Florida Sentencing Enhancements (Pt. 4)

This is Part 4 of the Florida Sentencing Enhancement Blog posts.  In Part 1 of the Florida Sentencing Enhancements blog, I discussed Prison Releasee Reoffender (PRR) enhancement.  I also reviewed the standard minimum and maximum sentences in Florida without these enhancements.  Part 2 discussed the Habitual Felony Offender (HFO) enhancement, and Part 3 discussed the Habitual Violent Felony Offender (HVFO) enhancement.  Today, I will discuss the Violent Career Criminal (VCC) enhancement.  Following is the description, qualifications, sentencing enhancement, gain time issues, and the pertinent part of the statute for your reference.

VCC – Violent Career Criminal

Description

A Violent Career Criminal (VCC) is an offender who has previously been convicted as an adult three or more times for an offense in this state or other qualified offense that is:

• Any forcible felony (Florida Stat. 776.08)
• Aggravated Stalking
• Aggravated Child Abuse
• Aggravated Abuse of the Elderly or Disabled Adult
• Lewd or Lascivious Battery/Molestions/Conduct/Exhibition
• Escape
• A felony violation of Chapter 790, involving the use or possession of a firearm

Qualifications

To be sentenced as a VCC, the following qualifications must be met:

1. The state seeks to have an offender designated as VCC.
2. The offender has 3 or more prior enumerated felony convictions (including withholds) (enumerated offenses listed above)
3. The prior convictions were on separate occasions (from each other the from the present offense)
4. The present offense is an enumerated felony  (listed above) committed on or after October 1, 1995
5. The current offense is committed while the offender was serving any sentence imposed as a result of a prior enumerated offense, or within 5 years of the date of conviction of the offender’s last prior enumerated felony, or within 5 years of the offender’s release from prison or other sentence (supervisions) for an enumerated offense, whichever is later; and
6. The offender has previously been incarcerated in a state or federal prison.

Sentencing

The Court has discretion to impose as sentence under the VCC designation, if the State proves the offender is qualified to be sentenced as such.  If the Court finds that it is not necessary for the protection of the public to sentence an offender as a VCC, and the offender meets the criteria for such designation, the court may choose not to sentence under the enhanced sentencing requirements.

However, if the Court finds that the offender qualifies for VCC enhancement, and designates the offender as a VCC, then the court MUST sentence the offender under the enhancements, to include severe minimum mandatory sentences as follows:

• 1st degree Felony or Life Felony – Life in prison
• 2nd degree felony – 30 years (minimum mandatory), with a maximum term not exceeding 40 years
• 3rd degree felony – 10 years (minimum mandatory), with a maximum term not exceeding 15 years

(Note that these sentences all have minimum mandatory sentences which, if convicted, an offender MUST be sentenced to as the minimum allowable sentence.  However, the court may sentence the offender above the minimum mandatory up to the maximum amount of time applicable under this designation, as outlined above).

Gain Time

An offender sentenced under this designation does qualify for gain time in prison, although the offender must serve 100% of the minimum mandatory sentence.  (Therefore, gain time will only be awarded to any prison sentence served above the minimum mandatory sentence).  An offender sentenced as a VCC is not eligible for any type of discretionary early release other than a pardon, executive clemency, or conditional medical release.

Additional Issues

In addition to the above designation and sentences, the legislature has also created an enhancement for a VCC designee if that offender possessed a firearm.  An offedenr who meets VCC criteria, and “who owns or has in his or her care, custody, possession, or control any firearm or electric weapon or device, or carries a concealed weapon, including a tear gas gun or chemical weapon or device, commits a felony of the first degree.”

Under these circumstances, the court must impose a mandatory minimum of 15 years prison, and longer if a greater term as a VCC is warranted.

Furthermore, the possession of a firearm by a VCC designee allows for juvenile adjudications of delinquency for enumerated felonies to count toward an offender’s previous conviction record.

Statute

Relevant portions of the statute are listed below: Fl. Stat. 775.087(1)(d) and (4)(d); Enumerated Offenses – Fl. Stat. 774.084(1)(d)

(d) “Violent career criminal” means a defendant for whom the court must impose imprisonment pursuant to paragraph (4)(d), if it finds that:

1. The defendant has previously been convicted as an adult three or more times for an offense in this state or other qualified offense that is:

a. Any forcible felony, as described in s. 776.08;

b. Aggravated stalking, as described in s. 784.048(3) and (4);

c. Aggravated child abuse, as described in s. 827.03(2)(a);

d. Aggravated abuse of an elderly person or disabled adult, as described in s. 825.102(2);

e. Lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct, or lewd or lascivious exhibition, as described in s. 800.04 or s. 847.0135(5);

f. Escape, as described in s. 944.40; or

g. 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 enumerated in subparagraph 1. and was committed on or after October 1, 1995, and:

a. While the defendant was serving a prison sentence or other sentence, or court-ordered or lawfully imposed supervision that is imposed as a result of a prior conviction for an enumerated felony; or

 b. Within 5 years after the conviction of the last prior enumerated felony, or within 5 years after the 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 an enumerated felony, whichever is later.

4. The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this paragraph.

 5. A conviction of a felony or other qualified offense necessary to the operation of this paragraph has not been set aside in any postconviction proceeding.

(d) The court, in conformity with the procedure established in paragraph (3)(c), shall sentence the violent career criminal as follows:

 1. In the case of a life felony or a felony of the first degree, for life.

 2. In the case of a felony of the second degree, for a term of years not exceeding 40, with a mandatory minimum term of 30 years’ imprisonment.

 3. In the case of a felony of the third degree, for a term of years not exceeding 15, with a mandatory minimum term of 10 years’ imprisonment.

(k)         1. A defendant sentenced under this section as a habitual felony offender, a habitual violent felony offender, or a violent career criminal is eligible for gain-time granted by the Department of Corrections as provided in s. 944.275(4)(b).

 2. For an offense committed on or after October 1, 1995, a defendant sentenced under this section as a violent career criminal is not eligible for any form of discretionary early release, other than pardon or executive clemency, or conditional medical release granted pursuant to s. 947.149.