Habitual Felony Offenders

Recidivist Sentencing attorney in St. Petersburg

Where a person qualifies as a habitual felony offender, the court may sentence that person to a period of incarceration that is up to twice the otherwise applicable statutory maximum for that particular offense. For example, Aggravated Assault is a third degree felony, punishable by up to five years in state prison (as all third degree felonies in the state of Florida are). If the court determines that the person is a habitual felony offender, the court may sentence him or her to a period of incarceration, for the Aggravated Assault charge, that is up to ten years - not five. For a second degree felony, which is punishable by up to fifteen years, the court may sentence the habitual felony offender to a period of incarceration up to thirty years. For a first degree felony, which is punishable by up to thirty years in prison (unless the offense statute specifically states that it is punishable by life), for a prison term up to life.

A not so obvious take away from the HFO provisions is that they increase only the top end of the guideline range (the statutory maximum), not the bottom end (offense specific ranking). 10-20-Life, by contrast, does both (i.e. where the charged felony does not include the use or possession of a weapon or firearm as an essential element of the offense but the defendant uses or possesses a weapon or firearm regardless); under 10-20-Life the offense is reclassified (which increases the statutory maximum) and re-ranked (which increases the minimum guideline score). If a court decides to sentence an HFO in accordance with HFO provisions, the sentencing guidelines do not apply and therefore, there is no mandatory "bottom end".

Unlike the PRR statute, and the 10-20-Life statute, the court has discretion to either sentence the HFO in accordance with the provisions of the HFO statute or not. The court may elect not to sentence the HFO accordingly if the court finds that it is not necessary for the protection of the public.

To qualify as an HFO, the defendant must first be charged with a felony offense that is not a violation of Florida Statutes § 893.13 related to the purchase or possession of a controlled substance. Next, the defendant must have at least two prior felony convictions and at least one of the prior offenses (used for the purposes of the HFO designation) also cannot be a violation of Fla. Stat. § 893.13 related to the purchase or possession of a controlled substance. You must then look the date of the pending offense relative to (1) the date of conviction for the prior offense; or (2) the date the defendant was released from sanction for the prior offense (whichever is later). If the period in between is five years or less, then the final element is met. Once again, with regard to the pending felony, it is date of offense that matters, not the date of conviction. In order to be counted as a prior felony for purposes of sentencing a person as an HFO, the felony must have resulted in a conviction sentenced separately and prior to the current offense, and sentenced separately from any other felony conviction that is to be counted as a prior felony.

If all offenses before the court for sentencing are HFO designated, the sentences must run concurrently. Those that are not HFO designated can be run consecutive to the HFO sentence, but the total sentence cannot exceed the statutory maximum on the HFO designated offense. A person sentenced as an HFO is eligible for good and gain time granted by the Florida Department of Corrections, as set forth in s. 944.275(4)(b).

Applicable Florida Statutes

The following is a list of Florida statutes that relate to Habitual Felony Offenders and sentencing implications:

• Florida statutes § 775.084(1)(a) provides as follows:

(1) As used in this act: (a) "Habitual felony offender" means a defendant for whom the court may impose an extended term of imprisonment, as provided in (4)(a), if it finds that: 1. The defendant has previously been convicted of any combination of two or more felonies in this state, or other qualified offenses. 2. The felony for which the defendant is to be sentenced was committed: a. While the defendant was serving a prison sentence or other sentence, or court ordered or lawfully imposed supervision that is imposed as a result of a prior conviction for a felony or other qualified offense; or b. Within 5 years of the date of the conviction of the defendant's last prior felony or other qualified offense, or within 5 years of the defendant's release from a prison sentence, probation, community control, control release, conditional release, parole or court ordered or lawfully imposed supervision or other sentence that is imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later. 3. The felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of s. 893.13 relating to the purchase or the possession of a controlled substance. 4. The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this paragraph.

• Florida statute 775.084(3)(a) provides as follows:

(3)(a) In a separate proceeding, the court shall determine if the defendant is a habitual felony offender or a habitual violent felony offender. The procedure shall be as follows: 1. The court shall obtain and consider a pre-sentence investigation prior to the imposition of a sentence as a habitual felony offender or a habitual violent felony offender. 2. Written notice shall be served on the defendant and the defendant's attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant. 3. Except as provided in subparagraph 1., all evidence presented shall be presented in open court with full rights of confrontation, cross-examination, and representation by counsel. 4. Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings. 5. For the purpose of identification of a habitual felony offender or a habitual violent felony offender, the court shall fingerprint the defendant pursuant to s. 921.241.6. For an offense committed on or after October 1st, 1995, if the state attorney pursues a habitual felony offender sanction or a habitual violent felony offender sanction against the defendant, and the court, in a separate proceeding pursuant to this paragraph, determines that the defendant meets the criteria under subsection (1) for imposing such sanction, the court must sentence the defendant as a habitual felony offender or a habitual violent felon offender, subject to imprisonment pursuant to this section unless the court finds that such sentence is not necessary for the protection of the public. If the court finds that it is not necessary for the protection of the public to sentence the defendant as a habitual felony offender or a habitual violent felony offender, the court shall provide written reasons; a written transcript of orally stated reasons is permissible, if filed by the court within 7 days after the date of sentencing. Each month, the court shall remit to the Office of Economic and Demographic Research of the Legislature the written reasons or transcripts in each case in which the court determines not to sentence a defendant as a habitual felony offender or a habitual violent felony offender as provided in this subparagraph.

• Florida statute § 775.084(4)(a) provides as follows:

(4)(a) The court, in conformity with the procedure established in paragraph (3)(a), may sentence the habitual felony offender as follows: 1. In the case of a life felony or a felony of the first degree, for life. 2. In the case of a felony of the second degree, for a term of years not exceeding 30. 3. In the case of a felony of the third degree, for a term of years not exceeding 10.

• Florida statute § 775.084(4)(h) provides as follows:

(h) A sentence imposed under this section is not subject to 921.002.

Where an accused person qualifies as an HFO, the court may sentence him or her to a period of incarceration that is up to twice the otherwise applicable statutory maximum. If you have been designated an HFO, The Kilfin Law Firm, P.C. can help.

Call (888) 258-8049 to schedule an appointment at our St. Petersburg office. We represent clients throughout the Tampa Bay area.

The Legislature finds that a substantial and disproportionate number of serious crimes are committed in Florida by a relatively small number of repeat and violent felony offenders, commonly known as career criminals. The Legislature further finds that priority should be given to the investigation, apprehension, and prosecution of career criminals in the use of law enforcement resources and to the incarceration of career criminals in the use of available prison space. The Legislature intends to initiate and support increased efforts by state and local law enforcement agencies and state attorneys' offices to investigate, apprehend, and prosecute career criminals and to incarcerate them for extended terms; and, in the case of violent career criminals, such extended terms must include substantial mandatory minimum terms of imprisonment.

• Florida statute § 775.0842 (persons subject to career criminal prosecution efforts) provides as follows:

A person who is under arrest for the commission, attempted commission, or conspiracy to commit any felony in this state shall be the subject of career criminal prosecution efforts provided that such person qualifies as a habitual felony offender, a habitual violent felony offender, or a violent career criminal under s. 775.084.

• Florida statutes § 775.0843 (policies to be adapted for career criminal case) provides as follows:

(1) Criminal justice agencies shall employ enhanced law enforcement management efforts and resources for the investigation, apprehension, and prosecution of career criminals. Each state attorney, sheriff, and police chief of each municipality shall provide for and participate in a career criminal prosecution program to coordinate the efforts contemplated by this section and ss. 775.0841 and 775.0842. Enhanced law enforcement efforts and resources include, but are not limited to: (a) Assignment of highly qualified investigators and prosecutors to career criminal cases. (b) Significant reduction of caseloads for investigators and prosecutors assigned to career criminal cases. (c) Coordination with federal, state, and local criminal justice agencies to facilitate the collection and dissemination of criminal investigative and intelligence information relating to those persons meeting the criteria of a career criminal.

(2) Each state attorney's office shall establish a career criminal prosecution unit and adopt and implement policies based on the following guidelines: (a) All reasonable prosecutorial efforts shall be made to resist the pretrial release of a charged defendant meeting career criminal criteria. (b) A plea of guilty or a trial conviction shall be sought on each offense charged in the accusatory pleadings against an individual meeting career criminal criteria. (c) All reasonable prosecutorial efforts shall be made to reduce time between arrest and disposition of charges against an individual meeting career criminal criteria. (d) All reasonable prosecutorial efforts shall be made to persuade the court to impose the most severe sanction authorized upon a person convicted after prosecution as a career criminal.

(3) This section does not prohibit a plea agreement in the interest of justice where there are co-defendants and the prosecuting attorney determines that the information or testimony of the defendant making the agreement is necessary for the conviction of one more of the other co defendants. The court may condition its acceptance of such plea agreement on the provision of such information or testimony by such co defendant.

(4) Law enforcement agencies shall employ enhanced law enforcement management efforts and resources in the investigation, apprehension, and prosecution of career criminals. Enhanced law enforcement efforts and resources include, but are not limited to: (a) Crime analysis, consisting of the timely collection and study of local crime data to: 1. Identify evolving or existing crime patterns involving career criminals. 2. Provide investigative leads. 3. Isolate and identify geographical areas or population groups experiencing severe crime problems in order to improve crime prevention efforts. 4. Provide supporting data for improved allocation of overall law enforcement agency resources. (b) Improved management of investigative operations involving use of information resulting from crime analysis, which may include participation in multi jurisdictional investigative and multi-aid units and measures to increase continuity of investigative efforts from the initial response through the arrest and prosecution of the offender.

(5) Each career criminal apprehension program shall concentrate on the identification and arrest of career criminals and the support of subsequent prosecution. The determination of which suspected felony offenders shall be the subject of career criminal apprehension efforts shall be made in accordance with written target selection criteria selected by the individual law enforcement agency and state attorney consistent with the provisions of this section and s. 775.0842.

(6) Each career criminal apprehension program, as one of its functions, shall maintain coordination with the prosecutor assigned to each case resulting from its efforts. The coordination shall include, but is not limited to, case preparation, processing, and adjudication.

Resources

The following is a list of outside sources, blog posts, and other website sections on topics related to habitual felony offenders and those referenced in this section:

Links

1. HG. Org: St. Petersburg Habitual Felony Offender Defense Attorney.

Blog posts

1. Do I Need a St. Petersburg Criminal Defense Attorney?
2. Florida's Principal Statute: All For One and One For All

Related sections

1. Affecting the Filing Decision
2. Drug Offenses
3. Habitual Violent Felony Offenders
4. 10-20-Life
5. Prison Releasee Reoffenders

The Bottom Line

The HFO statute is one the more benign of Florida's recidivist sentencing provisions in that it does not require the imposition of a minimum mandatory sentence upon conviction, does not require the charged offense to be re-ranked (so as to increase the otherwise applicable low end guideline score) and it gives the court discretion to avoid sentencing an accused person in accordance with its provisions where the person otherwise qualifies. If you have been arrested or charged with a felony offense in the Tampa Bay area, and meet HFO criteria, an experienced St. Petersburg criminal defense attorney can help.

Contact the Kilfin Law Firm, P.C. and speak directly to attorney Donald J. Kilfin about your case.