Prison Release Re-Offenders

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When a person is charged with a felony offense in the State of Florida, his or her sentence is determined, in large part, by the Criminal Punishment Code (also referred to as the Sentencing Guidelines). The low end of the guideline range is determined by adding the points assigned to each pending offense, and any prior convictions, before performing a minor mathematical calculation. If the resulting number is 44 or less, then the court is not required to impose a state prison sentence. In most instances, if the resulting number is higher than 44, then the court must sentence the person to a prison term that is not less than the minimum number of months dictated by the person's guideline score (unless there is a lawful basis to do so; this is typically referred to as a "guideline departure"). The top end of the guideline range is the maximum penalty authorized by law for that particular offense.

When a person is designated a prison release re offender, however, the sentencing guidelines no longer apply. If that person enters a plea of guilty or no contest, or is found guilty by a judge or jury, the court has no discretion but to sentence that person to the statutory maximum. A prison release re-offender means any defendant who commits, or attempts to commit one of the offenses enumerated in Florida statute § 775.082(9) (see below) within three years of release from a state or federal prison.

A prison release re-offender must be sentenced as follows: (1) For a felony punishable for 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; (4) For a felony of the third degree, by a term of imprisonment of 5 years. The person sentenced as a PRR is not entitled to any form of good and gain time or early release; he or she must serve 100 percent of his or her sentence.

Whether to file a Notice of Enhanced Penalty (a condition precedent to invoking the provisions of the PRR statute where the person otherwise qualifies), is within the sole discretion of the State Attorney's Office. The judge plays no role in this; it is beyond the purview of the court. Alternatively, the State Attorney's Office may elect to file a charge that is not enumerated in the statute if the State determines that there are compelling reasons to do so. If an enumerated offense is charged, and the enhanced penalty is sought, the State is required to prove that the statute applies to the accused person only by a preponderance of the evidence. This is a much lesser burden than beyond a reasonable doubt and is usually accomplished by tendering a copy of the judgment sheet and fingerprint card from the prior conviction (for the offense that resulted in the prison sentence) and certified records from the prison facility showing the date of release. Florida has some of the most severe recidivist sentencing statutes in the country and the PRR statue is arguably the most draconian of them all.

Applicable Florida Statute

Florida statute section 775.082(9) provides as follows:

(9)(a)1. "Prison releasee reoffender" means any defendant who commits, or attempts to commit: a. Treason; b. Murder; c. Manslaughter; d. Sexual battery; e. Carjacking; f. Home-invasion robbery; g. Robbery; h. Arson; i. Kidnapping; j. Aggravated Assault with a Deadly Weapon; k. Aggravated battery; l. Aggravated stalking; m. Aircraft piracy; n. Unlawful throwing, placing, or discharging of a destructive device or bomb; o. Any felony that involves the use or threat of physical force or violence against the individual; p. Armed burglary; q. burglary of a dwelling or burglary of an occupied structure; r. Any felony violation of s. 790.07, s. 800.04, s. 827.03, s. 827.071, s. 847.0135(5); within 3 years after being released from a state correctional facility operated by the Department of Corrections or a private vendor or within 3 years after being released from a correction institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is punishable by more than 1 year in this state. 2. "Prison releasee reoffender" also means any defendant who commits or attempts to commit any offense listed in subparagraphs (a)1.a.-r. while the defendant was serving a prison sentence or on escape status from a state correctional facility operated by the Department of Corrections or a private vendor or while the defendant was on escape status from a correctional institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, following incarceration for an offense or which the sentence is punishable by more than 1 year in this state. 3. If the state attorney determines that the defendant is a prison releasee reoffender as defined in subpargraph 1., the state attorney may seek to have the court sentence the defendant as a prison releasee reoffender. Upon proof by the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffender as defined in this section, such defendant is not eligible for sentencing under the sentencing guidelines and must be sentenced as follows: a. For a felony punishable by life, by a term of imprisonment for life; b. For a felony of the first degree, by a term of imprisonment of 30 years; c. For a felony of the second degree, by a term of imprisonment of fifteen years; for a felony of the third degree, for a term of imprisonment, for a term of imprisonment of five years.

(b) A person sentenced under paragraph (a) shall be released only by expiration of sentence and shall not be eligible for parole, control release, or any form of early release. Any person sentenced under paragraph (a) must serve 100 percent of the court-imposed sentence.

(c) Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to 775.084 or any other provision of law.

(d). It is the intent of the Legislature that offenders previously released from prison who meet the criteria set forth in paragraph (a) be punished to the fullest extent of the law and as provided in this subsection, unless the state attorney determines that extenuating circumstances exists which preclude the just prosecution of the offender, including whether the victim recommends that the offender not be sentenced as provided in this subsection. 2. For every case in which the offender meets the criteria in paragraph (a) and does not receive the mandatory minimum prison sentence, the state attorney must explain the sentence deviation in writing and place such explanation in the case fie maintained by the state attorney.

When a person is designated a prison releasee re-offender, the sentencing guidelines do not apply. Upon conviction, the court must sentence the accused person to the maximum penalty authorized by law, and he or she is not eligible for any form of discretionary release. Under these circumstances, immediate intervention by an experienced criminal defense attorney is essential.

Relevant Case Law

1. State of Florida v. Demetrius Walker, 965 So.2d 1281 (Fla. 2nd DCA 2007). In Walker, the appellant pled no contest to battery on a law enforcement officer, battery on a firefighter, resisting an officer with violence, and attempted robbery. He was designated a prison releasee reoffender as to each count, and was sentenced to five years in the Florida Department of Corrections, concurrently. In a motion for post-conviction relief, the appellant argued that he was not subject to the PRR enhancement because his offenses were not enumerated or forcible felonies under the PRR statute. The post conviction motion was denied. The second district court of appeal affirmed the post conviction court's denial of the appellant's motion as to the attempted robbery and resisting arrest with violence counts, but reversed the post conviction court's denial of the appellant's motion with respect to his sentence for battery on a law enforcement officer and battery on a firefighter. Citing to a Florida Supreme Court case, the second district reasoned that battery on a law enforcement officer (or firefighter) could be committed by a mere touching that would not necessarily involve the "use or threat of physical force or violence". In determining whether a crime constitutes a forcible felony, courts must consider only the statutory elements of the offense, regardless of the particular circumstances involved.

Resources

The following is a list of outside sources, prior blog posts, and other website sections on topics related to prison releasee reoffenders:

Links

1. HG. Org: St. Petersburg Prison Releasee Reoffender Defense Attorney
2. HG. Org: St. Petersburg Arson Defense Attorney
3. HG. Org: St. Petersburg Assault & Aggravated Assault Defense Attorney
4. HG. Org: St. Petersburg Battery & Aggravated Battery Defense Attorney
5. HG. Org: St. Petersburg Burglary Defense Attorney

Blog Posts

1. ​Do I Need a St. Petersburg Criminal Defense Attorney?
2. Inchoate (Incomplete) Crimes: Attempt, Solicitation, and Conspiracy

Related Sections

1. Arson
2. Aggravated Assault
3. Aggravated Battery
4. Burglary
5. Carjacking
6. Drug Trafficking
7. Homicide
8. Kidnapping
9. Robbery
10. Sexual Offenses

The Bottom Line

If you have been arrested for a felony offense involving the use or threat of violence, and you have been released from prison within the past three years, there is a very good possibility you will qualify for the PRR enhancement. Without a doubt, your best chance to avoid the enhancement is intervention by an experienced criminal defense attorney before the charge is filed. While the statute allows the State Attorney to "come off" a PRR sentence, I can tell you, as a former Pinellas county state prosecutor, that it rarely happens.

If you think you may qualify as a PRR, contact our St. Petersburg office immediately. Time is of the essence under these circumstances.