The Florida Bar

Florida Bar Journal

Tough Times in the Sunshine State

Criminal Law


The Florida Legislature has taken aim at repeat and violent offenders with the enactment of several new mandatory sentencing measures.

Fueled by statistics showing Florida’s high rate of recidivism and violent gun crimes but low rate of prison sentences for repeat and violent offenders, and encouraged by prosecutors seeking more control over the plea-bargaining process, “Three Strikes and You’re Out” and “10/20/Life” came to life with a vengeance on July 1, 1999.1 These and other recently enacted minimum mandatory and enhanced penalty laws—10 in total—will take sentencing discretion away from judges and, at the same time, apply political pressure to elected state attorneys to discourage them from bargaining these cases to lesser sentences.2

Interestingly, the legislature did not allot additional funds to prosecutors, public defenders, or the courts to deal with the additional trials that will inevitably ensue to dispose of these new cases. Instead, the legislature has given the Department of Corrections $500,000 to provide public service announcements which advertise the new minimum mandatory penalties.3 The theory apparently is that if criminals know of the law, they will not violate it by committing crimes with firearms. Hence, the statutes are being advertised on radio, television, and billboards and in the newspapers.

For all state felonies committed from here on, Florida’s recidivist offenders are now subject to six different “career criminal” classifications, and even first offenders face the onerous “10/20/Life” for possessing or using a firearm during certain felonies.

The legislature also has added three-year minimum mandatory sentences for the crimes of aggravated assault on a law enforcement officer,4 aggravated assault or aggravated battery on an elderly person,5 and possession of a firearm or destructive device by a convicted felon,6 and a five-year minimum mandatory sentence for aggravated battery on a law enforcement officer.7 In addition, the following minimum mandatory penalties for drug offenses are now in effect: three years for possession or sale of 25 to 2,000 pounds or 300 to 2,000 plants of cannabis, 28 to 200 grams of cocaine, and four to 14 grams of heroin, opium or morphine; seven years for possession or sale of over 2,000 to 10,000 pounds or over 2,000 plants of cannabis and 200 to 400 grams of cocaine; and 15 years for over 10,000 cannabis plants and 14 to 28 grams of heroin, opium, or morphine. Similar three- and seven-year minimum mandatories were created for the possession or sale of methaqualone, phencyclidine, amphetamines, and flunitrazepam (roofies).8 The import of these laws is, essentially, that prosecutors will get exactly what they lobbied so feverishly for: tougher sentences and control over plea bargaining.

Legislative Intent

One need look no further than the legislative history of Florida’s newest enhanced penalty statutes to glean the rationale for what has come to pass. The history includes:

• Florida ranks among the most violent states in the nation, and in 1996 had the highest violent crime rate of any state, exceeding the national average by 66 percent.

• But Florida ranks lower in incarceration rates than many other states with lower violent crime rates. In 1997, only 15.6 percent of all persons convicted of a felony were sentenced to state prison, the second lowest rate of incarcerated felons since 1984, and the rate of incarcerated felons has declined seven out of the last eight years.

• A substantial and disproportionate number of serious crimes are committed in this state by a relatively small number of repeat and violent felony offenders, so priority should be given to the incarceration of career criminals for extended prison terms. In the case of violent career criminals, such extended terms must include substantial minimum terms of imprisonment that will effectively incapacitate the offender, prevent future crimes, and reduce violent crime rates.

• Criminals who use guns during the commission of violent crimes pose an increased danger to the lives, health, and safety of Florida’s citizens and to Florida’s law enforcement officers, who daily put their lives on the line to protect citizens from violent criminals.

• For all of these reasons, it is the intent of the legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law. Criminals who use guns to commit violent crimes must be vigorously prosecuted and the state must therefore demand that minimum mandatory terms of imprisonment be imposed.9

“10/20/Life”

In light of these statistics and the legislature’s announced intent, the enactment of “10/20/Life” should have come as no surprise. Patterned after 1997’s California Assembly Bill 4, CS/CS/HB 113 amends §775.087(2) to require the imposition of minimum mandatory terms of imprisonment for crimes involving firearms, regardless of whether use of the gun is an element of the crime itself, or the offender has ever been arrested, let alone convicted before.

For all enumerated offenses committed on or after July 1, 1999, first-timers now beware:

Instead of the well-known three-year firearm minimum mandatory sentence, §775.087(2)(a)1 now requires a judge to impose a minimum mandatory 10-year term of imprisonment for any person who “actually” possesses a firearm or destructive device any time during the course of the commission or attempt to commit an enumerated felony offense.10 For the crimes of burglary of a conveyance, aggravated assault, and possession of a firearm or destructive device by a felon, a three-year minimum mandatory—not the 10-year minimum—still applies.11 While the bill provides that “[p]ossession may also be proven by demonstrating that the defendant had the firearm within the immediate physical reach with ready access with the intent to use [it] during the commission of the offense,”12 it also reinforces the notion that an accomplice, i.e., an offender who never possessed the firearm during the commission of the crime, may not receive a minimum mandatory sentence for possession by a codefendant.13

Under §775.087(2)(a)2, the court must impose a minimum mandatory 20-year sentence if the firearm or destructive device is discharged during the course of the commission of an enumerated felony offense.14 Unlike the 10-year provision, the legislature did not exempt burglary of a conveyance, aggravated assault, or possession of a firearm or destructive device by a felon from the 20-year penalty.15

Under §775.087(2)(a)3, the court must impose a minimum mandatory 25-year sentence, and may impose up to a life sentence, if the firearm or destructive device is discharged during the course of the commission or attempt to commit an enumerated felony offense16 and causes death or great bodily harm. Again, the crimes of burglary of a conveyance, aggravated assault, and possession of a firearm or destructive device by a felon are not exempted from the mandatory penalty.

Although the 10-, 20-, and 25-year terms are mandatory, they are not all an offender faces; for the statute does not prohibit a judge from imposing a longer sentence of incarceration as authorized by law, including the death penalty.17

Further, except for felonies in which the weapon or firearm is an essential element, their possession or use results in the reclassification of a first degree felony to a life felony, a second degree felony to a first degree felony, and a third degree felony to a second degree felony.18

Additionally, adjudication of guilt or imposition of sentence shall not be “suspended, deferred, or withheld, and the defendant is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency, or conditional medical release under s. 947.149, prior to serving the minimum sentence.”19

It is also the express intent of the legislature that all three of the new minimum mandatory sentences shall be imposed for each qualifying count. However, the statute does not require that the minimum mandatories be imposed consecutively.20 In its committee report, the legislature does encourage courts to impose these terms consecutive to imprisonment handed down for any other felony offense,21 but specifies that this provision is not mandatory and the statute thus does not explicitly prohibit a court from imposing concurrent sentences for multiple qualifying counts.22

Machine Guns

When it comes to machine guns or semiautomatic firearms with high-capacity detachable box magazines, the rules have changed a bit, too. When an offender possesses such a weapon at any time during the course of the commission or attempt to commit an enumerated felony offense under §775.087(3)(a)1,23 The court is required to impose a minimum term of 15 years’ imprisonment, not 10, or eight, as the statute formerly proscribed.

The remainder follows suit: The penalty for discharge of such a weapon during the commission or attempt to commit an enumerated felony offense merits the mandatory minimum 20-year sentence.24 and if, during the commission or attempt to commit an enumerated offense, a victim suffers great bodily harm or is killed, the minimum mandatory 25-year term must be imposed.25

Recidivist Offender Laws

With the addition of two new recidivist sentencing measures, there are presently six “career criminal” classifications, each of which must be initiated by the state.26 They are:

Habitual Offender (Discretionary)

Under §§775.084(1)(a) and (4)(a), a judge has discretion to sentence a person as a habitual offender if the offender meets the following criteria:

1) The state seeks to have the offender so designated;27

2) The offender has two prior felony convictions, including “withholds”;28

3) The prior convictions were on separate occasions (from each other and from the present offense);29

4) The present offense is any felony committed while the offender was serving any sentence imposed as a result of a prior felony, or within five years of the date of conviction of the offender’s last prior felony, or within five years of the offender’s release from prison or other sentence, whichever is later;30

5) The present offense and one of the “priors” are not violations of §893.13 relating to the purchase or possession of a controlled substance; and

6) The offender has not received a pardon on the ground of innocence for any felony or other qualified offense that is necessary for the enhancement, and a conviction of a crime necessary to the operation of the law has not been set aside in any post-conviction proceeding.

If, after the court has accorded the defendant the full rights of confrontation and cross-examination, the state proves an offender is a habitual offender by a preponderance of the credible evidence,31 a judge may impose a prison sentence which is up to 10 years, for third degree felonies; 30 years, for second degree felonies; and life imprisonment, for first degree and life felonies.32

However, a judge need not sentence an offender as a habitual offender if such a sentence is not necessary for the protection of the public.33 it is thus lawful for a judge to exercise discretion and sentence a qualifying offender within the Criminal Punishment Code (“the code”) and without regard to any enhancement.34

Offenders sentenced as habitual offenders are also eligible for gaintime granted by the Department of Corrections.35

Habitual Violent Offender (Discretionary)

A judge has similar discretion under §§775.084(1)(b) and (4)(b) to sentence a person as a habitual violent offender36 if the offender meets the following criteria:

1) The state seeks to have the offender so designated;37

2) The offender has one prior enumerated violent felony conviction, again including “withholds”;38

3) The present offense is any felony committed while the offender was serving a sentence imposed as a result of a prior enumerated offense, or within five years of the date of conviction of the offender’s last prior enumerated felony, or within five years of the offender’s release from prison or other sentence imposed as a result of a prior conviction for an enumerated felony, whichever is later; and

4) 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 conviction of a crime necessary to the operation of the law has not been set aside in any post-conviction proceeding.

The enumerated offenses are set forth in §775.084(1)(b).39

If the state proves an offender is a habitual violent offender,40 a judge may impose the following penalties, along with these minimum mandatory terms:

1) 10 years, with a minimum mandatory five years, for third degree felonies;

2) 30 years, with a minimum mandatory 10 years, for second degree felonies; and

3) Life, with a minimum mandatory 15 years, for first degree and life felonies.

As with habitual offenders, a judge need not sentence a qualified offender as a habitual violent offender if the sentence is unnecessary to protect the public.41 it is thus lawful for a judge to qualify an offender as a habitual violent offender but impose sentence within the code and without regard to any enhancement, including the minimum mandatory terms.42 and, even if a habitual violent offender sentence is imposed, the court still has discretion whether to impose all or any portion of the minimum mandatory terms.43

Offenders sentenced as habitual violent offenders are similarly eligible for gaintime granted by the Department of Corrections, although they must serve 100 percent of the minimum mandatory.44

Three-Time Violent Offender (Mandatory)

Sections 775.084(1)(c) and (4)(c)’s newly enacted “Three Strikes and You’re Out”45 provides the court with no discretion but to impose the statutory maximum term of imprisonment if the offender meets the following criteria:

1) The state seeks to have the offender so designated;46

2) The offender has two prior enumerated felony convictions, including “withholds”;47

3) The prior convictions were on separate occasions (from each other and from 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 enumerated offense, or within five years of the date of conviction of the offender’s last prior enumerated felony, or within five 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 conviction of a crime necessary to the operation of the law has not been set aside in any post-conviction proceeding.

The enumerated offenses are set forth in §775.084(1)(c).48

If the state proves an offender warrants a third strike,49 The offender is ineligible for sentencing under the code and a judge must sentence the person to prison for the statutory maximum.

While the legislature expressly provided that a judge has no discretion and must impose these penalties,50 The statute does not prohibit a judge from imposing a longer sentence of incarceration as authorized by law.51

Finally, an offender sentenced under this section shall not be eligible for parole, control release, or any other form of early release, and instead shall be freed only upon the natural expiration of the court’s sentence.52

Violent Career Criminal (Discretionary)

Under §§775.087(1)(d) and (4)(d), a judge has discretion to sentence a person as a violent career criminal53 if the offender meets the following criteria:

1) The state seeks to have the offender so designated;54

2) The offender has three or more prior enumerated felony convictions, including “withholds”;55

3) The prior convictions were on separate occasions (from each other and from the present offense);

4) The present offense is an enumerated felony committed on or after October 1, 1995;

5) The present offense is committed while the offender was serving any sentence imposed as a result of a prior enumerated offense, or within five years of the date of conviction of the offender’s last prior enumerated felony, or within five years of the offender’s release from prison or other sentence for an enumerated crime, whichever is later; and

6) The offender has previously been incarcerated in a state or federal prison.

The enumerated offenses are set forth in §775.084(1)(d).56

If the state proves that an offender warrants what is, in essence, a fourth strike,57 The court has discretion whether to impose a violent career criminal sentence, depending upon whether it is necessary to protect the public.58 However, if the court chooses to sentence an offender as a violent career criminal, unlike a habitual offender or habitual violent offender, the court has no discretion and must impose the following severe mandatory minimum terms:59

1) 10 years, with a maximum term not to exceed 15 years, for third degree felonies;

2) 30 years, with a maximum term not to exceed 40 years, for second degree felonies; and

3) Life imprisonment, for first degree and life felonies.

Like habitual offenders and habitual violent offenders, though, offenders sentenced as violent career criminals are eligible for gaintime granted by the Department of Corrections, although they must serve 100 percent of the minimum mandatory.60 Violent career criminals are ineligible, however, for any form of discretionary early release other than pardon, executive clemency, or conditional medical release.61

Violent career criminals are different in several other respects as well. First, the legislature has created a hybrid crime, possession of a firearm by violent career criminal.62 This offense also encompasses possession of a mere weapon. And under the right circumstances, Florida courts may classify nearly anything as a weapon, even a dog or a stick, for example.63 The statute provides:

Regardless of whether an offender has been previously sentenced as a V.C.C., any person who meets the V.C.C. 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.”64

Under these circumstances, a judge must impose a mandatory minimum term of 15 years’ imprisonment, and longer if a greater term as a violent career criminal is warranted.65 Here, too, a violent career criminal sentenced under this section is ineligible for any form of discretionary early release other than pardon, executive clemency, or conditional medical release.66

Second, and distinct from all other enhanced penalty laws, the possession of a firearm by a violent career criminal statute expressly provides that juvenile adjudications of delinquency for enumerated felonies count toward an offender’s previous conviction record.67 Based on §775.084(2),68 prosecutors may argue that a withhold of adjudication of delinquency counts too.

Third, and finally, a person sentenced as a violent career criminal has the right of direct appeal, and both the state and the offender may petition the trial court to vacate an illegal sentence at any time.69 However, the legislature has limited that right, for “the determination of the trial court to impose or not to impose a violent career criminal sentence is presumed appropriate and no petition or motion for collateral or other postconviction relief may be considered based on an allegation either by the State or the offender that such sentence is inappropriate, inadequate, or excessive.”70 Moreover, with respect to both direct appeal and collateral review of violent career criminal sentences, no claim may be filed more than two years after the judgment and sentence become final, “unless it is established that the basis for the claim could not have been ascertained at the time by the exercise of due diligence. Technical violations and mistakes at trials and sentencing proceedings involving violent career criminals that do not affect due process or fundamental fairness are not appealable by either the State or the defendant.”71

Prison Releasee Reoffender (Mandatory)
Under §775.082(9)(a)3, a judge has no discretion and must sentence a person as a prison releasee offender72 to the statutory maximum term of imprisonment if the offender meets the following criteria:
1) The state seeks to have the offender so designated;73
2) The present offense is an enumerated felony; and
3) The offender committed the enumerated felony within three years of being released from prison, or while serving a prison sentence, or while on escape status from a state prison sentence.

The enumerated offenses are set forth in §775.082(9)(a)1.74
If the state proves an offender is a prison releasee offender,75 the offender is not eligible for sentencing under the guidelines and a judge must send the person to prison for the statutory maximum.76

The legislature recently deleted from the statute two potent mitigating factors upon which the state could, and frequently does, rely to justify a sentencing deviation: not having sufficient evidence to prove the highest charge available,77 and not being able to obtain the testimony of a material witness.78 However, the legislature does permit the state to consider “extenuating circumstances. . . which preclude the just prosecution of the offender, including whether the victim recommends that the offender not be sentenced as provided in this subsection.”79 The court, though, is not permitted to make such a finding of its own accord.80

Repeat Sexual Batterers (Mandatory)
Under §794.0115(3)(a),81 a judge has no discretion and must sentence a repeat sexual batterer to a mandatory minimum term of imprisonment of 10 years if the offender meets the following criteria:
1) The state seeks to have the offender so designated;82
2) The present offense is an enumerated felony;
3) The enumerated felony was committed while the offender was serving any sentence imposed as a result of a prior enumerated offense, or within 10 years of the date of conviction of the offender’s last prior enumerated felony, or within 10 years of the offender’s release from prison or other sentence for an enumerated crime, whichever is later; and
4) The offender has at least one previous conviction of a felony, attempt or conspiracy to commit an enumerated felony sexual battery offense.

The enumerated crimes are set forth in §794.0115(1)(a).83

If the state proves an offender is a repeat sexual batterer,84 a judge must impose a mandatory minimum sentence of 10 years’ imprisonment, or longer if a greater term is warranted.85

The State’s Report Card

If simply classifying eligible offenders were not dizzying, and the prospect of actually resolving all of these cases not daunting enough, the burden on the state increases substantially, for it must now abide by “10/20/Life’s” onerous reporting requirements.

“10/20/Life” requires that any time a qualifying offender fails to receive the new minimum mandatory sentence, the state must place an explanation in its case file (not in the court file, although that was originally intended) and, on a quarterly basis, submit copies of each “deviation memorandum” to the president of the Florida Prosecuting Attorneys Association, Inc. These memos will be made available to the public for at least 10 years.86

The state also must send a comprehensive report each year to the Speaker of the Florida House, the President of the Florida Senate and the Executive Office of the Governor. This report must include the number of charges made by law enforcement that were received during the year for all qualifying offenders. The report also must designate each offender’s case number, the final disposition and whether the minimum mandatory sentence was imposed, as well as each offender’s age, gender, race, and ethnicity. These reports will be made available to the public on the Internet by July 1, 2001.

forcing the state to document those cases which, in the judgment of the state attorney, presented case-specific circumstances to justify not imposing the required penalties, the legislature’s intention is to make the state more accountable for charging decisions. That being said, it is clear that more is at stake here than mere bookkeeping. For lack of a better phrase, the legislature has put the “squeeze” on, as the bill portends: “Since the state attorneys are elected officials, the reports could also be used by political opponents to show a lack of willingness to file the appropriate charges resulting in the imposition of minimum mandatory sentences.”87

The legislature’s motive is not subtle. The ostensible purpose of the state’s having to file a deviation memo in each case where an officer charges an offender with a qualifying offense is simply for the state attorney to explain why he or she did not seek the minimum mandatory. Theory and practice differ. Realistically, an elected state attorney understandably would be reticent to file any memorandum which could later be used by an opponent to allege the chief prosecutor is “soft on crime.” So, too, would a state attorney be reluctant to forego an enhanced sentence and suffer financially under the reasonable belief that the legislature’s funding is to be “performance-based.” Fear of political ouster and potential loss of revenue are strong motivators indeed. And this is precisely what the legislature wants: compelled compliance with these laws.

Impact

As best as the legislature has been able to predict, the primary impact of “10/20/Life” is expected upon the Department of Corrections due to the projected increases in inmate population.88 However, the legislature has calculated that there is currently a surplus of some 4,000 to 5,000 prison beds, obviating the need to construct additional lodging in the short-term.89 In fact, the bill anticipates that, at most, a mere 365 more beds need be added by fiscal year 2003–2004. The estimated increase in inmate population is similarly proportionate.90

The legislature bases these figures on the following assumptions: First, the number of people sentenced for crimes involving a gun will remain relatively flat. Second, the percentage of offenders receiving a prison sentence will remain at current levels. And, third, these offenders will serve longer terms due to the increased sanctions. Accordingly, the bed impact is actually the result of fewer releases rather than increased admissions.91

ould also occur due to fewer plea bargains and more aggressive prosecution,92 although the extent to which this may increase or decrease the prison population is, at best, “indeterminate.”93 For that matter, while the bill further professes there could be an impact on the courts, state attorneys, public defenders, and local law enforcement and jails if more jury trials result, it deems this “indeterminate” as well. Nevertheless, the legislature is satisfied that the bill’s deterrent effect alone will sufficiently decrease prison admissions.94

Discretion

taking discretion away from judges, these new provisions give ultimate control in charging, plea bargaining, and sentencing decisions to the state attorneys. But with this newly attained discretion comes an additional responsibility: accountability. With reelection and, perhaps, funding tied directly to publicly reported sentencing statistics, it is actually unlikely that an elected state attorney will exercise discretion in these cases. This is especially true since there are now enough prison beds to accommodate all qualifying offenders.

Those familiar with the criminal justice system must acknowledge that there are always injustices that occur in blindly adhering to mandatory sentencing schemes. In the past, prosecutors have not hesitated, in appropriate circumstances, to exercise discretion in filing or plea bargaining a case to avoid a miscarriage of justice. In the future, with extremely severe sentences for first offenders now mandated, prosecutorial discretion will become increasingly more important. The unfortunate likelihood, however, is that discretion may be exercised with decreasing frequency, if at all.

Consequently, despite laudable intentions, the ultimate result of statutes which tie the hands of judges and prosecutors will be that more cases must be resolved by jury trials, not by pleas. While the number of cases tried is sure to increase, no provisions have been made for more judges, prosecutors, or public defenders or for courtroom, clerical, or corrections staff, not to mention more courtrooms to assist with the inevitable overload. After all, most judges can try, at most, one or two cases per week. Where is the backlog to go? And since the possible mandatory sentences a defendant faces is a legitimate consideration in setting or denying bond, how many more defendants will be in jail awaiting trial?95

With all of these concerns in mind, consider, with some degree of hope, that the legislature has voiced these words of reason:
It is also the intent of the Legislature that prosecutors should appropriately exercise their discretion in those cases in which the offenders’ possession of the firearm is incidental to the commission of a crime and not used in furtherance of the crime, used in order to commit the crime, or used in the preparation to commit the crime.96

Conclusion

The independence of the judiciary and the public’s trusted reliance upon the courts to ensure that the rule of law is rationally and fairly applied are jeopardized by laws that give complete discretion to government prosecutors. Florida’s recidivist, “10/20/Life,” and other enhanced penalty statutes will mean lengthier prison terms and take discretion away from the courts in plea bargaining and sentencing. The sad, new reality is that judges may thus have very little to say whether justice is dispensed fairly, if at all.

As for whether these laws will serve their ultimate goal, decreasing crime, or will merely overburden the criminal justice system, only time will tell. q

1 See Fla. Stat. §775.087(2)(a)1-3 (1999).
2 These laws also come into effect on the heels of the new Criminal Punishment Code, applicable to all felonies except capital felonies committed on or after October 1, 1998. The code effectively eliminated the top of “guidelines” sentences. See Fla. R. Crim. P. 3.704 (1998). Instead, a score is prepared which gives a minimum sentence that must be imposed. In turn, a defendant may be sentenced up to the statutory maximum for each offense, and the court may impose consecutive sentences on each count as well. See Fla. R. Crim. P. 3.704(25). Thus, for crimes for which there are no minimum mandatory or enhanced sentencing provisions, the court retains discretion. For example, although a defendant may score “any non-state prison sanctions” under the Code, the court is permitted to impose the minimum sentence or, without any justification or legal reasons to depart upward, a prison sentence up to and including the statutory maximum.
3 See Fla. Stat. §775.087(7).
4 See CS/CS/HB 121, May 21, 1999; Fla. Stat. §787.07(2)(c) (1999).
5 See CS/CS/HB 121; Fla. Stat. §784.08(1) (1999).
6 See CS/CS/HB 113, March 31, 1999; §775.087(2)(a)1.r.
7 See CS/CS/HB 121; §784.07(2)(d).
8 CS/CS/HB 121. And see Fla. Stat. §893.135. Interestingly, for trafficking in the three-year and seven-year amounts of all of these drugs, the statute provides that sentence must be imposed “pursuant to the Criminal Punishment Code.” In other words, these defendants may receive the three-year and seven-year minimum mandatories, but their sentences may not be enhanced under any of the recidivist penalty provisions. However, for 15-year trafficking crimes, no such proscription requiring sentencing under the Code applies, meaning that these sentences may be enhanced as well.
9 See CS/CS/HB 113; CS/CS/HB 121.
10 These crimes include the commission or attempted commission of: murder; sexual battery; robbery; burglary; arson; aggravated assault; aggravated battery; kidnapping; escape; aircraft piracy; aggravated child abuse; aggravated abuse of an elderly person or disabled adult; unlawful throwing, placing or discharging or a destructive device or bomb; carjacking; home invasion robbery; aggravated stalking; and the newly added qualifying offenses of trafficking in or capital importation of illegal drugs and possession of a firearm by a felon.
11 Id. And see Fla. Stat. §775.087(2)(a)1.r.
12 See Fla. Stat. §775.087(4). “10-20-Life” arguably expands the former statute’s definition of “possession” of a firearm (which defined possession as “carries, displays, uses, threatens or attempts to use”) to now include what is, in essence, constructive possession, which was specifically excluded under the former law. See, e.g., Kenny v. State, 693 So. 2d 1136, 1137 (Fla. 1st D.C.A. 1997); Demps v. State, 649 So. 2d 938, 939 (Fla. 5th D.C.A. 1995) (“More than vicarious or constructive possession of the firearm is required during the course of the commission of the felony.”). See also Dye v. State, 667 So. 2d 935 (Fla. 2d D.C.A 1996).
13 See Earnest v. State, 351 So. 2d 957 (Fla. 1977) (“We agree that the term ‘possession’ does not clearly encompass vicarious possession, and we agree that petitioner is entitled to the benefit of the doubt. The legislature has not unequivocally expressed an intention to require three year minimum sentences for all persons who participate in one of the enumerated criminal adventures”); Kenny v. State, 693 So. 2d 1136 (Fla. 1st D.C.A. 1997).
14 The crimes are identical to those qualifying an offender for the 10-year sentence and include burglary of a conveyance and aggravated assault, which will carry the 20-year sanction for discharge of a firearm.
15 Id.
16 The crimes are identical to those qualifying for the 10- and 20-year sentences. Id.
17 See Fla. Stat. §775.087(2)(b). However, “10-20-Life” apparently did not alter the court’s ability to impose a youthful offender sentence without regard to any of the new minimum mandatories. See Fla. Stat. §958.04(2) (1998).
18 See Fla. Stat. §775.087(1)(a), (b) and (c). The crimes are similarly reclassified if during the commission of the felony the defendant commits an aggravated battery.
19 Fla. Stat. §775.087(1)(c).
20 See Fla. Stat. §775.087(3)(d).
21 Id.
22 See CS/CS/HB 113: Comments: Reports and Memorandums: Fiscal Analysis and Economic Impact Statement, at 17.
23 These crimes include the commission or attempted commission of: murder; sexual battery; robbery; burglary; arson; aggravated assault; aggravated battery; kidnapping; escape; sale, manufacture, delivery or intent to sell, manufacture or deliver any controlled substance; aircraft piracy; aggravated child abuse; aggravated abuse of an elderly person or disabled adult; unlawful throwing, placing or discharging or a destructive device or bomb; carjacking; home invasion robbery; aggravated stalking; and trafficking in or capital importation of illegal drugs.
24 See Fla. Stat. §775.087(3)(a)2.
25 See Fla. Stat. §775.087(3)(a)3.
26 The court is not permitted to sua sponte initiate an enhanced penalty proceeding against an offender. See Hinrichsen v. State, 711 So. 2d 1337 (Fla. 2d D.C.A. 1998). Fairness and separation of powers dictate that proceedings be initiated by the prosecution. See Young v. State, 699 So. 2d 624 (Fla. 1997).
27 The defendant must be personally and timely served with the notice of intent to seek an enhanced sentence, See Fla. Stat. §775.084(3)(a)2., and the court must obtain and consider a presentence investigation report, unless waived by the defendant. See Fla. Stat. §775.084(3)(a)1. However, a defendant who plea bargains for an habitual offender sentence effectively waives the right to a presentence investigation. See Barton v. State, 706 So. 2d 399 (Fla. 2d D.C.A. 1998). Indeed, defendants are required to be personally and timely served with enhancement notices and the court is required to consider presentence investigations for defendants to be sentenced under the habitual violent offender, “Three Strikes” and repeat sexual batterer laws as well. See Fla. Stat. §775.084(3)(a)2 and (3)(a)1, (3)(b)2 and (3)(b)1 and §794.0115(2)(b) and (2)(a), respectively. Defendants to be sentenced as violent career criminals must also be personally noticed, See Fla. Stat. §775.084(3)(c)1, but, unlike the others, the statute does not require the consideration of a presentence investigation. See generally §775.084(3)(c).
28 “[T]he placing of a person on probation or community control without an adjudication of guilt shall be treated as a prior conviction.” Fla. Stat. §775.084(2). The revised statute no longer requires that the new crime for which adjudication is withheld be committed during the period of supervision. See, e.g., Overstreet v. State, 629 So. 2d 125 (Fla. 1993) (construing former statute and declining to habitualize defendant based on prior withhold of adjudication for which he was incarcerated at time of substantive offense). Since Overstreet was decided based upon the plain reading of the statute, a defendant similarly situated under the present version would qualify for an enhanced sentence due to the legislature’s having deleted that criterion. On a separate note, prosecutors may argue that a sealed criminal history record nonetheless qualifies as a previous conviction for enhancement purposes as well. Under Fla. Stat. §943.059(4), (4)(a)2 (1998), a sealed record is not confidential with regard to “criminal justice agencies for their respective criminal justice purposes” and when the subject “[i]s a defendant in a criminal prosecution.” For an interesting perspective on whether a withhold of adjudication qualifies as a “conviction” in myriad contexts other than recidivist sentencing—such as character impeachment, immigration consequences, loss of civil rights and sealings and expungements—consider §775.13 which, effective July 15, 1998, reclassifies as “convictions” any felony determination of guilt “regardless of whether adjudicaton is withheld.” Moreover, the statute requires defendants to register with the sheriff within 48 hours of the conviction, and failure to do so constitutes an independent second degree misdemeanor. See Fla. Stat. §775.13(2), (7).
29 A conviction must be final before it is a “prior” for habitual offender purposes. See Breeze v. State, 641 So. 2d 450 (Fla. 1st D.C.A. 1994); Delguidice v. State, 554 So. 2d 35 (Fla. 4th D.C.A. 1998). For example, a previous felony conviction which is pending appeal cannot constitute a “predicate conviction” even though it is ultimately affirmed. Thus, upon resentencing, the court can only consider convictions that were final at the time of the original sentence. Additionally, multiple convictions on the same day count as a single prior felony conviction, even if the convictions were under separate cases. See May v. State, 713 So. 2d 1087 (Fla. 2d D.C.A. 1998). However, if imposed before separate judges on the same day, then each does count as a separate conviction. See Price v. State, 721 So. 2d 360 (Fla. 5th D.C.A. 1998). Further, as of 1993, the habitual offender statute requires the prior felony both to occur and for the defendant to be sentenced prior to the current offense. See Rhodes v. State, 704 So. 2d 1080 (Fla. 1st D.C.A. 1997); Ridley v. State, 702 So. 2d 559 (Fla. 2d D.C.A. 1997). See also Smith v. State, 24 Fla. L. Weekly D1901 (Fla. 5th D.C.A. August 13, 1999); Gavlick v. State, 24 Fla.L.Weekly D1886 (Fla. 2d D.C.A. August 11, 1999); State v. Hall, 24 Fla. L. Weekly D1504 (Fla. 1st D.C.A. June 22, 1999).
30 Under the former version of the statute, the felony for which the defendant is being sentenced must have been committed within five years of release from prison or commitment, not release from probation, community control or parole. See Reynolds v. State, 674 So. 2d 180 (Fla. 2d D.C.A. 1996); Allen v. State, 487 So. 2d 410 (Fla. 4th D.C.A. 1986); Gavlick, 24 Fla. L. Weekly D1886. This is no longer the case. For habitual offenders, habitual violent offenders, and violent career criminals, the statute now provides that the previous conviction may occur within the requisite time of a “defendant’s release from probation, community control, control release, conditional release, parole, or court-ordered or lawfully imposed supervision or other sentence imposed that is commitment imposed as a result of a prior conviction” for a felony (habitual offender) or enumerated felony offense (habitual violent offenders and violent career criminals), whichever is later. See Fla. Stat. §§775.084(1)(a)2.b (habitual offender), 775.084, 775.084(1)(b)2.b (habitual violent offender), and 775.084(1)(d)2.b (violent career criminal), respectively. For “Three Strikes,” the previous conviction may also occur within time of “the defendant’s release from probation, community control, or other sentence imposed as a result of a prior convistion for any [enumerated] offense, whichever is later,” but, unlike the other categories, the statute does not specify that the previous conviction may occur following release from control release, conditional release, or parole. See Fla. Stat. §775.084(1)(c)2.b.
31 See Fla. Stat. §775.084(3)(a).
32 However, where a defendant was not originally sentenced as a habitual offender because the court mistakenly believed he had been convicted of a life felony (for which a habitual offender sentence could not be applied under that version of the statute), upon remand, the court was free to impose a habitual offender sentence and the sentence would not be vindictive under North Carolina v. Pearce, 395 U.S. 711 (1969). See King v. State, 24 Fla. L. Weekly D1657 (Fla. 4th D.C.A. July 14, 1999). Additionally, when an offense has already been enhanced, the defendant cannot be sentenced as a habitual offender. See, e.g., Cabal v. State, 678 So. 2d 315 (Fla. 1996). For example, a defendant convicted of a third offense petit theft is not subject to habitual offender penalties, since the crime has already been “enhanced.” See Berch v. State, 691 So. 2d 1148 (Fla. 3d D.C.A. 1997). However, a conviction for felony petit theft may be utilized as a qualifying “prior” under §775.084. See McFadden v. State, 24 Fla. L. Weekly S263 (Fla. June 10, 1999). Finally, for drug trafficking from 28 to 400 grams, since the language of §893.135(1)(b) states that a defendant “shall be sentenced pursuant to the guidelines,” the court cannot impose an habitual offender sentence. See Stanford v. State, 706 So. 2d 900 (Fla. 1st D.C.A. 1998). However, for post-July 1, 1999 crimes, the new three-year and seven-year minimum mandatories do apply. See Fla. Stat. §893.135. And see supra note 8.
33 See Fla. Stat. §775.084(3)(a)6, (4)(e). A trial court need not make a specific finding of fact that a sentence as a habitual offender is necessary to protect the public. See Moten v. State, 735 So. 2d 566 (Fla. 3d D.C.A. 1999). And, since a sentence as a habitual offender is exempt from the sentencing guidelines (now known as the Florida Criminal Punishment Code), no reasons for an upward departure are required either. Id.
34 However, if the court finds the defendant qualifies as a habitual offender but does not so sentence the defendant, it must file written reasons for the sentence or a transcript of the sentencing hearing within seven days. See §775.084(3)(a)(6).
35 See Fla. Stat. §775.084(4)(k)1.
36 The habitual offender statute does not violate the single subject rule and is constitutional. See McKenzie v. State, 24 Fla. L. Weekly D1698 (Fla. 3d D.C.A. July 21, 1999).
37 See supra note 27.
38 See supra note 28.
39 These crimes include the commission, attempted commission or conspiracy to commit: 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; unlawful throwing, placing or discharging of a destructive device or bomb; armed burglary; aggravated battery; and aggravated stalking. Note that “possessory” drug crimes under §893.13 are not excluded from the enumerated habitual violent offender offenses, as they are for habitual offenders. See Fla. Stat. §775.084(1)(a)3.
40 See supra note 31.
41 See supra note 33.
42 The court is similarly obliged to file its written reasons or a transcript of the sentencing hearing within seven days. See supra note 34.
43 See State v. Hudson 698 So. 2d 831 (Fla. 1997); Walsingham v. State, 602 So. 2d 1297 (Fla. 1992); Zequeira v. State, 671 So. 2d 279 (Fla. 3d D.C.A. 1996). Since imposition of the minimum mandatory portion of a habitual violent offender sentence is discretionary, the court is required to orally pronounce the minimum mandatory term at the time of the sentence. Failure to do so will result in a remand for imposition of a habitual violent offender sentence without any minimum mandatory. See Winchell v. State, 24 Fla. L. Weekly D1614 (Fla. 2d D.C.A. July 7, 1999).
44 See supra note 35.
45 See CS/CS/HB 121.
46 See supra note 27.
47 See supra note 28.
48 These crimes include the commission or attempted commission of: 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; carjacking; and home invasion robbery.
49 See Fla. Stat. §775.084(3)(b).
50 Id.
51 See Fla. Stat. §775.084(4)(c)2.
52 See Fla. Stat. §775.084(4)(k)3.
53 The constitutionality of “violent career criminal” has been upheld by three district courts of appeal. See Hill v. State, 1999 Fla. App. LEXIS 9903 (Fla. 5th D.C.A. July 23, 1999); Trapp v. State, 736 So. 2d 736 (Fla. 1st D.C.A. 1999); Higgs v. State, 695 So. 2d 872 (Fla. 3d DCA 1997). However, for crimes occurring between October 1, 1995, and May 24, 1997 (the date the legislature re-enacted the law), the Second District Court of Appeal held that “GORT” violated the single subject rule. See Thompson v. State, 708 So. 2d 315 (Fla. 2d D.C.A. 1998). The conflict among the cases has been certified to the Florida Supreme Court for resolution. See Hill, 1999 Fla. App. LEXIS 9903.
54 See supra note 27.
55 See supra note 28.
56 These offenses include convictions as an adult for: aggravated stalking; aggravated child abuse; aggravated abuse of an elderly person or disabled adult; lewd, lascivious or indecent conduct; escape; any felony violation of Ch. 790 involving the use or possession of a firearm; and the catchall “any other felony which involves the use or threat of physical force or violence against any individual as described in Section 776.08” (emphasis added). Attempts to commit the enumerated offenses do not satisfy “GORT”. See Landreth v. State, Fla. L. Weekly D1792 (Fla. 2d D.C.A. July 30, 1999). Additionally, since the statute permits the court to consider only prior adult convictions, it is error for the court to refuse to consider, for example, a prior conviction of a 17-year-old minor defendant who was prosecuted and convicted as an adult. In other words, once a juvenile has been transferred to adult court and sentenced as a adult, his conviction is “as an adult.” See Sneed v. State, 24 Fla. L. Weekly D1721 (Fla. 4th D.C.A. July 21, 1999).
57 See Fla. Stat. §775.084(3)(c).
58 See Fla. Stat. §775.084(3)(c)5, (4)(e). As with habitual offenders and habitual violent offenders, the court’s same reporting requirements apply. See Fla. Stat. §775.084(3)(c)5.
59 See State v. Meyers, 708 So. 2d 661 (Fla. 3d D.C.A. 1998).
60 See supra note 35.
61 See Fla. Stat. §775.084(4)(k)2.
62 See Fla. Stat. §790.235(1999). The law does not apply to a person whose civil rights and firearm authority have been restored. See Fla. Stat. §790.235(3).
63 See, e.g., Morris v. State 722 So. 2d 849 (Fla. 1st D.C.A. 1998) (a dog); Coronado v. State, 654 So. 2d 1267 (Fla. 2d D.C.A. 1995) (a stick).
64 Fla. Stat. §790.235(1) (emphasis added).
65 Id.
66 Id. This law does not apply, however, to a defendant whose civil rights and firearm authority have been restored. See Fla. Stat. §790.235(3).
67 See Fla. Stat. §790.235(2).
68 See supra note 28.
69 See Fla. Stat. §775.084(3)(d)1.
70 Id.
71 Fla. Stat. §775.084(3)(d)2 (emphasis added). When a defendant is mistakenly sentenced as a “GORT” based upon non-qualifying prior convictions, the sentence may be attacked on appeal, even absent objection, as this constitutes a patent sentencing error. See Landreth v. State, 24 Fla. L. Weekly D1792 (Fla. 2d DCA July 30, 1999). See also Gregory v. State, 24 Fla. L. Weekly D256 (Fla. 2d D.C.A. January 20, 1999); Bain v. State, 730 So. 2d 296 (Fla. 2d D.C.A. 1999). On remand, the trial court may again sentence the defendant as a “GORT” if he or she qualifies. See Landreth, 24 Fla. Law Weekly D1792.
72 The Fourth District Court of Appeal has held that the prison releasee reoffender law is not an ex post facto violation in that it is not an additional penalty for the earlier crime, rather a stiffened penalty for the latest crime, which is an aggravated offense by virtue of the repetition. See Plain v. State, 720 So. 2d 585 (Fla. 4th D.C.A. 1998). However, where a defendant’s crime occurred before prison releasee reoffender’s effective date, to apply the act to a defendant’s sentence would be an ex post facto violation. See Arnold v. State, 24 Fla. L. Weekly D1834 (Fla. 4th D.C.A. August 4, 1999). Additionally, several courts have upheld the constitutionality of the prison releasee reoffender statute despite claims that it violates the separation of powers doctrine, the single-subject rule, due process and excessive sentencing. See generally Speed v. State, 732 So. 2d 17 (Fla. 5th D.C.A. 1999); McKnight v. State, 727 So. 2d 314 (Fla. 3d D.C.A. 1999); Woods v. State, 710 So. 2d 1379 (Fla. 1st D.C.A. 1998), approved, 734 So. 2d 401 (Fla. 1999); State v. Cotton, 728 So. 2d 251 (Fla. 2d D.C.A. 1998); Scott v. State, 721 So. 2d 1245 (Fla. 4th D.C.A. 1998); Lawton v. State, 24 Fla. L. Weekly D1940 (Fla. 5th D.C.A. August 20, 1999). However, the Fifth District Court of Appeal recently certified to the Florida Supreme Court the question whether the act violates separation of powers. See Gray v. State, 1999 Fla. App. LEXIS 12409 (Fla. 5th D.C.A. September 17, 1999); Cook v. State, 24 Fla. L. Weekly D1867 (Fla. 5th D.C.A. August 6, 1999) (original opinion published at 24 Fla. L. Weekly D1832).
73 Unlike its brethren, which require that the defendant be personally served with the state’s notice of intent to seek an enhanced penalty, Fla. Stat. §775.082 specifies merely that “the state attorney may seek to have the court sentence the defendant as a prison releasee reoffender.” From this we may infer that the state, at a minimum, must file a pleading noticing the proposed enhancement with the court. However, as with violent career criminals, the prison releasee reoffender statute does not require the court to consider a presentence investigation before imposing sentence.
74 These crimes include the commission or attempted commission of: treason; murder; manslaughter; sexual battery; carjacking; home invasion robbery; robbery; arson; kidnapping; aggravated assault with a deadly weapon; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing or discharging of a destructive device or bomb; any felony that involves the use or threat of physical force or violence against an individual; armed burglary; burglary of an occupied structure or dwelling; and any felony violation of § 790.07 (relating to felonies committed with firearms), §800.04 (lewd, lascivious or indecent assault), §827.03 (aggravated abuse of a child or the disabled) or §827.01(sexual performance by a child). With regard to burglary of a dwelling, whether the dwelling is occupied is of no moment for sentencing purposes as a prison releasee reoffender. See State v. White, 24 Fla. L. Weekly D1435 (Fla. 2d D.C.A. June 18, 1999); Scott v. State, 721 So. 2d 1245, 1246 (Fla. 4th D.C.A. 1998).
75 See Fla. Stat. §775.082(9)(a)3.
76 Id. The court must impose the most severe penalty provided in order to comply with the prison releasee reoffender act. See Florida v. Maples, 24 Fla. L. Weekly D1612 (Fla. 5th D.C.A. July 9, 1999) (error for court to impose a 30-year rather than the statutorily mandatory life sentence for defendant convicted of burglary with an assault). In every case in which an otherwise-qualified offender does not receive the statutory maximum sentence, §775.082(9)(d)2 requires the state to explain the sentencing deviation in writing by filing a report with the Florida Prosecuting Attorneys Association, Inc.
77 See former Fla. Stat. §775.082(9)(d)1.a.
78 See former Fla. Stat. §775.082(9)(d)1.b.
79 See Fla. Stat. §775.082(9)(d)1.
80 The new statute makes clear that only the state may determine whether an offender merits mitigation. Although different district courts of appeal conflict on the issue, compare McKnight v. State, 727 So. 2d 314 (Fla. 3d D.C.A. 1999) (P.R.R. statute leaves no room for anything but indicated sentences and court may not participate in plea negotiating process); Gray v. State, 24 Fla. L. Weekly D1610 (Fla. 5th D.C.A. July 9, 1999) (trial court has no discretion and must impose the minimum mandatory P.R.R. sentence), rehearing granted, 1999 Fla. App. LEXIS 12409 (Fla. 5th D.C.A. September 17, 1999); State v. Cotton, 728 So. 2d 251 (Fla. 2d D.C.A. 1998) (permitting trial court to engage in fact-finding function to recognize victim’s wish not to have defendant sentenced as a P.R.R. over state’s choice not to apply the mitigating exception); Wilson v. State, 24 Fla. L. Weekly D1659 (Fla. 4th D.C.A. July 14, 1999) (trial court has discretion whether to impose P.R.R. sentence); State v. Wise, 24 Fla. L. Weekly D657 (Fla. 4th DCA March 10, 1999) (same), there is no question that the statute precludes the court from determining on its own that a mitigating exception applies.
81 See CS/CS/HB 121.
82 See supra note 27.
83 These crimes include the commission, attempted commission or conspiracy to commit any felony violation of Fla. Stat. §794.011(2)(b), (3), (4) or (5)(1999) or their equivalent.
84 See Fla. Stat. §794.0115(2).
85 See Fla. Stat. §794.0115(3)(a), (b).
86 And when the minimum mandatory is imposed, the bill still requires a memo to be filed, even though, in the Legislature’s own words, “there would be no reason to prepare a memorandum.” See CS/CS/HB 113: Comments: Reports and Memorandums: Fiscal Analysis & Economic Impact Statement, at 16.
87 Id.
88 Id. at 14.
89 Id.
90 The bill perceives that the new law will have the following impact on the “year-end inmate population”: +3 for the current fiscal year; +96 for fiscal year 2000-2001; +373, for fiscal year 2001-2002; +670 for fiscal year 2002-2003; and +1,008 for fiscal year 2003-2004. Id.
91 Id. at 16.
92 Id.
93 Id.
94 Id.
95 See Fla. R. Crim. P. 3.131(b)(3) (1993).
96 See CS/CS/HB 113: §2: Legislative Intent and Policy, at 15.

Judge Robert N. Scola, Jr., was appointed to the 11th Circuit Court in 1995 and serves in the criminal division. He received his bachelors degree from Brown University and graduated cum laude from Boston College Law School. Judge Scola previously served as both a major crimes and deputy chief prosecutor in the 11th Circuit State Attorney’s Office.

H. Scott Fingerhut is a sole practitioner who concentrates in federal and state criminal trial and appellate litigation. He received his bachelors degree from the University of Virginia and graduated from Emory University School of Law. Mr. Fingerhut also served as a prosecutor in the 11th Circuit.

The authors acknowledge Circuit Judge Victoria Platzer and assistant state attorneys Hillah Sara Katz and Alex F. Fox for their kind contributions.

Criminal Law