Habitual Violent Felony Offenders

St. Petersburg Criminal Defense Attorney

Florida's habitual violent felony offender (HVFO) provisions are similar to its habitual felony offender (HFO) provisions in three material respects. First, the court has discretion to sentence the person (who otherwise qualifies) as an HVFO, but may elect not to do so if the court fins that it is not necessary for the protection of the public. Second, an HVFO designation increases the otherwise applicable statutory maximum in precisely the same manner an HFO designation: for a life or first degree felony, the court may sentence the person to life; in the case of a felony of the second degree, for a term of years not exceeding thirty; and for a felony of the third degree, for a term of years not exceeding ten. Third, both require the commission of a felony offense within the same time period relative to a prior felony conviction or release from sanction from such felony, whichever is later. Fourth, a sentence imposed under either the HFO provisions or the HVFO provisions are not subject to s. 921.002. Finally, persons sentenced as both HFOs and HVFOs are entitled to gain time granted by the Florida Department of corrections, as provided in s. 944.275(4)(b).

There are, however, some important distinctions. First, an HVFO designation requires the commission of certain statutorily enumerated felonies, as set forth below. If the pending felony offense is something other than one that is enumerated in the statute, the accused person is not subject to the HVFO enhancement. Also, the HVFO enhancement (unlike the HFO enhancement) requires the court to impose certain minimum mandatory prison terms if the court elects to sentence the accused person as an HVFO. While the HFO is also subject to significant increases in the otherwise applicable maximum penatly, there is no associated minimum mandatory prison sentence that must be imposed upon conviction.

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)(b) provides as follows:

(1) As used in this act: (b) "Habitual violent felony offender" means a defendant for whom the court may impose an extended term of imprisonment, as provided in (4)(b), if it finds that: 1. The defendant has previously been convicted of a felony or an attempt or conspiracy to commit a felony and one or more of such convictions was for: a. Arson; b. Sexual battery; c. Robbery; d. Kidnapping; e. Aggravated child abuse; f. Aggravated abuse of an elderly person or disabled adult; g. Aggravated assault with a deadly weapon; h. Murder; i. Manslaughter; j. Aggravated Manslaughter of an elderly person or disabled adult; k. Aggravated manslaughter of a child; l. Unlawful throwing, placing, or discharging a destructive device or bomb; m. Armed Burglary; n. Aggravated battery; or o. Aggravated stalking. 2. The felony for which the defendant is to be sentenced was committed: a. While the defendant was serving a prison sentence or other sentence, or court ordered or lawfully imposed supervision that is imposed as a result of a prior conviction for a felony or other qualified offense; 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 other sentence that is imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later. 3. The defendant has not received a pardon on the ground of innocence for any crime that is necessary for the operation of this paragraph. 4. A conviction of a crime necessary to the operation of this paragraph has not been set aside in any post conviction proceeding.

• 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)(b) provides as follows:

(4)(b) The court, in conformity with the procedure established in paragraph (3)(a), may sentence the habitual violent felony offender as follows: 1. In the case of a life felony or a felony of the first degree, for life, and such offender shall not be eligible for release for 15 years. 2. In the case of a felony of the second degree, for a term of years not exceeding 30, and such offender shall not be eligible for release for 10 years. 3. In the case of a felony of the third degree, for a term of years not exceeding 10, and such offender shall not be eligible for release for 5 years.

• 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 HVFO, the court may sentence him or her to a period of incarceration that is up to twice the otherwise applicable statutory maximum and must impose certain minimum mandatories. If you have been designated an HVFO, an experienced St. Petersburg criminal defense attorney can help. The Kilfin Law Firm, P.C. represents clients throughout the Tampa bay area.

• Florida statute § 775.0841 (Legislative findings and intent) provides as follows:

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, prior blog posts, and other website sections on topics related to Habitual Violent Felony Offenders:

Links

1. HG. Org: St. Petersburg Habitual Violent 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
3. Inchoate (Incomplete) Crimes: Attempt, Solicitation, Conspiracy

Related Sections

1. Affecting the Filing Decision
2. Habitual Felony Offenders
3. Arson
4. Sexual Offenses
5. Robbery
6. Kidnapping
7. Aggravated Assault
8. Homicide
9. Burglary
10. Aggravated Battery

The Bottom Line

The HVFO statute is one of Florida's several recidivist sentencing provisions aimed at severely punishing career criminals in this state. It is more draconian than the HFO statute in that it requires the imposition of stiff minimum mandatory prison sentences upon conviction (and where the court has elected to sentence the person as an HVFO where the person qualifies). Sentencing in Florida can be very complicated. If you have been designated an HVFO, or are subject to another of Florida's recidivist sentencing enhancements, we can help.

Contact The Kilfin Law Firm, P.C. to schedule a free initial consultation at our St. Petersburg office.