Florida Sentencing Enhancements (Pt. 5)

This is Part 5 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.  Part 4 reviewed the Violent Career Criminal (VCC) enhancement.  Today, I will discuss the Three-Time Violent Offender (“3 strikes, you’re out”) enhancement.  Following is the description, qualifications, sentencing enhancement, gain time issues, and the pertinent part of the statute for your reference.

Three-Time Violent Offender

Description

This is commonly referred to as the “Three Strikes You’re Out” law.  This enhancement gives the Court no discretion in sentencing if the offender meets the criteria.  This enhancement applies to an offender who has two prior convictions for enumerated felonies, and commits a new enumerated offense.

Qualifications

To be sentenced under this enhancement, the following qualifications must be met:

1. The state seeks to have the offender designated
2. The offender has 2 prior enumerated felony convictions (including withholds)
3. The prior convictions were on separate occasions (from each other and the present offense)
4. The present offense is an enumerated felony
5. The present offense is committed while the offender was serving any sentence imposed as a result of a prior eunumerated 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 for an enumerated crime, whichever is later, and
6. The offender has not received a pardon on the ground of innocence for any felony or other qualified offense necessary for the enhancement, and a convction of a crime necessary to the operation of ht law has not been set side in any post-convictino proceeding.

The enumerated offenses are listed is Fl. Stat. 775.084(1)(c) as:

• 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 an elderly person or disabled adult;
• Aggravated manslaughter of a child;
• Unlawful throwing, placing, or discharging of a destructive device or bomb;
• Armed burglary
• Aggravated battery;
• Aggravated stalking;
• Home invasion/robbery;
• Carjacking; or
• An offense which is in violation of a law of any other jurisdiction if the elements of the offense are substantially similar to the elements of any felony offense enumerated in sub-subparagraphs a.-q., or an attempt to commit any such felony offense.

Sentencing

If the state proves the above qualifications, the offender is ineligible for sentencing under the sentencing code.  The Court has no discretion and MUST sentence the offender to the statutory maximum, as follows:

• For a capital, Life felony – Life
• For a First degree felony – 30 years mandatory
• For a second degree felony – 15 years mandatory
• For a third degree felony – 5 years mandatory

Although these are the minimum sentences the court must impose, the Court may impose longer sentences as authorized by law.

Gain Time

An offender sentenced under this enhancement is not eligible for parole, control release, or any other form of early release.  The offender can only be released upon the natural expiration of the Court’s sentence.

Statute

The relevant portion of the statute is listed below.

Fl. Stat. 775.084(1)(c) and (4)(c); Enumerated Offenses – Fl. Stat. 774.084(1)(c)

 (c) “Three-time violent felony offender” means a defendant for whom the court must impose a mandatory minimum term of imprisonment, as provided in paragraph (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, or attempting to commit, any of the following offenses or combination thereof:

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 of a destructive device or bomb;

m. Armed burglary;

n. Aggravated battery;

o. Aggravated stalking;

p. Home invasion/robbery;

q. Carjacking; or

r. An offense which is in violation of a law of any other jurisdiction if the elements of the offense are substantially similar to the elements of any felony offense enumerated in sub-subparagraphs a.-q., 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 enumerated in sub-subparagraphs 1.a.-q. and was committed:

a. While the defendant was serving a prison sentence or other sentence imposed as a result of a prior conviction for any offense enumerated in sub-subparagraphs 1.a.-r.; or

b. Within 5 years after the date of the conviction of the last prior offense enumerated in sub-subparagraphs 1.a.-r., or within 5 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 enumerated in sub-subparagraphs 1.a.-r., 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 postconviction proceeding.

(c)          1. The court, in conformity with the procedure established in paragraph (3)(b), must sentence the three-time violent felony offender to a mandatory minimum term of imprisonment, as follows:

a. In the case of a felony punishable by life, to a term of imprisonment for life;

b. In the case of a felony of the first degree, to a term of imprisonment of 30 years;

c. In the case of a felony of the second degree, to a term of imprisonment of 15 years; or

d. In the case of a felony of the third degree, to a term of imprisonment of 5 years.

2. Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law.

3. For an offense committed on or after July 1, 1999, a defendant sentenced under this section as a three-time violent felony offender shall be released only by expiration of sentence and shall not be eligible for parole, control release, or any form of early release.