the same criminal episode.844 Probation cannot be used to make a habitualizedsentence “greater” than a PRR sentence, as when a court imposes a 15-year PRR sentence and a 15-year HFO sentence followed by 10 years of probation added to the HFO sentence.845

The rule against consecutive habitualized sentencing that exceeds the statutory maximumdoes not apply to accompanying misdemeanor offenses. Where, for example, a defendant issentenced to consecutive habitualized sentences of incarceration, the total of which does not exceedthe statutory maximum sentence the defendant could have received had the sentencing courtenhanced none of the defendant’s sentences and had run them all consecutively, the sentencing courtcan impose consecutive sentences of incarceration for accompanying misdemeanors even if thecombined total exceeds the statutory maximum of the accompanying felony offenses when combinedwith the sentencing of those felonies. This is because misdemeanors cannot be enhanced under thehabitual offender statute and have no effect on the statutory maximum sentence faced by thedefendant for accompanying felony offenses.846

841Kiedrowski v. State, 876 So. 2d 692 (Fla. 1st DCA 2004); Fuller v. State, 867 So. 2d 469 (Fla. 5th DCA 2004).

842See, Mills v. State, 949 So. 2d 1186 (Fla. 1st DCA 2007); Dawson v. State, 951 So. 2d 931 (Fla. 4th DCA 2007); Fullerv. 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 onecount, consecutive probation term on count two was not erroneous although the offense arose from a single episode).

843Trotter v. State, 744 So. 2d 583 (Fla. 2d DCA 1999).

844Hunsicker 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, 120–21 (Fla. 1st DCA 1998).

845Michel v. State, 935 So. 2d 1228 (Fla. 5th DCA 2006).

846Hamilton v. State, 996 So. 2d 964 (Fla. 1st DCA 2008).

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There is conflict between the First and Fifth Districts as to whether or not consecutivesentencing is permitted otherwise.847 Note that where the trial court imposes a habitual offendersentence that is more lenient than the sentence required by the former guidelines of the CriminalPunishment 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 forthe trial court to specifically state that it is imposing a habitual offender sentence; the trial court mustmake 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 sentencinga 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 PunishmentCode sentencing range and state appropriate reasons for any downward departure.850 Hybrid splitsentences of incarceration without habitual offender status followed by probation as an habitualoffender are not authorized by section 775.084 and are in fact inconsistent with the plain languageof the statute.851

Note that, to effectuate a habitual felony offender sentence upon revocation of probation, atrial court must orally pronounce habitual offender status, even when the defendant was initiallysentenced as a habitual felony offender for the substantive offense and the designation has not beenset aside. Otherwise, the limit of the defendant’s 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

847Davis v. State, 710 So. 2d 1051 (Fla. 1st DCA 1998) (where defendant was found to be a habitual offender only as tocount one, consecutive probation term on count two was not erroneous although the offenses arose from a single episode); Fullerv. State, 867 So. 2d 469 (Fla. 5th DCA 2004) (once the habitual offender sentencing scheme is utilized to enhance a sentence beyondthe statutory maximum on one or more counts arising from a single criminal episode, consecutive sentencing may not be used tofurther 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); O’Neal 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 effectuatea 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).

849Vonador 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).

850State v. Perez, 802 So. 2d 1167 (Fla. 3d DCA 2001); State v. Stanton, 781 So. 2d 1129 (Fla. 3d DCA 2001).

851See, King v. State, 681 So. 2d 1136 (Fla. 1996) (guidelines sentence cannot be upgraded to habitual offender sentencingat revocation proceeding unless defendant agrees at original sentencing).

852White v. State, 892 So. 2d 541 (Fla. 1st DCA 2005).

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cannot be sentenced an a habitual offender upon revocation unless the defendant agrees to such ina 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 ofFla. R. Crim. P. 3.172. An example of a HFO colloquy is at Figure 2. The trial court must confirmthat the defendant is personally aware of that possibility and of the reasonable consequences ofhabitualization. Knowledge that habitualization may affect the possibility of early release throughcertain programs is considered a direct consequence or one that has a definite, immediate, and largelyautomatic effect on the range of a defendant’s punishment. As it is such, during the plea colloquythe trial court should discuss with the defendant his or her eligibility for habitualization, as well asthe maximum habitual offender term for the charged offense, the fact that habitualization may affectthe possibility of early release through certain programs, and where habitual violent felony offenderprovisions are implicated, the mandatory minimum term.854

On occasion, a defendant is given a habitualized sentence in error, when the defendant doesnot qualify for habitualization. For a resentencing after an erroneous habitualization, the trial courtmay restructure the sentence so as to achieve, but not exceed, the original sentencing intent. Thismeans that where, for example, the defendant is sentenced on multiple offenses to a total term offorty years, the defendant can be resentenced under the Criminal Punishment Code (or the applicableguidelines if the offenses were committed before October 1, 1998) in such a way that thecombination of sentences, run either consecutively or concurrently, equals but does not exceed 40years, consistent with the court’s original sentencing intent.855

When, however, a criminal sentence is reversed on appeal because of insufficient evidenceof the defendant’s habitual offender status, the State may present new evidence on that issue atresentencing. This is because resentencing is a de novo proceeding, in which the sentencer is toconsider all relevant evidence regarding the nature of the crime and the character of the defendantto determine appropriate punishment.856

Habitual violent felony offender

Another enhancement category in section 775.084, Fla. Stat., is that of habitual violent felonyoffender (HVFO). ‘‘Habitual violent felony offender’’ means a defendant for whom the court mayimpose an extended term of imprisonment, as provided in paragraph (4)(b), if it finds that:

853Lockhart v. State, 980 So. 2d 613 (Fla. 4th DCA 2008).

854Murphy v. State, 952 So. 2d 1214 (Fla. 5th DCA 2007).

855Suarez v. State, 974 So. 2d 451 (Fla. 3d DCA 2008).

856State v. Collins, 985 So. 2d 985 (Fla. 2008).

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1. The defendant has previously been convicted of a felony or an attempt or conspiracy tocommit 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 anelderly person or disabled adult; aggravated manslaughter of a child; unlawful throwing, placing, ordischarging of a destructive device or bomb; armed burglary; aggravated battery; or aggravatedstalking.

2. The felony for which the defendant is to be sentenced was committed:

a. While the defendant was serving a prison sentence or other sentence, or court-ordered or lawfully imposed supervision that is imposed as a result of a prior conviction for anenumerated felony; or

b. Within five years of the date of the conviction of the last prior enumerated felony,or within five years of the defendant’s release from a prison sentence, probation, community control,control release, conditional release, parole, or court-ordered or lawfully imposed supervision or othersentence 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 thatis 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 notbeen set aside in any postconviction proceeding.

Upon making the requisite finding, the court may sentence the habitual violent felonyoffender as follows:

1. In the case of a life felony or a felony of the first degree, for life, and such offender shallnot 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 suchoffender 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 suchoffender shall not be eligible for release for five years.

A defendant needs only one qualifying prior conviction in order to be sentenced as aHVFO.857 Since only one qualifying felony is needed for a HVFO adjudication, it does not matter

857Hall v. State, 821 So. 2d 1154 (Fla. 2d DCA 2002).

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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 unlessthe court finds that such a sentence is not necessary for the protection of the public and places itsreasons for doing so on the record in writing.859

When the defendant enters a plea to an offense pursuant to the Habitual Violent FelonyOffender (HVFO) sentencing scheme, a special plea colloquy is required, given after the standardcolloquy 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 three-time violent felony offender. “Three-time violent felony offender” means a defendant for whom thecourt must impose a mandatory minimum term of imprisonment, as provided in section775.084(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, orattempting to commit, any of the following offenses or combination thereof: arson; sexual battery;robbery; kidnapping; aggravated child abuse; aggravated abuse of an elderly person or disabled adult;aggravated assault with a deadly weapon; murder; manslaughter; aggravated manslaughter of anelderly person or disabled adult; aggravated manslaughter of a child; unlawful throwing, placing, ordischarging of a destructive device or bomb; armed burglary; aggravated battery; aggravatedstalking; home invasion/robbery; carjacking; or an offense which is in violation of a law of any otherjurisdiction if the elements of the offense are substantially similar to the elements of any of thefelony 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 enumeratedand was committed:

a. While the defendant was serving a prison sentence or other sentence imposed asa 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 soenumerated, or within five years after the defendant’s release from a prison sentence, probation,community control, or other sentence imposed as a result of a prior conviction for any offense soenumerated, whichever is later.

858Williams 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); O’Neal v. State, 862 So. 2d 91,93 (Fla. 2d DCA 2003).

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3. The defendant has not received a pardon on the ground of innocence for any crime thatis necessary for the operation of this paragraph.

4. A conviction of a crime necessary to the operation of this paragraph has not been set asidein any postconviction proceeding.

Upon making the requisite finding, the court must sentence the three-time violent felonyoffender 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 judge’s discretion insentencing a three time violent felony offender, but the statute appears to make it mandatory upona finding that the defendant qualifies as such. Section 775.084(4)(e) specifically sets forth theportions of the statute where the court has discretion in imposing an enhanced sentence, and doesnot 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 careercriminal (VCC). “Violent career criminal” means a defendant for whom the court must imposeimprisonment pursuant to subparagraph (4)(d) if it finds that:

1. The defendant has previously been convicted as an adult three or more times for anoffense in this state or other qualified offense that is: any forcible felony, as described in section776.08; aggravated stalking, as described in section 784.048(3) and (4); aggravated child abuse, asdescribed in section 827.03(2); aggravated abuse of an elderly person or disabled adult, as describedin section 825.102(2); lewd or lascivious battery, lewd or lascivious molestation, lewd or lasciviousconduct, 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 orpossession of a firearm.

2. The defendant has been incarcerated in a state prison or a federal prison.

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3. The primary felony offense for which the defendant is to be sentenced is a felony soenumerated and was committed on or after May 24, 1997,860 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 anenumerated felony; or

b. Within five years after the conviction of the last prior enumerated felony, or withinfive years after the defendant’s release from a prison sentence, probation, community control, controlrelease, conditional release, parole, or court-ordered or lawfully imposed supervision or othersentence that is imposed as a result of a prior conviction for an enumerated felony, whichever is later.

4. The defendant has not received a pardon for any felony or other qualified offense that isnecessary for the operation of this paragraph.

5. A conviction of a felony or other qualified offense necessary to the operation of thisparagraph has not been set aside in any postconviction proceeding.

The law provides that, upon making the requisite finding, the court “shall” sentence theviolent 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 amandatory 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 amandatory minimum term of 10 years’ imprisonment.

“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery;aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructivedevice or bomb; and any other felony which involves the use or threat of physical force or violenceagainst any individual.861 This definition includes all enumerated felonies, plus any additional felonywhich involves the use or threat of physical force or violence against an individual, and does notrequire the use or threat of physical force or violence against an individual in the circumstances of

860The violent career criminal statute became effective on October 1, 1995 but, pursuant to Heggs v. State, 759 So. 2d 620(Fla. 2000) and State v. Thompson, 750 So. 2d 643 (Fla. 1999), it is valid only on or after May 24, 1997.

861§ 776.08, Fla. Stat.

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the enumerated felonies.862 The phrase “involves the use or threat of physical force or violenceagainst any individual” is not a limitation on all of the crimes previously listed in the forcible felonystatute.863

Simple burglary is a qualifying “forcible felony” offense under the statute.864 Burglary of anunoccupied conveyance is also a “forcible felony” and a qualifying offense under section775.084(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 insection 776.08, Fla. Stat., and does not amount to “the use or threat of use of physical forceor violence” as provided by that section.867

— Robbery by sudden snatching does not qualify as an enumerated felony under section775.084(1)(d)3.b. because: (1) it is not any of those crimes identified in section775.084(1)(d)1.b.-g.; (2) it is not expressly identified as a “forcible felony” under section776.08; (3) it cannot be considered as an implied “forcible felony” under section 776.08because, if the legislature intended to include all forms of robbery under that statute, then itwould have been unnecessary for the legislature to have particularly listed “home-invasionrobbery” and “robbery” under section 776.08;868 and (4) “robbery by sudden snatching” doesnot qualify as a “felony which involves the use or threat of physical force or violence againstany individual” under section 776.08.869

862Rodriguez v. State, 826 So. 2d 464 (Fla. 3d DCA 2002), adhered to on denial of reh’g, 837 So. 2d 1177 (Fla. 3d DCA2003).

863Ubilla v. State, 8 So. 3d 1200 (Fla. 3d DCA 2009); Rodriguez v. State, 826 So. 2d 464 (Fla. 3d DCA 2002), adhered toon denial of reh’g, 837 So. 2d 1177 (Fla. 3d DCA 2003).

864Rodriguez v. State, 826 So. 2d 464, 465 (Fla. 3d DCA 2002), adhered to on denial of reh’g, 837 So. 2d 1177 (Fla. 3dDCA 2003).

865Bynes v. State, 854 So. 2d 289 (Fla. 4th DCA 2003).

866Cala v. State, 854 So. 2d 840 (Fla. 3d DCA 2003).

867State v. Hearns, 961 So. 2d 211 (Fla. 2007) (battery of a law enforcement officer is not a forcible felony for purposesof 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).

868Cf. Gorham v. State, 988 So. 2d 152, 154 (Fla. 4th DCA 2008) (“If the legislature intended to include all burglaries forPRR sentencing, then it would have been unnecessary to state any particular form of burglary.”).

869Thomas v. State, 983 So. 2d 746, 747 (Fla. 4th DCA 2008), citing State v. Hearns, 961 So. 2d 211, 212 (Fla. 2007).

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— Throwing a deadly missile is not one of the listed offenses and does not necessarilyinvolve physical force or violence against an individual and so cannot serve as a qualifyingoffense for imposition of a violent career criminal sentence.870

— The crime of corruption by threat is not a forcible felony for purposes of sentencing, asit 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 becausethe 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 doesnot meet the requirements to be a qualifying or predicate offense for violent career criminalenhancement.873 Attempts and conspiracies are not “forcible felonies” expressly listed insection 776.08, and they do not fall within section 776.08’s “other felony which involves theuse 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 defendantqualifies as such unless the court finds that such a sentence is not necessary for the protection of thepublic 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 earlyrelease, other than pardon or executive clemency, or conditional release granted pursuant to section947.149, Fla. Stat., and a defendant sentenced for an offense committed on or after July 1, 1999, asa three-time violent felony offender can be released only by expiration of sentence and is not eligiblefor 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 ofFla. R. Crim. P. 3.172. An example of a VCC colloquy is at Figure 4.

870Hudson v. State, 800 So. 2d 627 (Fla. 3d DCA 2001), on reh’g in part, (Nov. 21, 2001).

871Dresch v. State, 150 So. 3d 1199 (Fla. 4th DCA 2014).

872Bradley v. State, — So. 3d —, 2015 WL 340683 (Fla. 4th DCA 2015).

873Campbell 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).

874Campbell 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, 728So. 2d 792 (Fla. 5th DCA 1999).

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Scoresheet preparation when PRR, VCC, HFO, HVFO and 3-Time VCC designationsapply

One of the greatest areas of confusion in scoresheet preparation is where the enhancedsentencing 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 becausethe court needs to determine the thresholds for sentencing. In the cases of PRR and 3-time VFO, theprosecutor still needs to prepare a scoresheet, even though there are mandatory minimums. In allsuch cases, the non-enhanceable offenses are scored separately from the enhanceable offenses todetermine the sentencing floor, and a scoresheet listing only those offenses sentenced under theCriminal Punishment Code must be filed in addition to any sentencing documents filed under section775.082(9) or section 775.084.876 As a matter of common practice, the non-enhanceables are usuallysentenced concurrently to the enhanced offenses. The logic of this practice is that it prevents anenhanceable offense from “bootstrapping” a nonenhanceable offense beyond the statutory maximumfor that offense.

For example, if a defendant gets an enhanced sentence of thirty years for Robbery, suspendedafter fifteen years with fifteen years probation to follow, and after leaving prison violates probationwith a third-degree level felony Level 3 charge of Possession of Cocaine, the Robbery VOP is puton a separate scoresheet, which includes the defendant’s prior record; the Possession of Cocainecharge goes on another scoresheet, with the Robbery charge scored as a prior conviction, and is usedto determine the bottom of the range of sentencing the judge can impose on the defendant. Thesituation 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), anenhanceable 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 fromsentencing under the Criminal Punishment Code or the earlier guidelines, such offenses can besubsequently used as prior record when scoring an offense committed subsequently to theenhanceable offense(s).877

10/20/Life

Section 775.087, Fla. Stat., the “10/20/Life” law, is a reclassification statute that also containsprogressive minimum mandatory sentencing provisions that are geared to the specific offense

876See, Fla. R. Crim. P. 3.704(d)(1), 3.703(d)(1), 3.702(d)(1).

877Ricardo v. State, 608 So. 2d 93 (Fla. 2d DCA 1992).

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committed and whether the defendant possessed or discharged a firearm and caused death or seriousbodily injury.

Pursuant to section 775.087(1), Fla. Stat., unless otherwise provided by law, whenever adefendant is charged with a felony, except a felony in which the use of a weapon or firearm is anessential 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 felonythe defendant commits an aggravated battery, the felony for which the person is charged isreclassified. 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. Forpurposes of sentencing under chapter 921, a felony offense which is so reclassified is ranked onelevel above the ranking under section 921.0022 or section 921.0023 of the felony offensecommitted.878 Note that one of the effects of Heggs v. State,879 is that the one-level increases for useof a firearm are not applicable to a defendant who committed the charged offense within the windowperiod of October 1, 1995, and May 24, 1997.880

Section 775.087(1) precludes reclassification if the crime charged requires the use of aweapon as one of its essential elements.881 That is, as indicated in section 775.087(1), a degreeclassification pertains when the offense is committed with the use of a weapon, unless the use of theweapon is an essential element of the crime. As an example, although aggravated battery causinggreat bodily harm can be reclassified pursuant to section 775.087(1) because the use of a weapon isnot necessary to cause great bodily harm, the crime of aggravated battery with the use of a deadlyweapon is not subject to reclassification because the use of a weapon is an essential element of thecrime.882 In other words, aggravated battery can be committed in alternative ways, such as bycausing great bodily harm or by using a deadly weapon.883 Where the jury finds great bodily harmand the use of a deadly weapon and it cannot be determined whether the conviction is based on oneor the other, reclassification is precluded.884 Thus, in order to support the reclassification undersection 775.087(1), the jury must be given the option of finding the defendant guilty of aggravatedbattery with great bodily harm without also finding the defendant guilty of aggravated battery with

878§ 775.087(1), Fla. Stat.

879Heggs v. State, 759 So. 2d 620 (Fla. 2000).

880Reid v. State, 799 So. 2d 394 (Fla. 4th DCA 2001).

881See, Lareau v. State, 573 So. 2d 813 (Fla. 1991); Cargle v. State, 829 So. 2d 366 (Fla. 1st DCA 2002).

882Davis v. State, 884 So. 2d 1058 (Fla. 2d DCA 2004).

883§ 784.045(1), Fla. Stat.

884Cabral v. State, 944 So. 2d 1026 (Fla. 1st DCA 2006).

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a deadly weapon.885 Where, however, the jury finds both great bodily harm and the use of a deadlyweapon but it is clear that the aggravated battery is independently established by the great bodilyharm and the use of a deadly weapon is not an essential element of the aggravated battery, the useof 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 defendant’s sentence may only be reclassifiedupon a showing that the defendant had personal possession of the weapon during the commissionof the felony.887 Reclassification under section 775.087(1) for use of a firearm requires actual, notvicarious, possession of the firearm.888

Another example is where the defendant is convicted under section 790.19, Fla. Stat., ofshooting a deadly missile for shooting a firearm into a house.889 Similarly, the offense of attemptedarmed robbery, which is a second-degree felony, cannot be punished as a first-degree felony undersection 775.087, Fla. Stat., because the use of a weapon is an essential element of the offense.890 Useof a weapon does not, however, become an essential element of the offense, thereby precludingreclassification under section 775.087(1), Fla. Stat., merely because it is charged in theInformation.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,

885Webb v. State, 997 So. 2d 469 (Fla. 2d DCA 2008).

886Hurry v. State, 978 So. 2d 854 (Fla. 1st DCA 2008).

887See State v. Rodriguez, 602 So. 2d 1270 (Fla. 1992).

888Connolly v. State, 2014 WL 2199750 (Fla. 3d DCA 2014), mandamus dismissed, 2014 WL 3479360 (Fla. 2014); Travisv. State, 724 So. 2d 119, 120–21 (Fla. 1st DCA 1998).

889Jefferson v. State, 927 So. 2d 1037 (Fla. 4th DCA 2006) (Sentencing enhancement for use of a firearm during offensewas not applicable to defendant’s conviction for shooting a deadly missile, since use of a weapon was an “essential element” of thecrime of shooting a deadly missile); but see, Robertson v. State, 807 So. 2d 708 (Fla. 4th DCA 2002) (additional firearm sentencingpoints are authorized when the defendant uses a firearm and is convicted of shooting a deadly missile because possession of a firearmis not an essential element of the crime); Bradford v. State, 722 So. 2d 858 (Fla. 1st DCA 1998) (trial court erred in imposing three-year minimum mandatory sentence for the charge of shooting or throwing a deadly missile but did not err in assessing eighteensentencing points for use of a firearm in committing the offense).

890Williams v. State, 850 So. 2d 656 (Fla. 1st DCA 2003), citing State v. Tripp, 642 So. 2d 728 (Fla. 1994).

891Henry 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 andnothing 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 asa first-degree felony).

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is contained in section 27.366, Fla. Stat. As stated, the intent of the Florida Legislature is thatconvicted defendants meeting the criteria of section 775.087(2) and (3) be sentenced to the minimummandatory prison terms provided by that statute, while cautioning that “prosecutors shouldappropriately exercise their discretion in those cases in which the offenders’ possession of thefirearm is incidental to the commission of a crime and not used in furtherance of the crime, used inorder to commit the crime, or used in preparation to commit the crime.” Section 27.366 alsomandates 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 thesentencing deviation in writing and place such explanation in the case file maintained by the stateattorney.”

Table 2. Minimum Mandatory Qualifying Offenses Under § 775.087, Fla. Stat.

Offense § 775.087(2)(a)1. § 775.087(3)(a)1.

Murder X X

Sexual Battery X X

Robbery X X

Burglary X X

Arson X X

Aggravated Assault X X

Aggravated Battery X X

Kidnapping X X

Escape X X

Sale, manufacture, delivery, or intent tosell, manufacture or deliver any controlledsubstances

- X

Aircraft Piracy X X

Aggravated Child Abuse X X

Aggravated Abuse of an Elderly Person orDisabled Adult

X X

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Unlawful Throwing, Placing, orDischarging a Destructive Device orBomb

X X

Carjacking X X

Home Invasion Robbery X X

Aggravated Stalking X X

Drug Trafficking892 X X

Possession of a Firearm by a Felon X -

Notwithstanding section 27.366, however, the sentencing court shall not impose themandatory minimum sentence required by sections 775.087(2) or (3) for a conviction for aggravatedassault if the court makes written findings that:

1. The defendant had a good faith belief that the aggravated assault was justifiable pursuantto chapter 776, Fla. Stat.

2. The aggravated assault was not committed in the course of committing another criminaloffense.

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 impositionof such sentence.893

As to firearms and destructive devices, a defendant who is convicted of a felony or an attemptto commit a felony, regardless of whether the use of a weapon is an element of the felony, and theconviction was for: murder; sexual battery; robbery; burglary; arson; aggravated assault; aggravatedbattery; kidnapping; escape; aircraft piracy; aggravated child abuse; aggravated abuse of an elderlyperson or disabled adult; unlawful throwing, placing, or discharging of a destructive device or bomb;carjacking; home-invasion robbery; aggravated stalking; trafficking in cannabis, trafficking incocaine, capital importation of cocaine, trafficking in illegal drugs, capital importation of illegal

892Trafficking in cannabis, trafficking in cocaine, capital importation of cocaine, t rafficking in illegal drugs, capitalimportation 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, traffickingin gammahydroxybutyric acid (GHB), trafficking in 1,4-Butanediol, trafficking in Phenethylamines, or other violation of section893.135(1). §§ 775.087 (2)(a)1, and (3)(a)1, Fla. Stat.

893§ 775.087(6), Fla. Stat.

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drugs, trafficking in phencyclidine, capital importation of phencyclidine, trafficking inmethaqualone, capital importation of methaqualone, trafficking in amphetamine, capital importationof amphetamine, trafficking in flunitrazepam, trafficking in gamma-hydroxybutyric acid (GHB),trafficking in 1,4–Butanediol, trafficking in Phenethylamines, or other violation of section893.135(1); or possession of a firearm by a felon, and during the commission of the offense, suchperson actually possessed a “firearm” or “destructive device” as those terms are defined in section790.001, must be sentenced to a minimum term of imprisonment of 10 years, except that a personwho is convicted for aggravated assault, possession of a firearm by a felon, or burglary of aconveyance must be sentenced to a minimum term of imprisonment of three years if such personpossessed a “firearm” or “destructive device” during the commission of the offense.894 The three-year mandatory minimum sentence provided for actual possession of a firearm pursuant to section775.087(2)(a) does not apply, however, to a defendant charged with possession of a firearm by adelinquent 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 bya felon, the defendant discharges a firearm or destructive device, the defendant must be sentencedto a minimum term or imprisonment of 20 years.896 The firearm must, however, be dischargedcontemporaneously with the commission of the qualifying felony.897 Section 775.087 does notrequire that the firearm discharge be done knowingly or intentionally for the minimum mandatoryimprisonment under section 775.087 to apply, and so may be applied in cases of accidental orunintentional discharge.898 Similarly, Section 775.087 does not require that the defendant fire at, orstrike, his or her intended victim in order for the defendant to be subject to this particular minimummandatory provision.899

If, as a result of the discharge, death or great bodily harm is inflicted upon any person, thedefendant must be sentenced to a minimum term of imprisonment of not less than 25 years and notmore than a term of imprisonment of life in prison.900 Note that the enhancement statute requires afinding 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.

895Potter v. State, 997 So. 2d 1215 (Fla. 1st DCA 2008).

896§ 775.087(2)(a)2, Fla. Stat.

897See, Lemus v. State, 33 So. 3d 774 (Fla. 4th DCA 2010).

898Compare, e.g., Dean v. U.S., 556 U.S. 568, 129 S. Ct. 1849, 173 L. Ed. 2d 785 (2009).

899Chavers v. State, 112 So. 3d 594 (Fla. 4th DCA 2013).

900§ 775.087(2)(a)3, Fla. Stat.

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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 theaffected offenses to life imprisonment where a firearm is discharged causing death or great bodilyharm.902 An example of this would be where a defendant is convicted of attempted second-degreemurder with a firearm, with the jury finding that the defendant actually possessed and discharged afirearm resulting in great bodily harm to the victim, the minimum mandatory range under section775.087(2)(a)(3) is 25 years to life imprisonment. Attempted second-degree murder is classified asa first degree felony under section 775.087(1)(b), and carries a maximum statutory sentence of 30years. While the sentencing court in such a situation can impose a minimum mandatory sentenceof greater than 30 years, if it imposes a minimum mandatory sentence of, for example, 25 years, itcannot impose an overall sentence of greater than 30 years for that offense. In other words, the courtcannot sentence the defendant in this example to life imprisonment with a mandatory minimum of25 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 districtmay, pursuant to the 10-20-Life statute, impose a sentence in addition to its selected mandatoryminimum sentence without regard to whether additional statutory authority for such an additionalsentence exists,905 has certified conflict with the Second,906 Fourth,9 0 7 and Fifth908 Districts whichhave held that the trial court may not impose a sentence in excess of 30 years for a first degree felonyunder 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 thecommission of the robbery, a defendant cannot be adjudicated guilty of both robbery with a firearmand possession of a firearm in the commission of the same robbery.909

901Johnson v. State, 53 So. 3d 360 (Fla. 5th DCA 2011).

902Wooden v. State, 42 So. 3d 837 (Fla. 5th DCA 2010); Yasin v. State, 896 So. 2d 875 (Fla. 5th DCA 2005).

903McLeod v. State, 52 So. 3d 784 (Fla. 5th DCA 2010).

904Flowers v. State, 69 So. 3d 1042 (Fla. 1st DCA 2011).

905Hatten v. State, 152 So. 3d 849 (Fla. 1st DCA 2014), citing Kelly v. State, 137 So. 3d 2, 6-7 (Fla. 1st DCA 2014).

906Martinez v. State, 114 So. 3d 1119, 1120 (Fla. 2d DCA 2013); Sheppard v. State, 113 So. 3d 148, 149 (Fla. 2d DCA2013); Prater v. State, 113 So. 3d 147-48 (Fla. 2d DCA 2013).

907Levine 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).

908Wooden v. State, 42 So. 3d 837 (Fla. 5th DCA 2010); Roberts v. State, — So. 3d —, 2013 WL 6687751 (Fla. 5 th DCADec. 20, 2013); Mcleod v. State, 52 So. 3d 784 (Fla. 5th DCA 2010).

909Dorsett v. State, 873 So. 2d 424 (Fla. 3d DCA 2004).

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Any defendant who is convicted of a felony or an attempt to commit a felony, regardless ofwhether the use of a firearm is an element of the felony, and the conviction was for: murder; sexualbattery; robbery; burglary; arson; aggravated assault; aggravated battery; kidnapping; escape; sale,manufacture, delivery, or intent to sell, manufacture, or deliver any controlled substance; aircraftpiracy; aggravated child abuse; aggravated abuse of an elderly person or disabled adult; unlawfulthrowing, 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, capitalimportation 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 1,4–Butanediol, trafficking inPhenethylamines, 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 ora machine gun as defined in section 790.001, must be sentenced to a minimum term of imprisonmentof 15 years.910 If, during the course of the commission of one of these felonies the defendantdischarges the weapon, the defendant must be sentenced to a minimum term of imprisonment of 20years.911 If, as a result of the discharge, death or great bodily harm is inflicted on any person, thedefendant must be sentenced to a minimum term of imprisonment of not less than 25 years and notmore 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 longersentence of incarceration as authorized by law in addition to the minimum mandatory sentence, orfrom 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 thanotherwise required by law. Notwithstanding section 948.01, adjudication of guilt or imposition ofsentence cannot be suspended, deferred, or withheld, and the defendant is not eligible for statutorygain-time under section 944.275 or any form of discretionary early release, other than pardon orexecutive clemency, or conditional medical release under section 947.149, prior to serving theminimum sentence.913

If the minimum mandatory terms of imprisonment imposed pursuant to section 775.087exceed the maximum sentences authorized by section 775.082, section 775.084, or the CriminalPunishment Code under chapter 921, then the mandatory minimum sentence must be imposed. If themandatory minimum terms of imprisonment pursuant to section 775.087 are less than the sentencesthat 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.

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Punishment Code under chapter 921, then the sentence imposed by the court must include themandatory 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 ordestructive device as those terms are defined in section 790.001, Fla. Stat.915 Under section790.001(6), the term “firearm” does not include an antique firearm unless the antique firearm is usedin the commission of a crime.916 A toy gun does not fit within the definition of firearm under the10/20/life statute.917 Where a firearm is used in the commission of a crime, the fact that the firearmis inoperable makes no difference.918 The 10/20/Life statute requires that the firearm be carried onthe person or be within immediate physical reach with ready access with the intent to use the firearmbefore 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 minimummandatory sentence for carrying a firearm during a felony offense.920 To discharge a destructivedevice for purposes of section 775.087(2) providing for a mandatory minimum 20-year sentence, thedevice must explode, that is, function as it was intended and does not misfire.921

Before a trial court can enhance a defendant’s sentence by applying the mandatory minimumsentence for use of a firearm, the grounds for enhancement must be charged in the information andthe jury must make a finding that the defendant committed the crime while using a firearm either byfinding him guilty of a crime which involves a firearm or by answering a specific question of aspecial 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).

916Margiotti v. State, 844 So. 2d 829 (Fla. 3d DCA 2003).

917Cesar v. State, 94 So. 3d 703 (Fla. 4th DCA 2012) (uncontradicted testimony by witness that the gun used by thedefendant appeared to be a toy gun precludes imposition of firearm minimum mandatory); Coley v. State, 801 So. 2d 205, 206–07(Fla. 2d DCA 2001) (holding that a BB gun is not a firearm under the 10/20/Life statute).

918Margiotti 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.

920McGill v. State, 878 So. 2d 1270 (Fla. 5th DCA 2004).

921Wallace v. State, 860 So. 2d 494 (Fla. 4th DCA 2003).

922State 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 defendant’s useof 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)).

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for a requested enhancement and the statute authorizing the requested enhancement; mere referencein the charging document to the statute is insufficient to provide notice to the defendant that the Stateis seeking the specific enhancement.923 An information does not have to refer to section 775.087 forthe enhancement to apply, as long as it alleges the use of a firearm.924 The verdict must also reflecta “clear jury finding” that the defendant used a firearm before the defendant’s sentence may beenhanced.925 This requisite “clear jury finding” can be demonstrated either by (1) a specific questionor special verdict form, which is the better practice, or (2) the inclusion of a reference to a firearmin 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 thatthe defendant is guilty as charged does not support reclassification of the crime under section775.087(1) and the associated enhancement because there is no specific jury finding that thedefendant used a firearm.927 Moreover, an “as charged” verdict will not support the imposition ofa minimum mandatory sentence under section 775.087(2) when the verdict fails to reflect that thedefendant was in actual, as opposed to constructive, possession of a firearm.928 The phrase “with afirearm, as charged” on the verdict form incorporates the factual allegation that the defendantpossessed a firearm, which would justify imposition of a 10–year minimum mandatory sentenceunder the enhancement provision in section 775.087(2)(a)(1), Fla. Stat., but does not constitute afactual 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) and777.04,” and does not allege that the defendant discharged the firearm, a jury finding that thedefendant discharged a firearm is sufficient to trigger the 10-year minimum mandatory provision ofsection 775.087(2)(a)1., Fla. Stat., for “possession” of the firearm as that factor was contained in thecharging document, but is insufficient to trigger the 20–year minimum mandatory provision ofsection 775.087(2)(a)2., Fla. Stat., for “discharge” of the firearm.930 The charging document muststate, and the jury must specifically find, that the defendant discharged the firearm for imposition

923See, Freudenberger v. State, 940 So. 2d 551 (Fla. 2d DCA 2006); Inmon v. State, 932 So. 2d 518 (Fla. 4th DCA 2006).

924Bundrage v. State, 814 So. 2d 1133 (Fla. 2d DCA 2002).

925Orjales 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).

926See Roberts v. State, 152 So. 3d 669 (Fla. 4th DCA 2014), and cases cited therein.

927See, Toro v. State, 691 So. 2d 576, 577 (Fla. 2d DCA 1997).

928Henry v. State, 834 So. 2d 406, 407 (Fla. 2d DCA 2003); see, Thompson v. State, 862 So. 2d 955 (Fla. 2d DCA 2004).

929Muldrow v. State, 842 So. 2d 240 (Fla. 2d DCA 2003).

930Bell v. State, 876 So. 2d 712 (Fla. 4th DCA 2004).

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of the 20–year minimum mandatory sentence.931 The finding of the jury does not have to exactlymatch the statutory language, and a jury finding of “serious bodily injury” is synonymous with “greatbodily 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 defendantdischarged the firearm and as a result inflicted death or great bodily harm upon a person to supportimposition of the 25–year minimum mandatory-to-life sentence under that subparagraph of thestatute.933 The same logic applies to the 15/20/25–to-Life provisions of subparagraph (3) of thestatute, pertaining to semiautomatic firearms with high-capacity box magazines and machine guns. The special verdict form–not allegations in an information–indicates when a jury finds a weapon hasbeen used.934

Where the crime charged is aggravated battery either by great bodily harm or use of a deadlyweapon, 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 isan essential element of the crime and reclassification is not permitted.935 Where it is unclear whetherthe defendant was found guilty of aggravated battery based on great bodily harm or the use of adeadly weapon, reclassification is not permitted.936

Section 775.087 does not define what “use” of a weapon or firearm means for purposes ofmandatory minimum sentencing, and the term has not otherwise been clarified by the courts ofFlorida. The United States Supreme Court has interpreted the term in comparable federal laws tomean, for example, that a defendant who trades his or her firearm for drugs does “use” thatfirearm,937 a defendant who trades his or her drugs for a firearm does not “use” the firearm,938 and

931See, Koch v. State, 874 So. 2d 606 (Fla. 5th DCA 2004).

932Mendenhall v. State, 999 So. 2d 665 (Fla. 5th DCA 2008), decision approved, 48 So. 3d 740 (Fla. 2010), approvedMendenhall v. State, 48 So. 3d 740 (Fla. 2010).

933See, Adams v. State, 916 So. 2d 36 (Fla. 2d DCA 2005) (reversal of 25–year minimum mandatory sentence under section775.087(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).

934State v. Tripp, 642 So. 2d 728 (Fla. 1994).

935Crawford v. State, 858 So. 2d 1131 (Fla. 2d DCA 2003).

936Perry v. State, 858 So. 2d 1270 (Fla. 1st DCA 2003); Montgomery v. State, 704 So. 2d 548, 550–51 (Fla. 1st DCA 1997).

937Smith v. U.S., 508 U.S. 223, 113 S. Ct. 2050, 124 L. Ed. 2d 138 (1993).

938Watson v. U.S., 552 U.S. 74, 128 S. Ct. 579, 169 L. Ed. 2d 472 (2007).

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a defendant who has a firearm nearby during a drug transaction does not “use” the firearm withoutsomething more than mere possession.939

The stated intent of the Legislature is that defendants convicted of firearms offenses shouldbe punished to the fullest extent of the law, and the court is commanded to impose any term ofimprisonment provided for in this subsection “consecutively to any other term of imprisonmentimposed for any other felony offense.”940 The “any other” language in section 775.087 mandatingsentences consecutive to any other term of imprisonment imposed for any other felony offense, ifthe defendant possesses, carries, displays, uses, threatens to use, or attempts to use firearms, doesnot limit the statute to crimes which take place at different times; the statute thus does not precludea trial court from imposing consecutive mandatory minimum sentences unless the other felonyoffenses occurred during a different criminal episode.941

The Fifth District Court of Appeals has taken the position that the imposition of consecutiveminimum mandatory sentences under section 775.087(2) is improper where the offenses occurredduring a single criminal episode, unless the defendant discharges the firearm and injures multiplevictims or causes multiple injuries to one victim.9 4 2 The First District has recently adopted theposition that stacking minimum mandatory sentences under section 775.087(2) is mandated undersuch circumstances.943 The Fourth District has recently adopted the position that the trial court isrequired to impose consecutive sentences for each qualifying felony in accordance with the plainlanguage of section 775.087(2)(d), whether or not a firearm is discharged.944 Where the defendantis convicted of multiple offenses that have occurred in separate criminal episodes and one of theoffenses carries a minimum mandatory sentence pursuant to the 10/20/Life statute (as where adefendant on probation for one offense commits two new offenses, and one of the new offensescarries a minimum mandatory term of imprisonment under the 10/20/Life statute), the sentencingcourt must sentence the 10/20/Life offense consecutively to the other new offense and may also runthe violation of probation sentence consecutively to the new offenses.945

939Bailey 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.

941State v. Sousa, 903 So. 2d 923 (Fla. 2005).

942Swanigan v. State, 57 So. 3d 989 (Fla. 5th DCA 2011); Valentin v. State, 963 So. 2d 317, 319–20 (Fla. 5th DCA 2007).

943Walton 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).


945State v. Sousa, 903 So. 2d 923 (Fla. 2005); State v. Christian, 692 So. 2d 889 (Fla. 1997).

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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 ofmandatory minimum sentencing in section 775.087(2)(a)1. is not interchangeable. In order to imposethe mandatory minimum sentence the State must allege in the Information that the defendant didactually possess a firearm and, to reclassify the level of offense where a firearm is involved, the Statemust 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 section775.087(1) cannot be used on the verdict form for purposes of imposing the firearm mandatoryminimum sentence and the language of section 775.087(2)(a)1. cannot be used for purposes ofreclassification. This means, for example, that a jury finding that the defendant actually possesseda 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 violationof section 787.025(2)(c); section 794.011(2), (3), (4), (5), or (8); section 800.04(4) or (5); section825.1025(2) or (3); section 827.071(2), (3), or (4); or section 847.0145; or of any similar offenseunder a former designation, which offense the person committed when he or she was 18 years of ageor older, and the person: (a) caused serious personal injury to the victim as a result of thecommission of the offense;947 (b) used or threatened to use a deadly weapon during the commissionof the offense;948 (c) victimized more than one person during the course of the criminal episodeapplicable to the offense;9 4 9 (d) committed the offense while under the jurisdiction of a court for afelony offense under the laws of this state, for an offense that is a felony in another jurisdiction, orfor an offense that would be a felony if that offense were committed in this state;950 or (e) haspreviously 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); section847.0145; of any offense under a former statutory designation which is similar in elements to anoffense described in this paragraph; or of any offense that is a felony in another jurisdiction, or wouldbe a felony if that offense were committed in Florida, and which is similar in elements to an offensedescribed in section 794.0115(3).951 A DSFO must be sentenced to a mandatory minimum term of25 years imprisonment up to, and including, life imprisonment. If the offense described in this

946Green 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.

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subsection was committed on or after October 1, 2014, a person who qualifies as a dangerous sexualfelony offender pursuant to subsection 794.0115(2) must be sentenced to a mandatory minimum termof 50 years imprisonment up to, and including, life imprisonment.952 The phrase “under thejurisdiction of a court for a felony offense” includes probation.953

“Serious personal injury” means great bodily harm or pain, permanent disability, orpermanent disfigurement.954 The offense described in subsection 794.0115(2) which is beingcharged must have been committed after the date of commission of the last prior conviction for anoffense that is a prior conviction described in section 794.0115(2)(e).9 5 5 It is irrelevant that a factorlisted in subsection 794.0115(2) is an element of an offense described in that subsection. It is alsoirrelevant that such an offense was reclassified to a higher felony degree under section 794.023 orany other law.956 A prior nolo contendere plea and a withhold of adjudication for a qualifyingoffense constitutes a prior “conviction” for purposes of the Dangerous Sexual Felony OffenderAct.957

Notwithstanding section 775.082(3), chapter 958, any other law, or any interpretation orconstruction thereof, a person subject to sentencing as a DSFO under section 794.0115 must besentenced to the mandatory term of imprisonment provided under that section. If the mandatoryminimum term of imprisonment imposed under that section exceeds the maximum sentenceauthorized under section 775.082, section 775.084, or chapter 921, the mandatory minimum termof imprisonment under section 794.0115 must be imposed. If the mandatory minimum term ofimprisonment under section 794.0115 is less than the sentence that could be imposed under section775.082, section 775.084, or chapter 921, the sentence imposed must include the mandatoryminimum term of imprisonment under section 794.0115.958 A defendant sentenced to a mandatoryminimum term of imprisonment under section 794.0115 is not eligible for statutory gain-time undersection 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.

953Williams 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.

957State v. Mason, 979 So. 2d 301 (Fla. 5th DCA 2008).

958§ 794.0115(6), Fla. Stat.

959§ 794.0115(7), Fla. Stat.

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Unlike habitual offender sentencing, where the state must file a notice of its intent to seekhabitual offender sentencing,960 and the court has some discretion in the determination of habitualoffender status,961 no discretion exists under section 794.0115. If the defendant is convicted of aqualifying offense and has a prior qualifying offense, a mandatory sentence of 25 years to life isimposed. So as to make its intention unmistakable, the legislature also provided that this mandatorysentence 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 pleaand is under no duty to apprise him or her of any collateral consequences. A direct consequence isone that has a definite, immediate, and largely automatic effect on the range of the defendant’spunishment.963 A collateral consequence is one that does not.964 There are, nonetheless, a numberof court-imposed special sanctions and other consequences not imposed by the court that complicatematters beyond the formal sentence imposed on a defendant.

Outside of the realm of “punishment” and “sentence” are a number of “civil” administrativeand regulatory sanctions, including incarceration, that the trial court can, and in some cases must,impose on a defendant. While not strictly part of the defendant’s punishment, it is important thatthe practitioner be aware of these special sanctions, which may be the direct or collateral result ofa negotiated plea or conviction after trial. Although imposed by the criminal courts, these sanctionsare outside the Florida Rules of Criminal Procedure and many of the constitutional rights normallyattendant to traditional criminal punishment and sentencing, such as the right against self-incrimination 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, whileother involve important privileges, such as the privilege to drive a motor vehicle on the roads of

960See, Ashley v. State, 614 So. 2d 486 (Fla. 1993).

961See, § 775.084(4)(e), Fla. Stat. (court may find that habitual offender designation is not necessary for the protection ofthe public).

962§ 794.0115(6), Fla. Stat.; see, Abrams v. State, 971 So. 2d 1033 (Fla. 4th DCA 2008).

963Major v. State, 814 So. 2d 424 (Fla. 2002).

964State v. Partlow, 840 So. 2d 1040 (Fla. 2003) (statutory sex offender registration is a collateral consequence of a plea).

965See, e.g., State v. Colley, 744 So. 2d 1172 (Fla. 2d DCA 1999) (in general, the rules of criminal procedure do not applyto sexual predator designations); but see, In re Beverly, 342 So. 2d 481, 489, 97 A.L.R.3d 767 (Fla. 1977) (“ The subject of aninvoluntary civil commitment proceeding has the right to the effective assistance of counsel at all significant stages of the commitmentprocess.”).

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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 anexpress legislative statement to the contrary, an enactment that affects substantive rights or createsnew obligations or liabilities is presumed to apply prospectively.”967 Where the Legislature electsto 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 sanctionsinvolves recognition of the circumstances under which they may or may not be imposed, the long-term implications of these sanctions, competence in the Florida Rules of Civil Procedure or otherunique procedural rules that are attendant with their imposition, and the ability to recognize whethera 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 statutoryconstruction.968 A court must first ask whether the legislature, in establishing the penalizingmechanism, indicated either expressly or impliedly a preference for one label or the other.969 Evenin those cases where the legislature has indicated an intention to establish a civil penalty, the UnitedStates Supreme Court has inquired further whether the statutory scheme was so punitive either inpurpose or effect as to transform what was clearly intended as a civil remedy into a criminalpenalty.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 orrestraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into playonly on a finding of scienter; (4) whether its operation will promote the traditional aims ofpunishment—retribution and deterrence; (5) whether the behavior to which it applies is already acrime; (6) whether an alternative purpose to which it rationally may be connected is assignable forit; 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

966See generally, Chase Securities Corp. v. Donaldson, 325 U.S. 304, 312 n.8, 315–316, 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).

967Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996).

968Helvering 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).

969U.S. v. Ward, 448 U.S. 242, 100 S. Ct. 2636, 65 L. Ed. 2d 742, 14 Env’t. Rep. Cas. (BNA) 1673, 10 Envtl. L. Rep. 20477(1980).

970Rex Trailer Co. v. U.S., 350 U.S. 148, 76 S. Ct. 219, 100 L. Ed. 149 (1956).

971Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963).

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suffice to override legislative intent and transform what has been denominated a civil remedy intoa criminal penalty.972

Examples of such court-imposed non-punitive sanctions that illustrate this aspect ofsentencing law include driver’s license revocations,973 the registration and reporting requirementsfor sexual offenders and sexual predators, and involuntary civil commitment under the Baker Actand the Jimmy Ryce Act.

DNA testing

Each qualifying offender is required to submit a DNA sample at the time he or she is bookedinto 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 thesupervision of the Department of Corrections, including persons incarcerated in a privatecorrectional institution operated under contract pursuant to section 944.105; committed to or underthe supervision of the Department of Juvenile Justice; transferred to Florida under the InterstateCompact on Juveniles, part XIII of chapter 985; or accepted under Article IV of the InterstateCorrections Compact, part III of chapter 941, and who is: convicted of any felony offense orattempted felony offense in Florida state or of a similar offense in another jurisdiction; convicted ofa misdemeanor violation of section 784.048, 810.14, 847.011, 847.013, 847.0135, or 877.26, or anoffense that was found, pursuant to section 874.04, to have been committed for the purpose ofbenefitting, 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 felonyoffense or attempted felony offense in Florida are subject to sufficient funding appropriations passedby 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.

972Hudson 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 andoccupational disbarment imposed by Office of the Comptroller of the Currency are not criminal punishment for purposes of double

jeopardy).

973Bolware v. State, 995 So. 2d 268 (Fla. 2008).

974§ 943.325(3), Fla. Stat.

975§ 943.325(2)(g), Fla. Stat.

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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) onprobation, community control, parole, conditional release, control release, or any other type of court-ordered supervision in Florida, is required to submit a DNA sample to a Florida Department of LawEnforcement (FDLE)-designated facility.977 Arrested qualifying offenders must submit a DNAsample 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 submitrequired DNA samples not less than 45 days before their presumptive date of release from suchincarceration or commitment.979 Upon the conviction of any qualifying offender which results in thecommitment of the offender to a county jail, correctional facility, or juvenile facility, the entityresponsible for the jail or facility shall ensure that a DNA sample is promptly secured andtransmitted to FDLE.980 Personnel at the jail, correctional facility, or juvenile facility shall collectthe DNA samples as part of the regular processing of qualifying offenders committed to the jail orfacility.981 If a qualifying offender is not incarcerated following conviction, that offender may notbe released from the custody of the court at the time of sentencing or released pursuant to a bond orsurety until the DNA sample required by section 943.325 has been taken by the sheriff or his or herdesignee. The sheriff is required to secure, process, and transmit the DNA sample to FDLE in atimely manner.982

Note that a defendant, who has completed his or her sentence and is neither incarcerated orunder any form of court-ordered supervision, does not fall within the plain language of the statute’spurview and so cannot be compelled to submit a specimen of his or her blood or other biologicalspecimens 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.

983See, Smith v. State, 955 So. 2d 21 (Fla. 3d DCA 2006).

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Unless the department determines that a person is otherwise required by law to submit aDNA sample for inclusion in the statewide DNA database, FDLE is required, upon receipt andcompletion 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 biologicalsamples that may have been retained of a person included therein: (a) On the basis of a convictionfor a qualifying offense specified in section 945.325(2)(g)2., if the department receives, from theperson seeking removal of DNA information from the statewide DNA database, for each qualifyingoffense, a certified copy of a final court order establishing that such conviction has been overturnedon direct appeal or set aside in a postconviction proceeding; or (b) On the basis of an arrest, if thedepartment receives from the person seeking removal of DNA information from the statewide DNAdatabase, for each charge against the person on the basis of which the analysis was or could havebeen included in the statewide DNA database, a certified copy of the No Information or NolleProsequi filed by the state attorney, or final court order or other official documentation establishingthat such charge has been dismissed or has resulted in an acquittal or that no charge was filed withinthe applicable time period. For purposes of section 945.325(2)(g)2., a court order is not final if timeremains for an appeal or application for discretionary review with respect to the order, or if a casehas been remanded for retrial or other proceedings and has not been resolved after remand, or timeremains for appeal or discretionary review of the remanded case or any other such proceedings thathave 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 withcriminal sanctions at sentencing is revocation of the defendant’s driver license. A person’s drivinglicense can be revoked for varying length of time upon conviction for crimes such as DUI and drugpossession. A common misperception among practitioners is as to the extent of the trial court’sability to revoke a driver license, especially in DUI cases.

Section 316.655(2), Fla. Stat., provides that a driver convicted of any offense prohibited bychapter 316, Fla. Stat. or any other law in Florida regulating motor vehicles, which resulted in anaccident may have his or her driving privilege revoked or suspended by the court if the court findssuch revocation or suspension warranted by the totality of the circumstances resulting in theconviction and the need to provide the maximum safety for all persons who travel on or who areotherwise affected by the use of the highways of the state. Pertinent factors to be considered by thecourt 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 injuredas a result of the driver’s violation of chapter 316, and the extent of any property damage resultingfrom the driver’s 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.

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to suspend or revoke a defendant’s driver license along with imposing sentence for DUI for (1) atleast 180 days and not more than one year for the first DUI conviction, (2) at least five years for aDUI that occurs within five years after the date of a prior conviction for DUI, and (3) at least 10years for a third DUI that occurs within a period of 10 years after the date of a prior conviction forDUI. The time periods for recidivist DUI license revocation are floors and not ceilings, and nothingin section 322.28(a)2 and 3 prohibits a court from imposing a term of suspension or revocationlonger 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 permanentrevocation if warranted by the circumstances.987

Section 322.055(1), Fla. Stat., provides that, notwithstanding the provisions of section322.28, 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 theDepartment of Highway Safety and Motor Vehicles (DHSMV) to revoke the driver license or drivingprivileges of the person for two years or until the person is evaluated for and, if deemed necessaryby the evaluating agency, completes a drug treatment and rehabilitative program approved orregulated by the Department of Children and Family Services (DCF). Section 322.055(2) providesthat if such person so convicted does not have a license but is eligible by reason of age for a driverlicense or privilege, the court is required to direct DHSMV to withhold issuance of such person'sdriving license or driving privilege for a period of 1 year after the date the person was convicted oruntil the person is evaluated for and, if deemed necessary by the evaluating agency, completes a drugtreatment and rehabilitative program approved or regulated by DCF. Section 322.055(3) providesthat, if the person’s driver license or driving privilege are already under suspension at the time ofconviction, the court will direct DHSMV to impose an additional 1 year suspension, subject to thesame provisions for drug treatment and rehabilitation as in the other sections of this law. Section322.055(4) provides that if the person so convicted is ineligible by reason of age for a driver licenseor driving privilege, the court is required to direct DHSMV to withhold issuance of such person’sdriver license or driving privilege for a period of 1 year after the date that he or she would otherwisehave become eligible or until he or she becomes eligible by reason of age for a driver license and isevaluated for and, if deemed necessary by the evaluating agency, completes a drug treatment andrehabilitative program approved or regulated by DCF. The court has the discretion, in all casesarising under subsections (1) through (4) of this law, to direct DHSMV to issue a license for drivingprivilege restricted to business or employment purposes as defined by section 322.271, if the personis otherwise qualified for such a license. Comparable provisions applicable to persons under age 18years are found in section 322.056. A court that orders the revocation or suspension of, or delay ineligibility for, a driver license pursuant to section 322.055 is required to make a specific, articulated

986§ 316.655(2), Fla. Stat.

987Stoletz v. State, 875 So. 2d 572 (Fla. 2004).

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determination as to whether the issuance of a license for driving privilege restricted to businesspurposes 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 ordismissal, in addition to any other sentence imposed, the court must revoke the person’s driverlicense or driving privilege, effective upon the date of the disposition, for a period of not less thanone year. A person sentenced under section 322.28(7) may request a hearing under section322.271.989

Except as provided in section 812.0155(2) and (3), the court may order the suspension of thedriver license of each person adjudicated guilty of any misdemeanor violation of section 812.014 orsection 812.015, regardless of the value of the property stolen. Upon ordering the suspension of thedriver license of the person adjudicated guilty, the court must forward the driver license of the personadjudicated guilty to the Department of Highway Safety and Motor Vehicles in accordance withsection 322.25.990 The first suspension of a driver license under section 812.0155(1) must be for aperiod of up to 6 months.991 A second or subsequent suspension of a driver license under section812.0155(1) must be for 1 year.992 The court may revoke, suspend, or withhold issuance of a driverlicense of a person less than 18 years of age who violates section 812.014 or section 812.015 as analternative to sentencing the person to:

1. Probation as defined in section 985.03 or commitment to the Department of JuvenileJustice, if the person is adjudicated delinquent for such violation and has not previously beenconvicted of or adjudicated delinquent for any criminal offense, regardless of whether adjudicationwas 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 convictedas an adult of such violation and has not previously been convicted of or adjudicated delinquent forany 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.

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As used in section 812.0155(3), the term “department” means the Department of HighwaySafety and Motor Vehicles. A court that revokes, suspends, or withholds issuance of a driver licenseunder section 812.0155(2) must:

1. If the person is eligible by reason of age for a driver license or driving privilege, direct thedepartment to revoke or withhold issuance of the person’s driver license or driving privilege for notless than 6 months and not more than 1 year;995

2. If the person’s driver license is under suspension or revocation for any reason, direct thedepartment to extend the period of suspension or revocation by not less than 6 months and not morethan 1 year;996 or

3. If the person is ineligible by reason of age for a driver license or driving privilege, directthe department to withhold issuance of the person's driver license or driving privilege for not lessthan 6 months and not more than 1 year after the date on which the person would otherwise becomeeligible.997

Sections 812.0155(2) and (3) do not preclude the court from imposing any sanction specifiedor not specified in 812.0155(2) or (3).998 A court that suspends the driver license of a personpursuant to 812.0155(1) may direct the Department of Highway Safety and Motor Vehicles to issuethe person a license for driving privilege restricted to business purposes only, as defined in section322.271, if he or she is otherwise qualified.999

The court must permanently revoke the driver license or driving privilege of a person whohas been convicted of murder resulting from the operation of a motor vehicle. No driver license ordriving privilege may be issued or granted to any such person.1000

The sentencing court is required to determine whether the defendant understands that if thedefendant pleads guilty or nolo contendere and the offense to which the defendant is pleading is onefor 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.

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imposed (either by the court or by a separate agency), the plea will provide the basis for thesuspension or revocation of the defendant’s 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 lawsof Florida, or that would be punishable if committed in Florida, by death or imprisonment in the stateprison system,1002 the civil rights of the person convicted are suspended in Florida until such rightsare 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 anycourt of record and who has not had his or her right to vote restored pursuant to law is not entitledto register or vote pursuant to the Florida Election Code or to hold public office.1004 A convictedfelon 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 barredfrom obtaining professional licenses, and a person who has a professional license and is convictedof a crime may have his or her license revoked by the relevant regulatory agency. Conviction of acrime may also result in disqualification to hold a government job and other limits on employmentopportunities.

Registration of convicted felons

Any person who has been convicted of a felony in any court in Florida is required, within 48hours after entering any county in Florida, to register with the sheriff of that county, be fingerprintedand 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 anyperson who has been convicted of a crime in any federal court or in any court other than a Floridacourt, or in any foreign state or country, which crime if committed in Florida would be a felony.1008

1001Fla. 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 underthe 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.

1004Art 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.

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“Conviction” in this sense means a determination of guilt which is the result of a trial or the entryof 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 afelony conviction for more than five years prior to such time for registration, unless the person is afugitive from justice on a felony charge or has been convicted of any offense since release from suchincarceration or other sentence of supervision;1012

4. Is a parolee or probationer under the supervision of the United States Parole Commissionif the commission knows of and consents to the presence of the person in Florida or is a probationerunder the supervision of any federal probation officer in the state or who has been lawfullydischarged 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 section944.607;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.

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With regard to any felon who has been found, pursuant to section 874.04, to have committedany 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 section775.13 is a misdemeanor of the second degree.1018

Forfeiture

One of the foremost civil consequences of a defendant's engagement in criminal activity isforfeiture of property used, attempted to be used, or intended to be used in the commission of acrime. Under the Florida Contraband Forfeiture Act1019 and other statutes,1020 such property can beseized by and forfeited to the state if the state can establish by a preponderance of the evidence thatthe defendant knew, or should have known after a reasonable inquiry, that the property was beingemployed or was likely to be employed in a criminal activity.1021

Under the Florida Contraband Forfeiture Act, articles falling within the definition ofcontraband 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 adversarialpreliminary hearing.1023 If requested, the circuit court must hold a hearing and determine whetherthere is probable cause to believe that the property is subject to forfeiture.1024

Note that the Florida Contraband Forfeiture Act does not preempt municipalities fromadopting ordinances authorizing the seizure and impoundment of vehicles used in the commissionof enumerated misdemeanor offenses. Although impoundment and forfeiture are related conceptsin 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.

1020See, for example, § 322.34(9)(a), Fla. Stat. (forfeiture of motor vehicle being driven by DUI driver driving on a priorDUI 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 countydetention 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, 965–66 (Fla.1991).

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Essentially, an impoundment is the temporary taking of tangible, personal property; a forfeiture isthe permanent taking of real of personal property (tangible or intangible). Forfeitures are designedprimarily to confiscate property used in violation of the law, and to require disgorgement of the fruitsof illegal conduct. Impoundment, on the other hand, is to place something in the custody of thepolice or the courts, often with the understanding that it will be returned intact at the end of theproceeding. Where, for instance, impoundment is normally a temporary deprivation of one’sproperty until one pays a fee to release it, which is in the nature of a civil penalty, forfeiture seeksto 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 toanother: section 794.011, relating to sexual battery;1026 section 826.04, relating to incest;1027 section800.04, relating to lewd or lascivious offenses committed upon or in the presence of persons lessthan 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), and784.08(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 ofan elderly person or disabled adult;1035 section 825.102(2), relating to aggravated abuse of an elderly

1025See, 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.

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person or disabled adult;1036 section 827.071, relating to sexual performance by person less than 18years 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 toundergo HIV testing, to be performed under the direction of the Department of Health in accordancewith section 381.004, unless the defendant has undergone HIV testing voluntarily or pursuant toprocedures established in section 381.004(3) (h) 6. or section 951.27, or any other applicable law orrule providing for HIV testing of criminal offenders or inmates, subsequent to her or his arrest foran offense enumerated in section 775.0877(1)(a) to (n) for which she or he was convicted or to whichshe or he pled nolo contendere or guilty. The results of an HIV test performed on a defendantpursuant to section 775.0877(1) are not admissible in any criminal proceeding arising out of thealleged offense.1040 The results of the HIV test must be disclosed under the direction of theDepartment of Health, to the defendant who has been convicted of or pled nolo contendere or guiltyto an offense specified in section 775.0877(1), the public health agency of the county in which theconviction occurred and, if different, the county of residence of the defendant, and, upon requestpursuant to section 960.003, to the victim or the victim’s legal guardian, or the parent or legalguardian 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 thesentencing court may in its discretion sentence the defendant to be treated with medroxyprogesteroneacetate (MPA), more commonly known as “chemical castration,” according to a schedule ofadministration monitored by the Department of Corrections.1042 When the defendant has beenconvicted of sexual battery as described in section 794.011 and has a prior conviction of sexualbattery under section 794.011, the sentencing court must sentence the defendant to such treatmentwith MPA.1 043 A “prior conviction” in this sense means a conviction for which sentence wasimposed 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.

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sentenced separately from any other conviction that is to be counted as a prior conviction undersection 794.0235.1044 If the court sentences a defendant to be treated with MPA, the penalty may notbe imposed in lieu of, or reduce, any other penalty prescribed under section 794.011. However, inlieu of treatment with MPA, the court may order the defendant to undergo physical castration uponwritten motion by the defendant providing the defendant’s intelligent, knowing, and voluntaryconsent to physical castration as an alternative penalty.1045 An order of the court sentencing adefendant to MPA treatment under section 794.0235(1) “shall” be contingent upon a determinationby 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 theimposition of sentence.1046 Notwithstanding the statutory maximum periods of incarceration asprovided in section 775.082, an order of the court sentencing a defendant to MPA treatment mustspecify the duration of treatment for a specific term of years, or in the discretion of the court, up tothe 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 tothe defendant’s release from prison or other institution.1048 The Department of Corrections isrequired to provide the services necessary to administer MPA treatment, but section 794.0235 doesnot 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 appearas required by the Department of Corrections for purposes of administering the MPA or allow theadministration of MPA, the defendant is guilty of a felony of the second degree, punishable asprovided 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, asentence to administration of MPA under Sec. 794.0235 is not remedial treatment but does constitutepunishment, and that where a defendant’s sentence includes the imposition to impose MPAinjections 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.

1046Jackson v. State, 907 So. 2d 696 (Fla. 4th DCA 2005) (statutory directive that defendant receive medical examinationwithin 60 days of imposition of his sentence for sexual offenses in order to determine his suitability for chemical castration, asprerequisite to imposition of sentence of MPA 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 trialcourt appoint a medical expert to opine on whether defendant is an appropriate candidate for chemical castration treatment, and thattrial court specify in the sent 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.

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ruling pending evaluation from a court-appointed expert, the subsequent imposition of a requirementfor MPA injections for a set duration is an illegal increase in the defendant’s sentence and constitutesa violation of the constitutional prohibition against double jeopardy.1051

Sexual offender/sexual predator sanctions

Florida’s laws regulating persons deemed to be sexual offenders and sexual predators areprimarily registration and reporting statutes. Such statutes are regulatory in nature and do notconstitute punishment subject to constitutional ex post facto challenges.1052 Because a sexualoffender or sexual predator designation is not a sentence or a punishment, it does not interfere withthe power of an appellate court to dispose of issues relating to the appellant’s conviction andsentence 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, anyof the criminal offenses proscribed in the following statutes in Florida or similar offenses in anotherjurisdiction: section 393.135(2); section 394.4593(2); section 787.01, section 787.02, or section787.025(2)(c), where the victim is a minor and the defendant is not the victim’s parent or guardian;section 787.06(3)(b), (d), (f), or (g); former section 787.06(3)(h); section 794.011, excluding section794.011(10); section 794.05; former section 796.03; section 796.035; section 800.04; section810.145(8); section 825.1025; section 827.071; section 847.0133; section 847.0135, excludingsection 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 froma former statute number to one of those listed in section 943.0435(1)(a)1.a.;1054 and has been releasedon or after October 1, 1997, from the sanction imposed for any conviction of an offense describedin section 943.0435(1)(a)1.a.I. Note that the predicate offense must have a concomitant sexualcomponent, and that the defendant may not be designated as a sexual offender where the crime istotally devoid of a sexual component. The State is not required to prove, however, that the crime

1051Tran v. State, 965 So. 2d 226 (Fla. 4th DCA 2007).

1052See, 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)).

1053Breitberg v. State, 14 So. 3d 1253 (Fla. 4th DCA 2009).

1054§ 943.0435(1)(a)1.a.I, Fla. Stat.

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has a sexual component; the burden is on the defendant to show that it does not.1055 For purposesof 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, controlrelease, or incarceration in a state prison, federal prison, private correctional facility, or localdetention facility;1056 or

2. Establishes or maintains a residence in Florida and who has not been designated as asexual predator by a court of Florida but who has been designated as a sexual predator, as a sexuallyviolent 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 theperson 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, orunder 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 thefollowing 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 thedefendant is not the victim’s parent or guardian; section 787.06(3)(b), (d), (f), or (g); former section787.06(3)(h); section 794.011, excluding section 794.011(10); section 794.05; former section796.03; former section 796.035; section 800.04; section 810.145(8); section 825.1025; section827.071; 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 similaroffense committed in Florida which has been redesignated from a former statute number to one ofthose 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 statutesin Florida or similar offenses in another jurisdiction when the juvenile was 14 years of age or olderat 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 forceor 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

1055See 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.

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For all qualifying offenses listed in section 943.0435(1)(a)1.d., the court must make a written findingof 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 aviolation of section 794.011, the court must make a written finding of the age of the victim at thetime of the offense. For a violation of section 800.04(4), the court must also make a written findingindicating whether the offense involved sexual activity and indicating whether the offense involvedforce or coercion. For a violation of section 800.04(5), the court must also make a written findingthat the offense did or did not involve unclothed genitals or genital area and that the offense did ordid 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 theentry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld, andincludes an adjudication of delinquency of a juvenile as specified in this section. Conviction of asimilar offense includes, but is not limited to, a conviction by a federal or military tribunal, includingcourtsmartial conducted by the Armed Forces of the United States, and includes a conviction or entryof a plea of guilty or nolo contendere resulting in a sanction in any state of the United States or otherjurisdiction. 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, privatecorrectional facility, or local detention facility.1062

“Released” means release from lawful custody, and not release from actual custody. Thestatutory registration and reporting requirements of section 943.0435 do not apply to a defendantwho is physically released from custody after the effective date of the statute under the terms of anillegal sentence which, when corrected, would have resulted in a release date prior to the statute’seffective date.1063 A sentence that was illegal at time of its imposition but which was subsequentlycorrected properly can, however, serve as basis for imposition of sex offender registration andreporting requirements where the defendant was actually released from custody after the registrationand reporting statute’s effective date, where the defendant’s release prior to the effective date of theregistration and reporting statute could only have been accomplished through operation ofadministrative 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.

1063See, Ellerby v. State, 5 So. 3d 795 (Fla. 2d DCA 2009).

1064Newsom v. State, 869 So. 2d 619 (Fla. 5th DCA 2004).

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A sexual offender is required to report in person at the sheriff’s office: (1) in the county inwhich the offender establishes or maintains a permanent, temporary, or transient residence within48 hours after establishing permanent, temporary, or transient residence in Florida; or being releasedfrom the custody, control, or supervision of the Department of Corrections or from the custody ofa private correctional facility;1065 or (2) in the county where he or she was convicted within 48 hoursafter being convicted for a qualifying offense for registration under section 943.0435 if the offenderis not in the custody or control of, or under the supervision of, the Department of Corrections, or isnot in the custody of a private correctional facility.10 6 6 Any change in the information required to beprovided pursuant to section 943.0435(2)(b), including, but not limited to, any change in the sexualoffender’s permanent, temporary, or transient residence, name, electronic mail addresses, or Internetidentifiers required to be provided pursuant to section 943.0435(4)(e), after the sexual offenderreports in person at the sheriff’s office, must be accomplished in the manner provided in sections843.0435(4), (7), and (8).1067

A sexual offender is also required to provide his or her name; date of birth; social securitynumber; 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 legalresidence or address of any current temporary residence, within Florida or out of state, including arural route address and a post office box; if no permanent or temporary address, any transientresidence within Florida, address, location or description, and dates of any current or known futuretemporary residence within Florida or out of state; the make, model, color, vehicle identificationnumber (VIN), and license tag number of all vehicles owned; all home telephone numbers andcellular telephone numbers; all electronic mail addresses and all Internet identifiers required to beprovided pursuant to paragraph (4)(c); date and place of each conviction; and a brief description ofthe crime or crimes committed by the offender. A post office box may not be provided in lieu of aphysical residential address. The sexual offender must also produce his or her passport, if he or shehas a passport, and, if he or she is an alien, must produce or provide information about documentsestablishing his or her immigration status. The sexual offender must also provide information aboutany professional licenses he or she has.1068

If the sexual offender’s place of residence is a motor vehicle, trailer, mobile home, ormanufactured home, as defined in chapter 320, the sexual offender must also provide to thedepartment through the sheriff’s office written notice of the vehicle identification number; thelicense tag number; the registration number; and a description, including color scheme, of the motorvehicle, trailer, mobile home, or manufactured home. If the sexual offender’s 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.

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a vessel, live-aboard vessel, or houseboat, as defined in chapter 327, the sexual offender must alsoprovide to the department written notice of the hull identification number; the manufacturer’s serialnumber; the name of the vessel, live-aboard vessel, or houseboat; the registration number; and adescription, 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 aninstitution of higher education in Florida, the sexual offender must also provide to the departmentthrough the sheriff’s office the name, address, and county of each institution, including each campusattended, and the sexual offender’s enrollment, volunteer, or employment status. Each change inenrollment, volunteer, or employment status must be reported in person at the sheriff’s office, within48 hours after any change in status. The sheriff must promptly notify each institution of the sexualoffender’s presence and any change in the sexual offender’s enrollment, volunteer, or employmentstatus.1070

A sexual offender also must report in person to the sheriff’s office within 48 hours after anychange in vehicles owned to report those vehicle information changes.1071

A sexual offender also is required to provide any other information determined necessary bythe department, including criminal and corrections records; nonprivileged personnel and treatmentrecords; and evidentiary genetic markers, when available.1072

When a sexual offender reports at the sheriff’s office, the sheriff must take a photograph, aset of fingerprints, and palm prints of the offender and forward the photographs, palm prints, andfingerprints to the department, along with the information provided by the sexual offender. Thesheriff must promptly provide to the department the information received from the sexualoffender.1073

Within 48 hours after the report required under section 943.0435(2), a sexual offender mustreport 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 section322.141(3) was previously secured or updated under section 944.607. At the driver license officethe 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.

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1. If otherwise qualified, secure a Florida driver license, renew a Florida driver license, orsecure an identification card. The sexual offender must identify himself or herself as a sexualoffender who is required to comply with section 943.0435 and must provide proof that the sexualoffender reported as required in section 943.0435(2). The sexual offender must provide any of theinformation specified in section 943.0435(2), if requested. The sexual offender must submit to thetaking of a photograph for use in issuing a driver license, renewed license, or identification card, andfor 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 forissuing or renewing a driver license or identification card as required by this section 943.0435. Thedriver 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 thesexual offender, including a set of fingerprints.1076

Each time a sexual offender’s driver license or identification card is subject to renewal, and,without regard to the status of the offender’s driver license or identification card, within 48 hoursafter any change in the offender’s permanent, temporary, or transient residence or change in theoffender’s name by reason of marriage or other legal process, the offender must report in person toa driver license office, and is subject to the requirements specified in section 943.0435(3). TheDepartment of Highway Safety and Motor Vehicles must forward to the department all photographsand information provided by sexual offenders. Notwithstanding the restrictions set forth in section322.142, the Department of Highway Safety and Motor Vehicles may release a reproduction of acolor-photograph or digital-image license to the Department of Law Enforcement for purposes ofpublic notification of sexual offenders as provided in sections 943.043 and 944.606. A sexualoffender who is unable to secure or update a driver license or identification card with the Departmentof Highway Safety and Motor Vehicles as provided in sections 943.0435(3) and (4) must also reportany change in the sexual offender’s permanent, temporary, or transient residence or change in theoffender’s name by reason of marriage or other legal process within 48 hours after the change to thesheriff’s office in the county where the offender resides or is located and provide confirmation thathe 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 offender’s 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.

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residence within the state of Florida, and not to an offender’s failure to report a change of residenceoutside the country to the state’s driver license office.1078

A sexual offender who vacates a permanent, temporary, or transient residence and fails toestablish or maintain another permanent, temporary, or transient residence must, within 48 hoursafter vacating the permanent, temporary, or transient residence, report in person to the sheriff’s officeof the county in which he or she is located. The sexual offender must specify the date upon whichhe or she intends to or did vacate such residence. The sexual offender must provide or update all ofthe registration information required under section 943.0435(2)(b). The sexual offender mustprovide an address for the residence or other place that he or she is or will be located during the timein which he or she fails to establish or maintain a permanent or temporaryresidence.1079

A sexual offender must report in person at the sheriff’s office in the county in which he orshe is located within 48 hours after establishing a transient residence and thereafter must report inperson every 30 days to the sheriff’s office in the county in which he or she is located whilemaintaining a transient residence. The sexual offender must provide the addresses and locationswhere he or she maintains a transient residence. Each sheriff’s office must establish procedures forreporting transient residence information and provide notice to transient registrants to report transientresidence information as required in this subparagraph. Reporting to the sheriff’s office as requiredby section 943.0435(4) does not exempt registrants from any reregistration requirement. The sheriffmay coordinate and enter into agreements with police departments and other governmental entitiesto facilitate additional reporting sites for transient residence registration required in this section943.0435(4). The sheriff’s office must, within 2 business days, electronically submit and update allinformation provided by the sexual offender to the department.1080

A sexual offender who remains at a permanent, temporary, or transient residence afterreporting his or her intent to vacate such residence must, within 48 hours after the date upon whichthe offender indicated he or she would or did vacate such residence, report in person to the agencyto which he or she reported pursuant to section 943.0435(4)(b) for the purpose of reporting his orher address at such residence. When the sheriff receives the report, the sheriff must promptly conveythe information to the department. An offender who makes a report as required under section943.0435(b) but fails to make a report as required under this paragraph commits a felony of thesecond degree, punishable as provided in section 775.082, section 775.083, or section 775.084.1081

1078Figeroa 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.

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A sexual offender must register all electronic mail addresses and Internet identifiers with thedepartment before using such electronic mail addresses and Internet identifiers. The departmentmust establish an online system through which sexual offenders may securely access and update allelectronic mail address and Internet mail information.1082

Section 943.0435 does not apply to a sexual offender who is also a sexual predator, asdefined 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 residencein another state or jurisdiction other than the State of Florida must report in person to the sheriff ofthe county of current residence within 48 hours before the date he or she intends to leave Florida toestablish residence in another state or jurisdiction or within 21 days before his or her planneddeparture date if the intended residence of 5 days or more is outside of the United States. Thenotification 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 sexualoffender. The department must notify the statewide law enforcement agency, or a comparableagency, in the intended state, jurisdiction, or county of residence of the sexual offender’s intendedresidence.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 anothercountry and later decides to remain in Florida must, within 48 hours after the date upon which thesexual offender indicated he or she would leave Florida, report in person to the sheriff to which thesexual offender reported the intended change of permanent, temporary, or transient residence, andreport his or her intent to remain in Florida.1084

Except as provided in section 943.04354, a sexual offender must maintain registration withthe department for the duration of his or her life, unless the sexual offender has received a fullpardon or has had a conviction set aside in a postconviction proceeding for any offense that meetsthe criteria for classifying the person as a sexual offender for purposes of registration. However, asexual 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 misdemeanoroffense since release, provided that the sexual offender’s requirement to register was not based uponan adult conviction for: a violation of: section 787.01 or section 787.02; a violation of section794.011, excluding section 794.011(10); a violation of section 800.04(4)(a)2. where the court findsthe 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 theoffense 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.

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conspiracy to commit any such offense; a violation of similar law of another jurisdiction; or aviolation of a similar offense committed in Florida which has been redesignated from a formerstatute number to one of those listed in this subparagraph, may petition the criminal division of thecircuit court of the circuit where the conviction or adjudication occurred for the purpose of removingthe 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 hasnot been arrested for any crime since release; the requested relief complies with the provisions of thefederal Adam Walsh Child Protection and Safety Act of 20061086 and any other federal standardsapplicable to the removal of registration requirements for a sexual offender or required to be met asa condition for the receipt of federal funds by Florida; and the court is otherwise satisfied that theoffender is not a current or potential threat to public safety. The state attorney in the circuit in whichthe petition is filed must be given notice of the petition at least 3 weeks before the hearing on thematter. The state attorney may present evidence in opposition to the requested relief or mayotherwise 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 mustremove an offender from classification as a sexual offender for purposes of registration if theoffender provides to the department a certified copy of the court’s written findings or order thatindicates that the offender is no longer required to comply with the requirements for registration asa sexual offender.1088

For purposes of this section 943.0435(11)(a)4.a., the registration period of a sexual offendersentenced to a term of incarceration or committed to a residential program begins upon theoffender’s release from incarceration or commitment for the most recent conviction that required theoffender to register.1089 A sexual offender’s registration period is tolled during any period in whichthe offender is incarcerated, civilly committed, detained pursuant to chapter 985, or committed toa residential program.1090 Except as provided in section 943.0435(11)(a)4.e., if the sexual offenderis only sentenced to a term of supervision for the most recent conviction that required the offender

1085§ 943.0435(11)(a)1., Fla. Stat.

1086See 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.

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to register as a sexual offender or is only subject to a period of supervision for that conviction, theregistration 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 aterm of supervision that follows a term of incarceration for the most recent conviction that requiredthe offender to register as a sexual offender or is subject to a period of supervision that followscommitment to a residential program for that conviction, the registration period begins when theterm or period of supervision for that conviction begins.1092 If a sexual offender is sentenced to aterm of more than 25 years’ supervision for the most recent conviction that required the offender toregister as a sexual offender, the sexual offender may not petition for removal of the requirement forregistration 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 withthe department for the duration of his or her life until the person provides the department with anorder issued by the court that designated the person as a sexual predator, as a sexually violentpredator, or by another sexual offender designation in the state or jurisdiction in which the order wasissued which states that such designation has been removed or demonstrates to the department thatsuch designation, if not imposed by a court, has been removed by operation of law or court order inthe state or jurisdiction in which the designation was made, and provided such person no longermeets 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 offender’sbirthday and during the sixth month following the sexual offender’s birth month to the sheriff’soffice in the county in which he or she resides or is otherwise located to reregister.1095 However, asexual offender who is required to register as a result of a conviction for: section 787.01 or section787.02 where the victim is a minor and the offender is not the victim’s parent or guardian; section794.011, excluding section 794.011(10); section 800.04(4)(a)2. where the court finds the offenseinvolved a victim under 12 years of age or sexual activity by the use of force or coercion; section800.04(5)(b); section 800.04(5)(c)1. where the court finds molestation involving unclothed genitalsor genital area; section 800.04(5)(c)2. where the court finds molestation involving the use of forceor coercion and unclothed genitals or genital area; section 800.04(5)(d) where the court finds the useof force or coercion and unclothed genitals or genital area; any attempt or conspiracy to commit suchoffense; 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.

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committed in Florida which has been redesignated from a former statute number to one of thoselisted in section 943.0435(14), must reregister each year during the month of the sexual offender’sbirthday and every third month thereafter.1096

The sheriff’s office may determine the appropriate times and days for reporting by the sexualoffender, 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 otheridentifying marks; hair and eye color; address of any permanent residence and address of any currenttemporary residence, within Florida or out of state, including a rural route address and a post officebox; if no permanent or temporary address, any transient residence within Florida; address, locationor description, and dates of any current or known future temporary residence within Florida or outof state; all electronic mail addresses or Internet identifiers required to be provided pursuant tosection 943.0435(4)(e); all home telephone numbers and cellular telephone numbers; date and placeof any employment; the make, model, color, vehicle identification number (VIN), and license tagnumber of all vehicles owned; fingerprints; palm prints; and photograph. A post office box may notbe provided in lieu of a physical residential address. The sexual offender must also produce his orher passport, if he or she has a passport, and, if he or she is an alien, must produce or provideinformation about documents establishing his or her immigration status. The sexual offender mustalso 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 aninstitution of higher education in Florida, the sexual offender must also provide to the departmentthe name, address, and county of each institution, including each campus attended, and the sexualoffender’s enrollment, volunteer, or employment status.1098

3. If the sexual offender’s place of residence is a motor vehicle, trailer, mobile home, ormanufactured home, as defined in chapter 320, the sexual offender must also provide the vehicleidentification number; the license tag number; the registration number; and a description, includingcolor scheme, of the motor vehicle, trailer, mobile home, or manufactured home. If thesexual offender’s place of residence is a vessel, live-aboard vessel, or houseboat, as defined inchapter 327, the sexual offender must also provide the hull identification number; the manufacturer’sserial number; the name of the vessel, live-aboard vessel, or houseboat; the registration number; anda 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.

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A sexual offender who is under the supervision of the Department of Corrections but is notincarcerated must register with the Department of Corrections within three business days after thesentencing for a registrable offense and otherwise provide information required by section944.607(4).1100 If the sexual offender is in the custody of a local jail, the custodian of the local jailis required to register the offender and forward the information to the Florida Department of LawEnforcement.1101 If the sexual offender is under federal supervision, the federal agency responsiblefor supervising the sexual offender may forward to the Department of Law Enforcement anyinformation regarding the sexual offender which is consistent with the information provided by thedepartment under section 944.607, and may indicate whether use of the information is restricted tolaw enforcement purposes only or may be used by the Department of Law Enforcement for purposesof public notification.1102

A sexual offender who is under the supervision of the Department of Corrections but whois 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 asexual predator, in which case he or she must register as required under section 775.21. A sexualoffender who fails to comply with the requirements of section 943.0435 is subject to the penaltiesprovided in section 943.0435(9).1103

Notwithstanding the rigorous reporting requirements imposed on the sexual offender, section943.0435(12) provides that sexual offender designation “is not a sentence or a punishment but issimply the status of the offender.” Although a defendant’s later failure to register as a sexualoffender 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 furtherpunishment 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.

1104See, § 943.0435(9), Fla. Stat.

1105State v. Partlow, 840 So. 2d 1040 (Fla. 2003). See, Freeland v . State, 832 So. 2d 923 (Fla. 1st DCA 2002) (theregistration and reporting requirements of section 943.0435 are regulatory and procedural in nature and do not violate the ex postfacto clause); Simmons v. State, 753 So. 2d 762 (Fla. 4th DCA 2000) (Sec. 943.0435 does not violate ex post facto clause as it neitheralters the definition of criminal conduct nor constitutes punishment).

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The statutory sexual offender registration requirement is a collateral consequence of the pleaand therefore failure to inform the defendant of that requirement before the defendant entered theplea does not render that plea involuntary.1106

Note that the requirement of section 943.0435 to report in person to a driver’s license officewithin 48 hours after change of residence has been construed under the rule of lenity to require thesex 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 defendantmust be designated as a “sexual predator” under section 775.21(5), and subject to registration undersection 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 section787.01 or section 787.02, where the victim is a minor and the defendant is not the victim’s parentor guardian, or section 794.011, section 800.04, or section 847.0145, or a violation of a similar lawof another jurisdiction;1108 or

b. Any felony violation, or any attempt thereof, of section 393.135(2); section394.4593(2); section 787.01, section 787.02, or section 787.025(2)(c), where the victim is a minorand the defendant is not the victim’s parent or guardian; section 787.06(3)(b), (d), (f), or (g); formersection 787.06(3)(h); section 794.011, excluding section 794.011(10); section 794.05; former section796.03; former section 796.035; section 800.04; section 810.145(8)(b); section 825.1025; section827.071; 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 haspreviously 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 thevictim’s parent or guardian; section 787.06(3)(b), (d), (f), or (g); former section 787.06(3)(h); section794.011, excluding section 794.011(10); section 794.05; former section 796.03; former section796.035; section 800.04; section 825.1025; section 827.071; section 847.0133; section 847.0135,

1106State v. Partlow, 840 So. 2d 1040 (Fla. 2003).

1107Griffin v. State, 969 So. 2d 1161 (Fla. 1st DCA 2007).

1108§ 775.21(4)(a)1.a, Fla. Stat.

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excluding section 847.0135(6); section 847.0145; section 916.1075(2); or section 985.701(1); or aviolation of a similar law of another jurisdiction;1109

2. The defendant has not received a pardon for any felony or similar law of anotherjurisdiction 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 operationof 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 musthave resulted in a conviction sentenced separately, or an adjudication of delinquency enteredseparately, prior to the current offense and sentenced or adjudicated separately from any other felonyconviction 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, theFlorida Department of Law Enforcement (FDLE), or any other law enforcement agency and if thecourt did not, for whatever reason, make a written finding at the time of sentencing that thedefendant was a sexual predator, or the defendant was administratively registered as a sexualpredator because the Department of Corrections, FDLE, or any other law enforcement agencyobtained information that indicated that the defendant met the criteria for designation as a sexualpredator based on a violation of a similar law in another jurisdiction, FDLE must remove thatdefendant from the FDLE list of sexual predators and, for a defendant described under section775.21(4)(a)1., must notify the state attorney who prosecuted the offense that met the criteria foradministrative designation as a sexual predator, and, for a defendant described under section775.21(4)(c), must notify the state attorney of the county where the defendant establishes ormaintains a permanent, temporary, or transient residence. The state attorney must bring the matterto the court’s attention in order to establish that the defendant meets the criteria for designation asa sexual predator. If the court makes a written finding that the defendant is a sexual predator, thedefendant must be designated as a sexual predator, must register or be registered as a sexual predatorwith FDLE as provided in section 775.21(6), and is subject to the community and public notificationas provided in section 775.21(7). If the court does not make a written finding that the defendant isa sexual predator, the defendant may not be designated as a sexual predator with respect to thatoffense 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.

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A defendant who has been determined to be a sexually violent predator pursuant to a civilcommitment proceeding under chapter 394 must be designated as a “sexual predator” under section775.21(5) and subject to registration under section 775.21(6) and community and public notificationunder 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) isa sexual predator, and the court must make a written finding at the time such person is determinedto be a sexually violent predator under chapter 394 that such person meets the criteria for designationas a sexual predator for purposes of section 775.21. The clerk is required to transmit a copy of theorder 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 isbefore the court for sentencing for a current offense committed on or after October 1, 1993, is asexual predator, and the sentencing court must make a written finding at the time of sentencing thatthe defendant is a sexual predator, and the clerk of the court is required to transmit a copy of theorder 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 obtainsinformation which indicates that a person who establishes or maintains a permanent, temporary, ortransient 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 violationin another jurisdiction on or after October 1, 1993, the Department of Corrections, FDLE, or the lawenforcement agency is required to notify the state attorney of the county where the person establishesor maintains a permanent, temporary, or transient residence of the person’s presence in thecommunity. The state attorney must file a petition with the criminal division of the circuit court forthe purpose of holding a hearing to determine if the person’s criminal record or record of civilcommitment from another jurisdiction meets the sexual predator criteria. If the court finds that theperson meets the sexual predator criteria because the person has violated a similar law or similarlaws in another jurisdiction, the court must make a written finding that the person is a sexualpredator.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.

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When the court makes a written finding that a person is a sexual predator, the court mustinform the sexual predator of the registration and community and public notification requirementsdescribed in section 775.21. Within 48 hours after the court designating an person as a sexualpredator, the clerk of the circuit court is required to transmit a copy of the court’s written sexualpredator finding to FDLE. If the person is sentenced to a term of imprisonment or supervision, acopy of the court’s written sexual predator finding must be submitted to the Department ofCorrections.1118

If a sexual predator is not sentenced to a term of imprisonment, the clerk of the court mustensure that the sexual predator’s fingerprints are taken and forwarded to FDLE within 48 hours afterthe 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 sexualpredator for the offense or offenses described in section 775.21(4) must forward to FDLE and to theDepartment of Corrections a certified copy of any order entered by the court imposing any specialcondition or restriction on the sexual predator that restricts or prohibits access to the victim, if thevictim is a minor, or to other minors.1119

If the Department of Corrections, FDLE, or any other law enforcement agency obtainsinformation which indicates that a defendant meets the sexual predator criteria but the court did notmake a written finding that the defendant is a sexual predator as required in section 775.21(5)(a), theDepartment of Corrections, FDLE, or the law enforcement agency is required to notify the stateattorney who prosecuted the offense for offenders described in section 775.21(5)(a)1., or the stateattorney of the county where the defendant establishes or maintains a residence upon first enteringthe state for persons described in section 775.21(5)(a)3. The state attorney must bring the matter tothe court's attention in order to establish that the defendant meets the sexual predator criteria. If thestate attorney fails to establish that a defendant meets the sexual predator criteria and the court doesnot make a written finding that a defendant is a sexual predator, the defendant is not required toregister with FDLE as a sexual predator. The Department of Corrections, FDLE, or any other lawenforcement agency can not administratively designate a person as a sexual predator without awritten 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 beendesignated as a sexual predator by a court of this state but who has been designated as a sexualpredator, as a sexually violent predator, or by another sexual offender designation in another stateor jurisdiction and was, as a result of such designation, subjected to registration or community orpublic 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.

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without regard to whether the person otherwise meets the criteria for registration as a sexual offenderis required to register in the manner provided in section 943.0435 or section 944.607 and is subjectto community and public notification as provided in section 943.0435 or section 944.607. A personwho meets the criteria of section 775.21 is subject to the requirements and penalty provisions ofsection 943.0435 or section 944.607 until the person provides FDLE with an order issued by thecourt that designated the person as a sexual predator, as a sexually violent predator, or by anothersexual offender designation in the state or jurisdiction in which the order was issued which states thatsuch designation has been removed or demonstrates to FDLE that such designation, if not imposedby a court, has been removed by operation of law or court order in the state or jurisdiction in whichthe designation was made, and provided such person no longer meets the criteria for registration asa sexual offender under the laws of Florida.1121

A sexual predator must register with FDLE through the sheriff’s office by providing thefollowing information to the department:

1. Name; social security number; age; race; sex; date of birth; height; weight; tattoos or otheridentifying marks; hair and eye color; photograph; address of legal residence and address of anycurrent temporary residence, within the state or out of state, including a rural route address and a postoffice 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 stateor out of state; all any electronic mail addresses and all Internet identifiers required to be providedpursuant to subparagraph (g)5; all home telephone numbers and cellular telephone numbers; date andplace of any employment; the make, model, color, vehicle identification number (VIN), and licensetag number of all vehicles owned; date and place of each conviction; fingerprints; palm prints; anda brief description of the crime or crimes committed by the offender. A post office box may not beprovided in lieu of a physical residential address. The sexual predator must produce his or herpassport, if he or she has a passport, and, if he or she is an alien, must produce or provideinformation about documents establishing his or her immigration status. The sexual predator mustalso provide information about any professional licenses he or she has. If the sexual predator’s placeof residence is a motor vehicle, trailer, mobile home, or manufactured home, as defined in chapter320, the sexual predator must also provide to the department written notice of the vehicleidentification number; the license tag number; the registration number; and a description, includingcolor scheme, of the motor vehicle, trailer, mobile home, or manufactured home. If a sexualpredator’s 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 identificationnumber; the manufacturer’s 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 vocationat an institution of higher education in this state, the sexual predator must also provide to the

1121§ 775.21(5)(d), Fla. Stat.

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department the name, address, and county of each institution, including each campus attended, andthe sexual predator’s enrollment, volunteer, or employment status. Each change in enrollment,volunteer, or employment status must be reported in person at the sheriff’s office, or the Departmentof Corrections if the sexual predator is in the custody or control of or under the supervision of theDepartment of Corrections, within 48 hours after any change in status. The sheriff or the Departmentof Corrections shall promptly notify each institution of the sexual predator’s presence and anychange in the sexual predator’s enrollment, volunteer, or employment status. A sexual predator mustreport in person to the sheriff’s office within 48 hours after any change in vehicles owned to reportthose vehicle information changes.

2. Any other information determined necessary by FDLE, including criminal and correctionsrecords; nonprivileged personnel and treatment records; and evidentiary genetic markers whenavailable.1122

If the sexual predator is in the custody or control of, or under the supervision of, theDepartment of Corrections, or is in the custody of a private correctional facility, the sexual predatormust register with the Department of Corrections.1123 A sexual predator who is under the supervisionof the Department of Corrections but who is not incarcerated must register with the Department ofCorrections 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 thesexual predator within three business days after intake of the sexual predator for any reason and uponrelease and forward the registration information to FDLE. The custodian of the local jail must alsotake a digitized photograph of the sexual predator while the sexual predator remains in custody andmust provide the digitized photograph FDLE. The custodian must also notify the department if thesexual 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 anyinformation regarding the sexual predator which is consistent with the information provided by theDepartment of Corrections under section 775.21, and may indicate whether use of the informationis restricted to law enforcement purposes only or may be used by FDLE for purposes of publicnotification.1126

If the sexual predator is not in the custody or control of, or under the supervision of, theDepartment 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.

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predator must register in person at the sheriff’s office in the county where he or she establishes ormaintains a residence within 48 hours after establishing or maintaining a residence in this state andat the sheriff’s office in the county where he or she was designated a sexual predator by the courtwithin 48 hours after such finding is made.1127 Any change in the sexual predator’s permanent ortemporary residence, name, vehicles owned, or any electronic mail addresses, or Internet identifiersrequired to be provided pursuant to section 775.21(6)(g)5., after the sexual predator registers inperson at the sheriff’s office as provided in section 775.21(6)(e)1., must be accomplished in themanner provided in section 775.21(6)(g), (i), and (j). When a sexual predator registers with thesheriff’s office, the sheriff must take a photograph, a set of fingerprints, and palm prints of thepredator and forward the photographs, palm prints, and fingerprints to the department, along withthe 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 sexualpredator who is not incarcerated and who resides in the community, including a sexual predatorunder the supervision of the Department of Corrections, must register in person at a driver licenseoffice of the Department of Highway Safety and Motor Vehicles and must present proof ofregistration. At the driver license office the sexual predator must:

1. If otherwise qualified, secure a Florida driver license, renew a Florida driver license, orsecure an identification card. The sexual predator must identify himself or herself as a sexualpredator 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 submitto the taking of a photograph for use in issuing a driver license, renewed license, or identificationcard, and for use by FDLE in maintaining current records of sexual predators. A post office box maynot be provided in lieu of a physical residential address. If the sexual predator’s place of residenceis a motor vehicle, trailer, mobile home, or manufactured home, as defined in chapter 320, the sexualpredator must also provide to the Department of Highway Safety and Motor Vehicles the vehicleidentification number; the license tag number; the registration number; and a description, includingcolor scheme, of the motor vehicle, trailer, mobile home, or manufactured home. If a sexualpredator’s place of residence is a vessel, live-aboard vessel, or houseboat, as defined in chapter 327,the sexual predator must also provide to the Department of Highway Safety and Motor Vehicles thehull identification number; the manufacturer’s serial number; the name of the vessel, live-aboardvessel, or houseboat; the registration number; and a description, including color scheme, of thevessel, 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.

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2. Pay the costs assessed by the Department of Highway Safety and Motor Vehicles forissuing or renewing a driver license or identification card as required by section 775.21. The driverlicense 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 thesexual predator, including a set of fingerprints.1131

Each time a sexual predator’s driver license or identification card is subject to renewal, and,without regard to the status of the predator’s driver license or identification card, within 48 hoursafter any change of the predator’s residence or change in the predator’s name by reason of marriageor other legal process, the predator must report in person to a driver license office and is subject tothe requirements specified in section 775.21(6)(f). A sexual predator who is unable to secure orupdate a driver license or identification card with the Department of Highway Safety and MotorVehicles as provided in section 775.21(6)(f) and (g) must also report any change of the predator’sresidence or change in the predator’s name by reason of marriage or other legal process within 48hours after the change to the sheriff’s office in the county where the predator resides or is locatedand provide confirmation that he or she reported such information to the Department of HighwaySafety and Motor Vehicles.1132

A sexual predator who vacates a permanent, temporary, or transient residence and fails toestablish or maintain another permanent, temporary, or transient residence must, within 48 hoursafter vacating the permanent, temporary, or transient residence, report in person to the sheriff’s officeof the county in which he or she is located. The sexual predator must specify the date upon whichhe or she intends to or did vacate such residence. The sexual predator must provide or update all ofthe registration information required under section 775.21(6)(a). The sexual predator must providean address for the residence or other place that he or she is or will be located during the time inwhich he or she fails to establish or maintain a permanent, temporary, or transient residence.1133

A sexual predator shall report in person at the sheriff’s office in the county in which he orshe is located within 48 hours after establishing a transient residence and thereafter must report inperson every 30 days to the sheriff’s office in the county in which he or she is located whilemaintaining a transient residence. The sexual predator must provide the addresses and locationswhere he or she maintains a transient residence. Each sheriff’s office shall establish procedures forreporting transient residence information and provide notice to transient registrants to report transientresidence information as required in this subsubparagraph. Reporting to the sheriff’s 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.

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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 othergovernmental entities to facilitate additional reporting sites for transient residence registrationrequired in section 775.21(6)(g)2.b. The sheriff’s office must, within two business days,electronically submit and update all information provided by the sexual predator to thedepartment.1134

A sexual predator who remains at a permanent, temporary, or transient residence afterreporting his or her intent to vacate such residence must, within 48 hours after the date upon whichthe predator indicated he or she would or did vacate such residence, report in person to the sheriff’soffice to which he or she reported pursuant to section 775.21(6)(g)2. for the purpose of reporting hisor her address at such residence. When the sheriff receives the report, the sheriff must promptlyconvey the information to FDLE.1135

A sexual predator must register all electronic mail addresses and Internet identifiers with theDepartment 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 maysecurely 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 inanother state or jurisdiction other than the state of Florida must report in person to the sheriff of thecounty of current residence within 48 hours before the date he or she intends to leave Florida toestablish residence in another state or jurisdiction or within 21 days before his or her planneddeparture date if the intended residence of five days or more is outside of the United States. Thesexual predator must provide to the sheriff the address, municipality, county, state, and country ofintended residence.1137

A sexual predator who indicates his or her intent to establish a permanent, temporary, ortransient residence in another state, a jurisdiction other than the state of Florida, or another countryand later decides to remain in Florida must, within 48 hours after the date upon which the sexualpredator indicated he or she would leave Florida, report in person to the sheriff to which the sexualpredator reported the intended change of residence, and report his or her intent to remain inFlorida.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.

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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 apostconviction 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 asexual predator’s presence. Upon notification of the presence of a sexual predator, the sheriff of thecounty or the chief of police of the municipality where the sexual predator establishes or maintainsa permanent or temporary residence must notify members of the community and the public of thepresence 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 thecounty or the chief of police of the municipality where the sexual predator temporarily orpermanently resides must notify each licensed child care facility, elementary school, middle school,and high school within a 1–mile radius of the temporary or permanent residence of the sexualpredator of the presence of the sexual predator. Information provided to members of the communityand 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 predator’s current permanent, temporary, and transient addresses, anddescriptions of registered locations that have no specific street address, including the name of thecounty or municipality if known;

4. The circumstances of the sexual predator’s offense or offenses; and

5. Whether the victim of the sexual predator’s offense or offenses was, at the time of theoffense, a minor or an adult.1140

A sexual predator must report in person each year during the month of the sexual predator’sbirthday and during every third month thereafter to the sheriff’s offce in the county in which he orshe resides or is otherwise located to reregister. The sheriff’s office may determine the appropriatetimes and days for reporting by the sexual predator, which shall be consistent with the reportingrequirements of section 775.21(8)(a).1141 Reregistration must include any changes to the followinginformation:

1139§ 775.21(6)(l), Fla. Stat.

1140§ 775.21(7)(a), Fla. Stat.

1141§ 775.21(8)(a), Fla. Stat.

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1. Name; social security number; age; race; sex; date of birth; height; weight; tattoos or otheridentifying marks; hair and eye color; address of any permanent residence and address of any currenttemporary residence, within the state or out of state, including a rural route address and a post officebox; if no permanent or temporary address, any transient residence within the state; address, locationor description, and dates of any current or known future temporary residence within the state or outof state; all electronic mail addresses or Internet identifiers required to be provided pursuant tosubparagraph 775.21(6)(g)5.; all home telephone numbers and number and any cellular telephonenumbers; date and place of any employment; vehicle make, model, color, vehicle identificationnumber (VIN), and license tag number of all vehicles owned; fingerprints; palm prints; andphotograph. A post office box may not be provided in lieu of a physical residential address. Thesexual predator must also produce his or her passport, if he or she has a passport, and, if he or sheis an alien, must produce or provide information about documents establishing his or herimmigration status. The sexual predator must also provide information about any professionallicenses he or she has.1142

2. If the sexual predator is enrolled, employed, volunteering, or carrying on a vocation at aninstitution 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 predator’senrollment, volunteer or employment status.1143

3. If the sexual predator’s place of residence is a motor vehicle, trailer, mobile home, ormanufactured home, as defined in chapter 320, the sexual predator must also provide the vehicleidentification number; the license tag number; the registration number; and a description, includingcolor scheme, of the motor vehicle, trailer, mobile home, or manufactured home. If the sexualpredator’s place of residence is a vessel, live-aboard vessel, or houseboat, as defined in chapter 327,the sexual predator must also provide the hull identification number; the manufacturer’s serialnumber; the name of the vessel, live-aboard vessel, or houseboat; the registration number; and adescription, 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 astatus resulting from the conviction of certain crimes.”); Fletcher v. State, 699 So. 2d 346 (Fla. 5th DCA 1997) (holding that section775.21 violates neither the ex post facto clause nor Rule 3.800 because the designation “sexual predator” is neither a sentence nora punishment but simply a status resulting from the conviction of certain crimes); see also Gonzalez v. State, 808 So. 2d 1265 (Fla.

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Sexual Predator Act are regulatory and procedural in nature and so a defendant challenging his orher sexual predator designation must seek relief in a separate civil suit for injunctive relief, and notin 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 defendantbased on a predicate offense that did not qualify the defendant for sexual predator status at the timeof sentencing.1148

The Sexual Predator Act does not apply to juveniles charged as adults but adjudicateddelinquent as they are not “criminally convicted” as required by the Sexual Predator Act.1149 However, a youthful offender sentence is an adult—not a juvenile—sentence, which allowsapplication of the Act.1150 A no contest plea where adjudication is withheld is specifically includedin the Sexual Predator Act’s definition of “conviction.”1151 The Sexual Predator Act is mandatoryand affords no discretion to the trial judge to designate an individual a sexual predator if the statutorycriteria are established.1152 A court may not enter an order approving a plea agreement that exemptsa person who meets the criteria for designation as a sexual predator.1153 Note, however, that the ruleof lenity precludes the sentencing court from imposing the sexual predator designation on adefendant when the record is unclear as to whether the qualifying offense or offenses occurred beforeor after the effective date of the Sexual Predators Act.1154

Mandatory designation on driver’s license or identification card

All licenses for the operation of motor vehicles or identification cards originally issued orreissued 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 Florida’s Sexual Predator Act areregulatory and procedural in nature and do not violate the ex post facto clause); Rickman v. State, 714 So. 2d 538 (Fla. 5th DCA1998) (holding that registration requirement of Florida’s Sexual Predator Act is procedural and regulatory in nature and does notconstitute punishment in violation of ex post facto clause).

1147Boyer v. State, 946 So. 2d 75 (Fla. 1st DCA 2006) (abrogated by, Saintelien v. State, 990 So. 2d 494 (Fla. 2008)); Travisv. State, 724 So. 2d 119, 120–21 (Fla. 1st DCA 1998).

1148Therrien v. State, 914 So. 2d 942 (Fla. 2005).

1149State v. J.M., 824 So. 2d 105, 109 (Fla. 2002).

1150Dejesus v. State, 862 So. 2d 847, 849 (Fla. 4th DCA 2003).

1151§ 775.21(1)(c), Fla. Stat. (2002).

1152Kelly v. State, 795 So. 2d 135, 137 (Fla. 5th DCA 2001).

1153Miller v. State, 112 So. 3d 142 (Fla. 1st DCA 2013).

1154Dennis v. State, 32 So. 3d 79 (Fla. 2d DCA 2009).

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designated as sexual predators under section 775.21 or subject to registration as sexual offendersunder section 943.0435 or section 944.607 are required to have on the front of the license oridentification 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 reportto 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 driver’slicense or identification card as required by section 322.141(3).1157 Note that it is unlawful for anyperson designated as a sexual predator or sexual offender to have in his or her possession a driver’slicense or identification card upon which the sexual predator or sexual offender markings requiredby 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 maynot be abrogated by a court, even if pursuant to a plea bargain, unless the court that enters such anorder determines that a person or entity is not operating in accordance with the laws governingsexual predators or sexual offenders, or that such laws or any part of such laws are unconstitutionalor unconstitutionally applied.1159 If a person meets the criteria in chapter 775 for designation as asexual predator or meets the criteria in section 943.0435, section 944.606, section 944.607, or anyother law for classification as a sexual offender, the court may not enter an order, for the purpose ofapproving a plea agreement or for any other reason, which: (a) exempts a person who meets thecriteria for designation as a sexual predator or classification as a sexual offender from suchdesignation or classification, or exempts such person from the requirements for registration orcommunity and public notification imposed upon sexual predators and sexual offenders; (b) restrictsthe compiling, reporting, or release of public records information that relates to sexual predators orsexual 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.

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its statutorily conferred authority as such duty or authority relates to sexual predators or sexualoffenders.1160 A challenge to a designation as a sexual predator or sexual offender is permitted aspart of a direct appeal of a criminal conviction and sentence through the appropriate post-convictionmotion.1161

Removal of the requirement to register as a sexual offender or sexual predatorin special circumstances

For purposes of section 943.04354, a person must be considered for removal of therequirement 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 ofsection 794.011, section 800.04, section 827.071, or section 847.0135(5) or of a similar offense inanother 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 listedin section 943.04354(1)(a) and is required to register as a sexual offender or sexual predator solelyon the basis of this conviction or adjudication; or violation;1163 or was convicted, regardless ofadjudication, or adjudicated delinquent of an offense in another jurisdiction which is similar to anoffense listed in paragraph (a) and no longer meets the criteria for registration as a sexual offenderor 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 ageor older but younger not more than 18 years of age at the time the person committed thisviolation.1165

1160§ 943.0436(2), Fla. Stat.

1161King v. State, 911 So. 2d 229 (Fla. 2d DCA 2005); Cabrera v. State, 884 So. 2d 482 (Fla. 5th DCA 2004); Nicholsonv. 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, 120–21 (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).

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If a person meets the criteria in section 943.04354(1), the person may move the criminaldivision of the circuit court of the circuit where the conviction or adjudication for the qualifyingoffense occurred to remove the requirement that the person register as a sexual offender or sexualpredator. The person must allege in the motion that he or she meets the criteria in section943.04354(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 defendant’squalifying offense involved nonconsensual sexual activity with the victim, even if the lack of consentwas not an element of the crime or crimes that qualified the defendant for the registry.1167 A personconvicted or adjudicated delinquent of an offense in another jurisdiction which is similar to anoffense listed in section 943.04354(1)(a) must provide the court written confirmation that he or sheis 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 ofthe motion at least 21 days before the date of sentencing, or disposition of the violation, or hearingon the motion and may present evidence in opposition to the requested relief or may otherwisedemonstrate why the motion should be denied. At sentencing, disposition of the violation, or hearingon the motion, the court must rule on the this motion, and, if the court determines the person meetsthe criteria in section 943.04354(1) and the removal of the registration requirement will not conflictwith federal law, it may grant the motion and order the removal of the registration requirement. Thecourt 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 anothermotion for removal of the registration requirement.1169

A finding by the court that the defendant’s sexual conduct with the victim must be supportedby competent, substantial evidence. A presentence investigation report, for example, is hearsay andso without corroborating evidence cannot form the basis for a finding of a lack of consent. Wherethe record contains no dispute on the issue of consent, an evidentiary hearing is not required. Wherethere is a disputed issue of consent or other material fact the court is required to afford the defendantan evidentiary hearing.1170

If a person provides to the Department of Law Enforcement a certified copy of the court’sorder removing the requirement that the person register as a sexual offender or sexual predator forthe 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.

1167See, Miller v. State, 17 So. 3d 778 (Fla. 5th DCA 2009).

1168§ 943.04354(2), Fla. Stat.

1169§ 943.04354(2), Fla. Stat.

1170Matos v. State, 111 So. 3d 964 (Fla. 5th DCA 2013).

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offense in another jurisdiction, the registration requirement will not apply to the person and thedepartment must remove all information about the person from the public registry of sexualoffenders and sexual predators maintained by the department. However, the removal of thisinformation from the public registry does not mean that the public is denied access to informationabout the person’s 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 state’s involuntarycommitment law has been termed a “massive curtailment of liberty.”1172 “Those whom the Stateseeks to involuntarily commit to a mental institution are entitled to the protection of ourConstitutions, as are those incarcerated in our correctional institutions.”1173 Accordingly, the subjectof an involuntary civil commitment proceeding has the right to the effective assistance of counselat all significant stages of the commitment process. By significant stages is meant all judicialproceedings and any other official proceeding at which a decision is, or can be, made which mayresult 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 Florida’s originalcivil commitment law. Pursuant to section 394.463(1) of the Act, a person may be taken to areceiving facility for involuntary examination if there is reason to believe that the person has amental illness and, because of his or her mental illness, (1) the person has either refused voluntaryexamination after conscientious explanation and disclosure of the purpose of the examination or theperson 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 orherself; that such neglect or refusal poses a real and present threat of substantial harm to his or herwell-being; and it is not apparent that such harm may be avoided through the help of willing familymembers or friends or the provision of other services; or there is a substantial likelihood that withoutcare or treatment the person will cause serious bodily harm to himself or herself or others in the near

1171§ 943.04354(3), Fla. Stat.

1172Shuman 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)).

1173Shuman v. State, 358 So. 2d 1333, 1335 (Fla. 1978).

1174Pullen v. State, 802 So. 2d 1113 (Fla. 2001).

1175See, 2014 Baker Act Handbook and User Reference Guide, Florida Department of Children and Families, found athttp://bakeract.fmhi.usf.edu/document/2014BakerActManual.pdf.

1176§§ 394.451 to 394.4789, Fla. Stat.

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future, as evidenced by recent behavior. Section 394.463(2) thereafter explains the detailedprocedures for the conduct of an involuntary examination.1177 Section 394.4655 of the Act sets forththe criteria and procedures for involuntary outpatient placement which allows for detention as longas the individual meets the criteria of the Act, for which must be filed with the court by theadministrator of either a receiving facility or a treatment facility, and provides the individual withappointment of the public defender and for a hearing on the matter; section 394.467 lays out parallelprocedures for involuntary inpatient treatment for an individual who has refused voluntary placementfor treatment or has been determined to be manifestly incapable of surviving on his or her own orwith the help of willing or responsible family and friends.1178

Jimmy Ryce Act commitment

The Jimmy Ryce Involuntary Civil Commitment for Sexually Violent Predators’ Treatmentand Care Act1 1 7 9 provides a civil commitment procedure for the long-term care and treatment ofsexually 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 nothave a mental disease or defect that renders them appropriate for involuntary treatment under theBaker Act,1180 which is intended to provide short-term treatment to individuals with serious mentaldisorders and then return them to the community;

2. In contrast to persons appropriate for civil commitment under the Baker Act, sexuallyviolent predators generally have antisocial personality features which are unamenable to existingmental 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 sexualviolence is high;

4. The existing involuntary commitment procedures under the Baker Act for the treatmentand care of mentally ill persons are inadequate to address the risk these sexually violent predatorspose to society; and

5. The prognosis for rehabilitating sexually violent predators in a prison setting is poor, thetreatment 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.

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population are very different from the traditional treatment modalities for people appropriate forcommitment under the Baker Act.1181

The Act was created so that a person classified as a sexually violent predator may beinvoluntarily committed to the Department of Children and Families for treatment until the person’smental abnormality or personality disorder has changed and the person is safe to be at large.1182 Theexpressed legislative intent is that persons who are subject to the civil commitment procedure forsexually violent predators under the Jimmy Ryce Act be subject to the procedures establishedthereunder and not to the provisions of the Baker Act or less restrictive alternatives.1 1 8 3 This Actapplies to all persons currently in custody who have been convicted of a sexually violent offense, asthat term is defined in section 394.912(9), as well as to all persons convicted of a sexually violentoffense and sentenced to total confinement in the future.1184

The term “custody” under the Act applies only to individuals in “lawful custody,” not merelythose individuals in actual custody.1185 An individual must be in lawful custody when commitmentproceedings are initiated in order for the circuit court to have jurisdiction to adjudicate thecommitment petition filed pursuant to the Jimmy Ryce Act.1 1 8 6 An inmate is not in lawful custodyat the time the State initiates civil commitment proceedings under the Jimmy Ryce Act when theinmate’s sentence has actually expired due to postconviction credit for time previously served and/oran award of gain time.1187 Probation is not “custody” within the meaning of the Act.1 1 88 A defendantheld in county jail on a violation of probation or community control charge before supervision isrevoked is in lawful custody for purposes of the Act because such custody is authorized by section948.06(1) and Fla. R. Crim. P. 3.790(b).1189

1181§ 394.910, Fla. Stat.

1182See, Fla. H.R. Comm. on Fam. Law & Child., CS for HB 3327 (1998) Staff Analysis 1 (Final May 26, 1998).

1183§ 394.911, Fla. Stat.

1184§ 394.925, Fla. Stat.

1185State v. Phillips, 119 So. 3d 1233 (Fla. 2013); State v. Atkinson, 831 So. 2d 172 (Fla. 2002).

1186Larimore v. State, 2 So. 3d 101 (Fla. 2008), as revised on denial of reh’g, (Jan. 29, 2009).

1187State v. Phillips, 119 So. 3d 1233 (Fla. 2013).

1188State v. Siddal, 772 So. 2d 555 (Fla. 3d DCA 2000).

1189See, State v. Ducharme, 892 So. 2d 1133 (Fla. 5th DCA 2004).

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“Person” means an individual 18 years of age or older who is a potential or actual subject ofproceedings under the Jimmy Ryce Act.1190 “Agency with jurisdiction” means the entity thatreleases, upon lawful order or authority, a person who is serving a sentence in the custody of theDepartment of Corrections, a person who was adjudicated delinquent and is committed to thecustody of the Department of Juvenile Justice, a person who was involuntarily committed to thecustody of the Department of Children and Families upon an adjudication of not guilty by reason ofinsanity, or a person who is serving a sentence in a county or municipal jail for a sexually violentoffense as defined in section 394.912(9)(i).1191

“Likely to engage in acts of sexual violence” means the person’s propensity to commit actsof 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 person’s emotional or volitional capacitywhich predisposes the person to commit sexually violent offenses.1193 “Sexually motivated” meansthat 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) Adjudicatedguilty 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) adjudicateddelinquent 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 section782.04(1)(a)2.;1196

2. Kidnapping of a child under the age of 13 and, in the course of that offense, committingsexual 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.

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3. Committing the offense of false imprisonment upon a child under the age of 13 and, inthe course of that offense, committing sexual battery or a lewd, lascivious, or indecent assault or actupon 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 violationof section 800.04 or section 847.0135(5);1200

6. An attempt, criminal solicitation, or conspiracy, in violation of section 777.04, of asexually violent offense;1201

7. Any conviction for a felony offense in effect at any time before October 1, 1998, whichis comparable to a sexually violent offense under section 393.912(9)(a)–(f) or any federal convictionor conviction in another state for a felony offense that in Florida would be a sexually violentoffense;1202

8. Any criminal act that, either at the time of sentencing for the offense or subsequentlyduring civil commitment proceedings under the Jimmy Ryce Act, has been determined beyond areasonable doubt to have been sexually motivated;1203 or

9. A criminal offense in which the state attorney refers a person to the department for civilcommitment proceedings pursuant to section 394.9125.1204

“Sexually violent predator” means any person who has been convicted of a sexually violentoffense and suffers from a mental abnormality or personality disorder that makes the person likelyto 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.

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A state attorney must refer a person to the department for civil commitment proceedings ifthe state attorney receives an arrest alert on the person pursuant to section 394.926(4), and the personis subsequently sentenced to a term of imprisonment in a county or municipal jail for any criminaloffense.1206 A state attorney may refer a person to the department for civil commitment proceedingsif the person is required to register as a sexual offender pursuant to section 943.0435, has previouslybeen convicted of a sexually violent offense as defined in section 394.912(9)(a)–(h), and has beensentenced to a term of imprisonment in a county or municipal jail for any criminal offense.1207 Astate 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 afterthe referral is made.1208

If a person is sentenced to a term of imprisonment in a county or municipal jail but is notsubsequently totally confined in the jail due to receiving credit for time served, the state attorney mayfile a petition with the circuit court within 120 hours after such person’s sentencing proceedingrequesting the court to order such person into the department's custody for purposes of initiating civilcommitment proceedings.1209 “Total confinement” means that the person is currently being held inany physically secure facility being operated or contractually operated for the Department ofCorrections, the Department of Juvenile Justice, or the Department of Children and Families. Aperson must also be deemed to be in total confinement for applicability of provisions under the Actif the person is serving an incarcerative sentence under the custody of the Department of Correctionsor 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 definedin section 394.912(9)(I), or a court or the agency with jurisdiction determines that the person whois being held should have been lawfully released at an earlier date and that the provisions of the Actshould have been applicable to the person on the date he or she should have been lawfullyreleased.1210

If the judge determines that there is probable cause to believe that the person should havebeen referred to the department pursuant to section 394.9125(1) or (2) but that the referral was notmade 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.

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for time served, the judge must order that the person be taken into custody and delivered to thecustody of the department for civil commitment proceedings.1211

The Secretary of the Department of Children and Families or his or her designee is requiredto establish a multidisciplinary team or teams.1212 Each team shall include, but need not be limitedto, two licensed psychiatrists or psychologists or one licensed psychiatrist and one licensedpsychologist who shall each have experience in or relevant to the evaluation or treatment of personswith mental abnormalities. Such evaluations must include, but need not be limited to, the member’s:

1. Scope of knowledge and understanding of clinical research regarding risk factors forsexual deviance and recidivism;

2. Ability to identify relevant clinical data from review of criminal records and otherinformation, 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 factorsand dynamic predictors of recidivism.1213

The agency with jurisdiction over a person who has been convicted of a sexually violentoffense must give written notice to the multidisciplinary team, and must provide a copy of the noticeto the state attorney of the circuit in which that person was last convicted of a sexually violentoffense. If the person has never been convicted of a sexually violent offense in Florida but has beenconvicted of a sexually violent offense in another state or in federal court, the agency withjurisdiction must give written notice to the multidisciplinary team and a copy to the state attorneyof the circuit in which the person was last convicted of any offense in Florida. If the person is beingconfined in Florida pursuant to interstate compact and has a prior or current conviction for a sexuallyviolent offense, the agency with jurisdiction must give written notice to the multidisciplinary teamand must provide a copy to the state attorney of the circuit in which the person plans to reside uponrelease or, if no residence in this state is planned, the state attorney in the circuit in which the facilityfrom 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.

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1. At least 545 days before the anticipated release from total confinement of a person servinga sentence in the custody of the Department of Corrections, except that in the case of a person whois totally confined for a period of less than 545 days, written notice must be given as soon aspracticable;1215

2. At least 180 days before the anticipated release from residential commitment of a personcommitted to the custody of the Department of Juvenile Justice, except that in the case of a personwho is committed to low or moderate risk facility, written notice must be given as soon aspracticable;1216

3. At least 180 days before the anticipated hearing regarding possible release of a personcommitted to the custody of the department who has been found not guilty by reason of insanity ormental incapacity of a sexually violent offense;1217 or

4. At least 180 days before the anticipated release from total confinement of a person servinga sentence in a county or municipal jail, except that in the case of a person who is totally confinedfor 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 thefollowing information:

1. The person’s name; identifying characteristics; anticipated future residence; the type ofsupervision the person will receive in the community, if any; and the person’s offense history;1219

2. The person’s criminal history, including police reports, victim statements, presentenceinvestigation reports, postsentence investigation reports, if available, and any other documentscontaining facts of the person’s criminal incidents or indicating whether the criminal incidentsincluded 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.

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3. Mental health, mental status, and medical records, including all clinical records and notesconcerning the person;1221

4. Documentation of institutional adjustment and any treatment received and, in the case ofan adjudicated delinquent committed to the Department of Juvenile Justice, copies of the most recentperformance plan and performance summary;1222 and

5. If the person was returned to custody after a period of supervision, documentation ofadjustment during supervision and any treatment received.1223

The department is required to maintain data on each case on the recommendations of theclinical evaluators in their clinical evaluations, the final recommendations of the multidisciplinaryteam, the petitions filed by state attorneys, and the results of those petitions. The department is alsorequired to analyze, at least annually, this data to assess inter-rater reliability between clinicalevaluators and the level of agreement between an individual evaluator’s recommendation and themultidisciplinary team’s recommendation for the same individual. The department shall also assesstrends in multidisciplinary team recommendations, state attorneys filings, and the results of suchfilings. The state attorneys must provide information to the department regarding filings and theirresults as necessary to maintain this data.1224

The multidisciplinary team is required to assess and evaluate each person referred to the teamand prioritize the assessment and evaluation of persons referred under section 394.193(1) based onthe person’s scheduled release date. A second clinical evaluation must be conducted if a memberof 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, theperson must be offered a personal interview. If the person agrees to participate in a personalinterview, at least one member of the team who is a licensed psychiatrist or psychologist mustconduct a personal interview of the person. If the person refuses to fully participate in a personalinterview, 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 createddifferent new subparagraphs (3)(d).

1226§ 394.913(3)(e), Fla. Stat.

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The multidisciplinary team is required to complete all clinical evaluations and provide thestate attorney a written assessment and recommendation as to whether the person meets thedefinition of a sexually violent predator at least 1 month before the person’s scheduled release datefrom the Department of Corrections, the Department of Juvenile Justice, or the Department ofChildren and Families. The multidisciplinary team must complete all clinical evaluations andprovide the state attorney a written assessment and recommendation as to whether the person meetsthe definition of a sexually violent predator at least 24 hours before the person’s scheduled releasedate from a county or municipal jail. The department must recommend that the state attorney filea petition for civil commitment if at least two members of the multidisciplinary team determine thatthe person meets the definition of a sexually violent predator. When the department determines thata person who has received a clinical evaluation does or does not meet the definition of a sexuallyviolent predator, the written assessment and recommendation must be sent to the state attorney. Ifthe state attorney questions, in writing, the determination that the person does or does not meet thedefinition of a sexually violent predator, the multidisciplinary team must reexamine the case beforea final written assessment and recommendation is provided to the state attorney.1227 Section 394.913is not jurisdictional, and failure to comply with it in no way prevents the state attorney fromproceeding 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 asexually violent offense becomes immediate for any reason, the agency with jurisdiction must uponimmediate release from total confinement transfer that person to the custody of the department tobe held in an appropriate secure facility.1 229 If a person who committed a sexually violent offenseand 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 custodyof the department due to an adjudication of not guilty by reason of insanity is released, the stateattorney, as designated in section 394.913, may file a petition with the circuit court within 120 hoursafter the person’s release alleging that: (1) Section 394.9125, section 394.913, or section 394.9135requires that the person be referred for consideration for civil commitment before release and theperson was not referred because of a mistake, oversight, or intentional act; or (2) the person wasreferred for commitment consideration but, through a mistake, oversight, or intentional act, wasreleased rather than transferred to the custody of the Department of Children and Families asrequired by the Jimmy Ryce Act.1 2 30 If the judge determines that there is probable cause to believethat 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.

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order the person to be taken into custody and delivered to an appropriate secure facility designatedby the Department of Children and Families.1231

Within 72 hours after transfer pursuant to section 394.9135(1)(a) or receipt into thedepartment’s custody pursuant to section 394.9135(1)(b) or section 394.9125(4), themultidisciplinary team must assess whether the person meets the definition of a sexually violentpredator. If at least two members of the multidisciplinary team, after all clinical evaluations havebeen 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 personmeets the definition of a sexually violent predator, the team must provide the state attorney, asdesignated by section 394.913, with its written assessment and recommendation within the 72-hourperiod 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 andrecommendation from the multidisciplinary team, the state attorney, as designated in section394.913, may file a petition with the circuit court alleging that the person is a sexually violentpredator and stating facts sufficient to support the allegation. If a petition is not filed within 48 hoursafter receipt of the written assessment and recommendation by the state attorney, the person mustbe immediately released, except that, if the 48-hour period ends after 5 p.m. on a working day or ona weekend or holiday, the petition may be filed on the next working day without resulting in theperson’s release. If a petition is filed pursuant to section 394.9135 and the judge determines thatthere is probable cause to believe that the person is a sexually violent predator, the judge shall orderthat the person be maintained in custody and held in an appropriate secure facility for furtherproceedings in accordance with the Act.1233 Section 394.9135 is not jurisdictional, and failure tocomply with the time limitations, which results in the release of a person who has been convictedof a sexually violent offense, is not dispositive of the case and does not prevent the state attorneyfrom proceeding against a person otherwise subject to the Act.1234

After receipt from the multidisciplinary team of the written assessment and positive ornegative recommendation as to whether the person meets the definition of a sexually violentpredator, the state attorney, in accordance with section 394.913, may file a petition with the circuitcourt alleging that the person is a sexually violent predator and stating facts sufficient to support suchallegation. 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.

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A written report of the multidisciplinary team recommending that a person is a sexuallyviolent predator is required before the state attorney can exercise his or her discretion to file apetition for civil confinement. In other words, a positive recommendation from the multidisciplinaryteam that a person meets the criteria to be considered a sexually violent predator is a conditionprecedent to the filing of a petition for commitment by the state attorney.1236 The recommendationof 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 violentpredator, the judge must determine whether probable cause exists to believe that the person namedin the petition is a sexually violent predator. If the judge determines that there is probable cause tobelieve that the person is a sexually violent predator, the judge must order that the person remain incustody and be immediately transferred to an appropriate secure facility if the person’s incarcerativesentence expires.1238 Upon the expiration of the incarcerative sentence and before the release fromcustody of a person whom the multidisciplinary team recommends for civil commitment, but afterthe state attorney files a petition under section 394.914, the court may conduct an adversarialprobable cause hearing if it determines such hearing is necessary. The court must only considerwhether to have an adversarial probable cause hearing in cases where the failure to begin a trial isnot 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 isrequired to receive evidence and hear argument from the person and the state attorney and determinewhether probable cause exists to believe that the person is a sexually violent predator.1239 At theadversarial probable cause hearing, the person has the right to be represented by counsel, presentevidence, cross-examine any witnesses who testify against the person, and view and copy allpetitions and reports in the court file.1 2 40 If the court again concludes that there is probable cause tobelieve that the person is a sexually violent predator, the court must order that the person be held inan appropriate secure facility upon the expiration of his or her incarcerative sentence.1241 After acourt finds probable cause to believe that the person is a sexually violent predator, the person mustbe held in custody in a secure facility without opportunity for pretrial release or release during thetrial proceedings.1242

1236Harden v. State, 932 So. 2d 1152 (Fla. 3d DCA 2006).

1237In 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.

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In all civil commitment proceedings for sexually violent predators under the Jimmy RyceAct, the following shall apply: The Florida Rules of Civil Procedure and the Florida Rules ofEvidence apply unless otherwise specified in the Act.1243 The psychotherapist-patient privilege undersection 90.503 does not exist or apply for communications relevant to an issue in proceedings toinvoluntarily commit a person under the Act.1244 The court may consider evidence of prior behaviorby a person who is subject to proceedings under the Act if such evidence is relevant to proving thatthe person is a sexually violent predator.1 2 4 5 Hearsay evidence, including reports of a member of themultidisciplinary team or reports produced on behalf of the multidisciplinary team, is admissible inproceedings 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 theAct.1246 Rules adopted under section 394.930 shall not constitute: (a) An evidentiary predicate forthe admission of any physical evidence or testimony; (b) a basis for excluding or otherwise limitingthe 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 underthe Act.1247

If the person who is subject to proceedings under the Act refuses to be interviewed by or fullycooperate with members of the multidisciplinary team or any state mental health expert, the courtmay, in its discretion: (a) Order the person to allow members of the multidisciplinary team and anystate mental health experts to review all mental health reports, tests, and evaluations by the person’smental health expert or experts; or (b) prohibit the person’s mental health experts from testifyingconcerning mental health tests, evaluations, or examinations of the person.1248 The failure of anyparty to comply with such rules does not constitute a defense in any judicial proceedings under theAct.1249

Within 30 days after the determination of probable cause, the court must conduct a trial todetermine whether the person is a sexually violent predator.1250 The trial may be continued onceupon 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.

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court on its own motion in the interests of justice, when the person will not be substantiallyprejudiced. No additional continuances may be granted unless the court finds that a manifestinjustice would otherwise occur.1251 At all adversarial proceedings under the Jimmy Ryce Act, theperson subject to this act is entitled to the assistance of counsel, and, if the person is indigent, thecourt 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 retainexperts or mental health professionals to perform an examination. If the person wishes to beexamined by a professional of the person’s own choice, the examiner must be provided reasonableaccess to the person, as well as to all relevant medical and mental health records and reports. In thecase of a person who is indigent, the court, upon the person’s request, must determine whether suchan examination is necessary. If the court determines that an examination is necessary, the court mustappoint a mental health professional and determine the reasonable compensation for theprofessional’s services, which must be paid by the state.1253 The person or the state attorney has theright to demand that the trial be before a jury of six members. A demand for a jury trial must befiled, in writing, at least 5 days before the trial. If no demand is made, the trial must be to thecourt.1254

The court or jury must determine by clear and convincing evidence whether the person is asexually violent predator.1255 For someone to be civilly committed under the Ryce Act, a fact-findermust determine by clear and convincing evidence that the respondent (1) has been convicted of anenumerated sexually violent offense; and (2) suffers from a mental abnormality or personalitydisorder that makes the person likely to engage in acts of sexual violence if not confined in a secureplace 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 theoffender lacked the ability to control behavior was implicit in the statutory definitions of “sexuallyviolent predator,” “sexually violent offense,” “mental abnormality,” and “likely to engage in acts ofsexual 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 unableto 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.

1257State v. White, 891 So. 2d 502 (Fla. 2004).

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jury would find the person is a sexually violent predator, the state attorney may refile the petition andproceed according to the provisions of the Jimmy Ryce Act. Any retrial must occur within 90 daysafter the previous trial, unless the subsequent proceeding is continued in accordance with section394.916(2). The determination that a person is a sexually violent predator may be appealed.1 2 5 8 Ifthe court or jury determines that the person is a sexually violent predator, upon the expiration of theincarcerative portion of all criminal sentences and disposition of any detainers, the person must becommitted to the custody of the Department of Children and Families for control, care, and treatmentuntil such time as the person’s mental abnormality or personality disorder has so changed that it issafe for the person to be at large. At all times, persons who are detained or committed under this partmust be kept in a secure facility segregated from patients of the department who are not detained orcommitted under this part.125 9 The public defender of the circuit in which a person was determinedto be a sexually violent predator must be appointed to represent the person on appeal. That publicdefender may request the public defender who handles criminal appeals for the circuit to representthe person on appeal in the manner provided in section 27.51(4). If the public defender is unable torepresent the person on appeal due to a conflict, the court must appoint other counsel, who must becompensated at a rate not less than that provided for appointed counsel in criminal cases. Filing feesfor indigent appeals under the Act are waived. Costs and fees related to such appeals, including theamounts paid for records, transcripts, and compensation of appointed counsel, must be authorizedby 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 hermental condition once every year or more frequently at the court’s discretion. The person may retainor, if the person is indigent and so requests, the court may appoint, a qualified professional toexamine the person. Such a professional must have access to all records concerning the person. Theresults 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 person’s status.1261 Thedepartment must provide the person with annual written notice of the person’s right to petition thecourt for release over the objection of the director of the facility where the person is housed. Thenotice must contain a waiver of rights. The director of the facility must forward the notice andwaiver form to the court.1262 The court must hold a limited hearing to determine whether there isprobable cause to believe that the person’s condition has so changed that it is safe for the person tobe at large and that the person will not engage in acts of sexual violence if discharged. The personhas 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.

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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 courtshall set a trial before the court on the issue.1263 At the trial before the court, the person is entitledto be present and is entitled to the benefit of all constitutional protections afforded the person at theinitial trial, except for the right to a jury. The state attorney is required to represent the state and hasthe right to have the person examined by professionals chosen by the state. At the hearing, the statebears the burden of proving, by clear and convincing evidence, that the person’s mental conditionremains such that it is not safe for the person to be at large and that, if released, the person is likelyto engage in acts of sexual violence.1264

If the secretary or the secretary's designee at any time determines that the person is not likelyto commit acts of sexual violence if discharged, the secretary or the secretary’s designee mustauthorize the person to petition the court for release. The petition must be served upon the court andthe state attorney. The court, upon receipt of such a petition, must order a trial before the courtwithin 30 days, unless continued for good cause.1265 The state attorney is required to represent thestate, and has the right to have the person examined by professionals of the state attorney’s choice. The state bears the burden of proving, by clear and convincing evidence, that the person’s mentalcondition remains such that it is not safe for the person to be at large and that, if released, the personis likely to engage in acts of sexual violence.1266

A person is not prohibited from filing a petition for discharge at any time after commitmentunder the Jimmy Ryce Act. However, if the person has previously filed such a petition without theapproval of the secretary or the secretary’s designee and the court determined that the petition waswithout merit, a subsequent petition must be denied unless the petition contains facts upon whicha court could find that the person’s condition has so changed that a probable cause hearing iswarranted.1267

At any time after exhausting all administrative remedies, a person held in a secure facilityunder the Jimmy Ryce Act may file a petition for habeas corpus in the circuit court for the countyin which the facility is located alleging that:

1. The person’s conditions of confinement violate a statutory right under state law or aconstitutional 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.

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2. The facility in which the person is confined is not an appropriate secure facility, as thatterm is used in section 394.915.1268

Upon filing a legally sufficient petition stating a prima facie case under section394.9215(1)(a), the court may direct the Department of Children and Families to file a response. Ifnecessary, the court may conduct an evidentiary proceeding and issue an order to correct a violationof state or federal rights found to exist by the court. A final order entered under section 394.9125may be appealed to the district court of appeal. A nonfinal order may be appealed to the extentprovided by the Florida Rules of Appellate Procedure. An appeal by the department must stay thetrial court’s 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 doesnot have a right to appointed counsel in any proceeding initiated under section 394.9215.1270 Reliefgranted on a petition filed under section 394.9215 must be narrowly drawn and may not exceed thatwhich is minimally necessary to correct, in the least intrusive manner possible, the violation of thestate or federal rights of a particular petitioner. A court considering a petition under section394.9215 must give substantial weight to whether the granting of relief would adversely impact theoperation of the detention and treatment facility or would adversely impact public safety.1271 Thecourt may not enter an order releasing a person from secure detention unless the court expressly findsthat no relief short of release will remedy the violation of state or federal rights which is found tohave occurred.1272

The statute and the case law construing the Jimmy Ryce Act make it clear that thecommitment proceedings under the Jimmy Ryce Act are civil in nature. Moreover, section394.9155(1) provides that the Florida Rules of Civil Procedure apply to all civil commitmentproceedings for sexually violent predators unless otherwise specified.1273 A sex offender’sinvoluntary civil commitment as a sexually violent predator under the Act is not continuedpunishment for his criminal offense, and thus does not violate an offender’s due process right tospecific performance of his plea agreement.1274 Any bargain a defendant may strike in a pleaagreement 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.

1273State v. Mitchell, 848 So. 2d 1209 (Fla. 1st DCA 2003), decision approved, 911 So. 2d 1211 (Fla. 2005).

1274State v. McFarland, 884 So. 2d 957 (Fla. 1st DCA 2003); see, Murray v. Regier, 872 So. 2d 217 (Fla. 2002).

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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 civilcommitment proceedings under that act, and in such circumstances the State is not barred byequitable estoppel from seeking civil commitment.1276 The State’s initiation of civil commitmentproceedings does not violate a prior agreement that did not mention the possibility of suchproceedings. Any agreement that a defendant may strike in a plea agreement in a criminal casewould have no bearing on a subsequent involuntary civil commitment for control, care, andtreatment.1277

Deportation

Since 1988, the law in Florida requires that the trial judge must specifically advise adefendant, before the defendant enters a guilty or nolo contendere plea, that he or she may facedeportation as a consequence of that plea.1278 The language in the Rule 3.172(c)(8) plea colloquywarns that conviction may result in deportation. The United States Supreme Court in Padilla1279 heldthat when the law is not succinct and straightforward as to whether a guilty plea will result indeportation, a criminal defense attorney, in order to provide effective assistance, need do no morethan advise a noncitizen client that pending criminal charges may carry a risk of adverse immigrationconsequences; but when the deportation consequence is truly clear, as when a plea will result inautomatic deportation, the duty to give correct advice is equally clear, i.e., the defendant must beinformed by defense counsel (or the court) that deportation is certain. The Florida Supreme Courthas held that an equivocal warning from the trial court is insufficient to categorically eliminateprejudice 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 acknowledgmentfrom the defendant contributes to the totality of the circumstances by providing evidence that thedefendant is aware of the possibility that a plea could affect his or her immigration status. In otherwords, the colloquy required by rule 3.172(c)(8) may refute a defendant’s post-conviction claim thathe 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

1275See, 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 expost facto clause).

1276State v. Harris, 881 So. 2d 1079 (Fla. 2004).

1277Murray v. Kearney, 770 So. 2d 273 (Fla. 4th DCA 2000), decision quashed, 872 So. 2d 217 (Fla. 2002).

1278In re Amendments to Florida Rules of Criminal Procedure, 536 So. 2d 992 (Fla. 1988); see, Fla. R. Crim. P. 3.172(c)(8).

1279Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).

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consequences.1280 In any event, the defendant has to show at any hearing on his or her motion towithdraw the plea to the offense or offenses that his or her plea was the only basis for removal andthat he or she had a legitimate expectation that he or she would be allowed to remain in thecountry.1281

A defendant seeking to withdraw a plea because the trial court did not advise the defendantof 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 becomefinal. In disputing whether a deportation warning had been given in a plea colloquy, the burden ofproof falls on the defendant, and he or she is required to demonstrate in his or her motion how heor she will prove that the warning was not given. The motion must allege, in addition to the lack ofa deportation warning, that the defendant would not have entered the plea if properly advised andthat under current law the plea does render the defendant subject to being removed from the countryat some point in the future. A defendant filing outside the two-year limitation period must allege andprove that he or she could not have ascertained the immigration consequences of the plea with theexercise of due diligence within the two-year period. Defendants whose cases were already final asof the issuance of the Florida Supreme Court’s opinion in State v. Green1282 on October 26, 2006 willhave two years from that date in which to file a motion comporting with the standards of thatopinion. In cases pending in the trial and appellate courts on October 26, 2006, courts should applythe 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 withdeportation, the defendant is allowed to refile in compliance with the standards set out in the Greenopinion within sixty days of affirmance, denial, or dismissal. All other defendants have two yearsfrom 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 thedeportation consequences of a plea, the burden is on the movant to establish that the plea in the caseunder attack is the only basis for deportation. Only then can the movant show prejudice resultingfrom the failure to advise of deportation consequences.1284

Where a defendant has entered a plea in exchange for a sentence of life imprisonment withoutthe possibility of parole, there is no realistic possibility of deportation and the defendant is not

1280Hernandez v. State, 124 So. 3d 757 (Fla. 2012).

1281See, Ioselli v. State, 122 So. 3d 388 (Fla. 4th DCA 2013), on reh’g, (Feb. 20, 2013).



1284State 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).

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entitled to relief under Rule 3.850 if the plea colloquy contained no warning of the immigrationconsequences of the plea.1285 Note that giving a proper deportation warning at a subsequent violationof supervision plea does not cure an error regarding the failure to give proper warnings in the initialplea to the original criminal charges.1286 Note, also, that while under Peart v. State,1287 any defendantwho gained knowledge of the threat of deportation prior to the filing date of Peart had two yearsfrom the decision’s filing date—April 13, 2000—to seek withdrawal of his or her plea due to thefailure to inform him or her of the immigration consequences of the plea, but fails to do so and thetime period expires before the date Green1288 was issued, Green does not open a new window for himor her.1289

Restraining orders upon conviction of stalking or cyberstalking

A sentencing court must consider, as a part of any sentence for stalking or cyberstalkingunder 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 ordermust be based upon the seriousness of the facts before the court, the probability of future violationsby the perpetrator, and the safety of the victim and his or her family members or individuals closelyassociated with the victim.1290 The order may be issued by the court even if the defendant issentenced to a state prison or a county jail or even if the imposition of the sentence is suspended andthe defendant is placed on probation.1291

1285Markland v. State, 971 So. 2d 832 (Fla. 3d DCA 2007).

1286Sabnani v. State, 5 So. 3d 808 (Fla. 3d DCA 2009); Valdez v. State, 1 So. 3d 1167 (Fla. 3d DCA 2009).

1287Peart v. State, 756 So. 2d 42 (Fla. 2000).


1289Lopez v. State, 12 So. 3d 849 (Fla. 3d DCA 2009).

1290§ 784.048(9)(a), Fla. Stat.

1291§ 784.048(9)(b), Fla. Stat.

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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 Statefiled its Notice to Seek Enhanced Penalties as a Prison Releasee Reoffender, and that the notice wasfiled on (date)]

To the Defense Counsel:

Are you stipulating that you received the State’s notice and discussed this with your client?

To the Defendant:

Has your attorney discussed with you the fact that the State has filed a notice of its intentionto seek enhanced penalties as a Prison Releasee Reoffender, and the impact this would have on yourpotential 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 ReleaseeReoffender is ______ years in prison?

Are you aware that being sentenced as a Prison Releasee Reoffender means that you will berequired to serve each and every day of your sentence, in effect, 100% of the time to which you arebeing sentenced, and that you will not be eligible for parole, control release, gain time, or any formof early release?

(3) Predicate Offense

The State must prove that the crime for which you are pleading guilty to now occurred within3 years of your release from prison.


Are you waiving your client’s right to a Presentence Investigation (PSI)?Are you stipulating to the Defendant’s 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 ReleaseeReoffender? [Note: The prosecutor should state case number, charge(s), close date, and sentence. Make sure that the Defendant’s release date was within 3 years of the commission of the instantoffense(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 State’s intentionto seek an enhanced penalty as a Prison Releasee Reoffender and that the notice was filed with theclerk on (date).

(2) The Court finds that the felony on which the Defendant is being sentenced is one of theenumerated 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 theDefendant committed the offense for which he is now being sentenced within 3 years of his releasefrom a correctional facility in case number ____________.

(4) In addition, the Court finds that the Defendant has offered no evidence that the priorconviction 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 aPrison Releasee Reoffender, and sentences the Defendant to __________ years in the state prison.

228


Figure 2.

Habitual Felony Offender Plea Colloquy

(1) Notice

[Ask the clerk for a copy of the Notice filed by the State, and state on the record that the Statefiled its Notice to Seek Enhanced Penalties as a Habitual Felony Offender, Habitual Violent FelonyOffender, or Violent Career Criminal, and that the notice was filed on (date)]



To the Defendant:

Has your attorney discussed with you the fact that the State has filed a notice of its intentionto seek enhanced penalties as a Habitual Felony Offender, and the impact this would have on yourpotential sentence in this case?

(2) HFO Sentence

To the Defendant:

Are you aware that the maximum penalty I could impose against you as a Habitual FelonyOffender is __________ years in prison?

Are you aware that being sentenced as a Habitual Felony Offender may affect the possibilityof early release through certain programs, including the Conditional Release and Early Releaseprograms?

In addition, do you understand that you may not be entitled to gain time or any other time offyour sentence?

In fact, do you understand that no one can guarantee the exact amount of time that you willserve, other than that on the charge(s) to which you are pleading you will not serve more than thetime 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 combinationof two or more felonies in this state or other qualified offenses, and that the felony for which thedefendant is to be sentenced was committed:

229


a. While the Defendant was serving a prison sentence or other sentence, or court-ordered orlawfully imposed supervision that is imposed as a result of a prior conviction for a felony or otherqualified offense; or

b. Within 5 years of the date of the conviction of the Defendant’s last prior felony or otherqualified offense, or within 5 years of the Defendant’s release from a prison sentence, probation,community control, control release, conditional release, parole or court-ordered or lawfully imposedsupervision or other sentence that is imposed as a result of a prior conviction for a felony or otherqualified offense, whichever is later; and The felony for which the Defendant is to be sentenced, andone of the two prior felony convictions, is not a violation of section 893.13 relating to the purchaseor the possession of a controlled substance.


Are you waiving your client’s right to a Presentence Investigation (PSI)?Are you stipulating to the Defendant’s prior convictions without the need of testimony or

further proof?

To the Defendant:

Are you in agreement with that stipulation?Please listen carefully to the prior 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 FelonyOffender? [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?


(1) The Court finds that the Defendant was properly put on notice of the State’s intentionto seek an enhanced penalty and that the notice was filed with the clerk on (date).

(2) The Court finds that the State has proven by a preponderance of the evidence that theDefendant 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 convictedand sentenced to (years/days) for (offense).

(3) The Court further finds that the felony for which the Defendant is being sentenced, andone 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 theprior convictions was set aside by post-conviction proceedings or a pardon by the Governor.

Based on the foregoing, the Court finds that the Defendant qualifies for sentencing as aHabitual Felony Offender, and sentences the Defendant to ______ years in the state prison.

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Figure 3.

Habitual Violent Felony Offender Plea Colloquy

(1) Notice




To the Defendant:

Has your attorney discussed with you the fact that the State has filed a notice of its intentionto seek enhanced penalties as a Habitual Violent Felony Offender, and the impact this would haveon 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 ViolentFelony 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 thepossibility of early release through certain programs, including the Conditional Release and EarlyRelease programs?


Are you aware that you will be required to serve each and every day of the minimummandatory portion of your sentence?



(3) Predicate Offenses

The State must prove that

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1. The Defendant has previously been convicted of a felony or an attempt or conspiracy tocommit 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 anelderly person or disabled adult; aggravated manslaughter of a child; unlawful throwing, placing, ordischarging of a destructive device or bomb; armed burglary; aggravated battery; or aggravatedstalking.

2. The felony for which the Defendant is to be sentenced was committed:

a. While the Defendant was serving a prison sentence or other sentence, or court-ordered or lawfully imposed supervision that is imposed as a result of a prior conviction for anenumerated felony; or

b. Within 5 years of the date of the conviction of the last prior enumerated felony,or within 5 years of the Defendant’s release from a prison sentence, probation, community control,control release, conditional release, parole, or court-ordered or lawfully imposed supervision or othersentence that is imposed as a result of a prior conviction for an enumerated felony, whichever is later.



further proof?

To the Defendant:

Are you in agreement with that stipulation?Please listen carefully to the prior conviction that the State will be announcing for the record.

When the State is finished, I will ask you if that was your prior conviction.

To the Prosecutor:

What cases are you relying on for proof that the Defendant qualifies as a Habitual ViolentFelony Offender? [Note: The prosecutor should state case number(s), charge(s), close date(s), andsentence(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


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(2) The Court finds that the State has proven by a preponderance of the evidence that theDefendant has previously been convicted of one (1) enumerated felony, on (date) under CaseNumber ____________, 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 priorconviction 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 aHabitual Violent Felony Offender, and sentences the Defendant to ______ years in the state prisonwith a ______-year minimum mandatory.

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Figure 4.

Violent Career Criminal Plea Colloquy

(1) Notice




To the Defendant:

Has your attorney discussed with you the fact that the State has filed a notice of its intentionto seek enhanced penalties as a Violent Career Criminal, and the impact this would have on yourpotential sentence in this case?

(2) VCC Sentence

To the Defendant:

Are you aware that the maximum penalty I could impose against you as a Violent Careercriminal is ______ years in prison with a minimum mandatory of ______ years?

Are you aware that being sentenced as a Violent Career Criminal may affect the possibilityof early release through certain programs, including the Conditional Release and Early Releaseprograms?


Are you aware that you will be required to serve each and every day of the minimummandatory portion of your sentence?



(3) Predicate Offenses (At Least 3)

The State must prove that

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1. The defendant has previously been convicted as an adult three or more times for anoffense in this state or other qualified offense that is: any forcible felony, as described in section776.08; aggravated stalking, as described in section 784.048(3) and (4); aggravated child abuse, asdescribed in section 827.03(2); aggravated abuse of an elderly person or disabled adult, as describedin section 825.102(2); lewd or lascivious battery, lewd or lascivious molestation, lewd or lasciviousconduct, or lewd or lascivious exhibition, as described in section 800.04; escape, as described insection 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 soenumerated 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 orlawfully imposed supervision that is imposed as a result of a prior conviction for an enumeratedfelony; or

b. Within 5 years after the conviction of the last prior enumerated felony, or within 5 yearsafter the defendant’s release from a prison sentence, probation, community control, control release,conditional release, parole, or court-ordered or lawfully imposed supervision or other sentence thatis imposed as a result of a prior conviction for an enumerated felony, whichever is later.



further proof?

To the Defendant:

Are you in agreement with that stipulation?Please listen carefully to the prior convictions that the State will be announcing for the


To the Prosecutor:

What cases are you relying on for proof that the Defendant qualifies as a Violent CareerCriminal? [Note: The prosecutor should state case number(s), charge(s), close date(s), andsentence(s). Make sure the priors are enumerated offenses.]

1292The 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).

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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




(2) The Court finds that the State has proven by a preponderance of the evidence that theDefendant has previously been convicted of three (3) enumerated felonies, one on (date) under CaseNumber ____________, wherein the Defendant was convicted and sentenced to (years/days) for(offense), a second on (date) under Case Number ____________, wherein the Defendant wasconvicted 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 priorfelonies 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 sentencedwas committed on or after May 24, 1997 and

a. while the Defendant was incarcerated for an enumerated felony, orb. 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 theprior convictions used for enhancement was set aside by post-conviction proceedings or a pardonby the Governor.

Based on the foregoing, the Court finds that the Defendant qualifies for sentencing as aViolent Career Criminal, and sentences the Defendant to ______ years in the state prison with a______-year minimum mandatory.

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Advanced Issues in Florida Sentencing 2015