House Bill 0121

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    Florida House of Representatives - 1999                 HB 121

        By Representative Crist






  1                      A bill to be entitled

  2         An act relating to punishment of felons;

  3         creating the "Three-Strike Violent Felony

  4         Offender Act"; amending s. 775.084, F.S.,

  5         relating to sentencing of habitual felony

  6         offenders, habitual violent felony offenders,

  7         and violent career criminals; redefining the

  8         terms "habitual felony offender" and "habitual

  9         violent felony offender"; revising the

10         alternative time periods within which the

11         habitual felony offender or habitual violent

12         felony offender could have committed the felony

13         to be sentenced; providing that the felony to

14         be sentenced could have been committed either

15         while the defendant was serving a prison

16         sentence or other sentence, or within 5 years

17         of the defendant's release from a prison

18         sentence, probation, community control, or

19         other sentence, under specified circumstances

20         when the sentence was imposed as a result of a

21         prior conviction for a felony, enumerated

22         felony, or other qualified offense; removing

23         certain references to "commitment" and

24         otherwise conforming terminology; revising

25         criteria for a prior conviction or a prior

26         felony for purposes of sentencing as a habitual

27         felony offender, habitual violent offender, or

28         violent career criminal; providing that the

29         placing of a person on probation without an

30         adjudication of guilt shall be treated as a

31         prior conviction regardless of when the

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  1         subsequent offense was committed; removing

  2         certain requirements that, in order to be

  3         counted as a prior felony, the felony must have

  4         resulted in prior conviction sentenced

  5         separately from any other felony conviction

  6         counted as a prior felony; defining "three-time

  7         violent felony offender"; providing a category

  8         of enumerated felony offenses within the

  9         definition, including arson, sexual battery,

10         robbery, kidnapping, aggravated child abuse,

11         aggravated abuse of an elderly person or

12         disabled adult, aggravated assault, murder,

13         manslaughter, aggravated manslaughter of an

14         elderly person or disabled adult, aggravated

15         manslaughter of a child, unlawful throwing,

16         placing, or discharging of a destructive device

17         or bomb, armed burglary, aggravated battery,

18         aggravated stalking, or certain qualified

19         offenses; requiring the court to sentence a

20         defendant as a three-time violent felony

21         offender and impose certain mandatory minimum

22         terms of imprisonment under specified

23         circumstances when the defendant is to be

24         sentenced for committing, or conspiring or

25         attempting to commit, any of the enumerated

26         felony offenses and the defendant has

27         previously been convicted of committing, or

28         conspiring or attempting to commit, any two of

29         the enumerated felony offenses; providing

30         penalties; providing procedures and criteria

31         for court determination if the defendant is a

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  1         three-time violent felony offender; providing

  2         for sentencing as a three-time violent felony

  3         offender; providing mandatory term of

  4         imprisonment for life when the three-time

  5         violent felony offense for which the defendant

  6         is to be sentenced is a felony punishable by

  7         life; providing mandatory prison term of 30

  8         years when the three-time violent felony

  9         offense is a first degree felony; providing

10         mandatory prison term of 15 years when the

11         three-time violent felony offense is a second

12         degree felony; providing mandatory prison term

13         of 5 years when the three-time violent felony

14         offense is a third degree felony; providing for

15         construction; providing that certain sentences

16         imposed before July 1, 1999, are not subject to

17         s. 921.002, F.S., relating to the Criminal

18         Punishment Code; requiring a three-time violent

19         felony offender to serve 100 percent of the

20         court-imposed sentence; providing for

21         ineligibility of a three-time violent felony

22         offender for parole, control release, or early

23         release; amending ss. 784.07 and 784.08, F.S.;

24         providing minimum terms of imprisonment for

25         persons convicted of aggravated assault or

26         aggravated battery of a law enforcement officer

27         or a person 65 years of age or older; amending

28         s. 790.235, F.S., relating to prohibitions

29         against, and penalties for, unlawful possession

30         or other unlawful acts involving firearm,

31         electric weapon or device, or concealed weapon

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  1         by a violent career criminal; conforming cross

  2         references to changes made by the act; creating

  3         s. 794.0115, F.S.; defining "repeat sexual

  4         batterer"; providing within the definition a

  5         category of enumerated felony offenses in

  6         violation of s. 794.011, F.S., relating to

  7         sexual battery; requiring the court to sentence

  8         a defendant as a repeat sexual batterer and

  9         impose a 10-year mandatory minimum term of

10         imprisonment under specified circumstances when

11         the defendant is to be sentenced for

12         committing, or conspiring or attempting to

13         commit, any of the enumerated felony violations

14         of s. 794.011, F.S., and the defendant has

15         previously been convicted of committing, or

16         conspiring or attempting to commit, any one of

17         certain enumerated felony offenses involving

18         sexual battery; providing penalties; providing

19         procedures and criteria for court determination

20         if the defendant is a repeat sexual batterer;

21         providing for sentencing as a repeat sexual

22         batterer; providing for construction; amending

23         s. 794.011, F.S., to conform references to

24         changes made by the act; providing an effective

25         date.

26

27         WHEREAS, in 1996, Florida had the highest violent crime

28  rate of any state in the nation, exceeding the national

29  average by 66 percent, and

30         WHEREAS, although this state possessed the highest

31  state violent crime rate in 1996 in the nation, the

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  1  incarceration rate in this state in 1996 was less than the

  2  incarceration rate in at least eleven other states, all of

  3  which had a lower violent crime rate than the rate in this

  4  state, and

  5         WHEREAS, since 1988, criminals in this state have

  6  committed at least 1.6 million violent crimes against

  7  Floridians and visitors to this state, and

  8         WHEREAS, the per capita violent crime rate has

  9  increased 86 percent in this state in the last 25 years, and

10         WHEREAS, in fiscal year 1996-1997, over 16,000 violent

11  felons in this state were sentenced to probation, community

12  control, and other punishments that did not incarcerate the

13  violent felon for the maximum prison term authorized by law,

14  and

15         WHEREAS, during that same fiscal year, less than 9,900

16  violent felons were sentenced to prison, while during that

17  same period criminals committed approximately 150,000 violent

18  felonies, and

19         WHEREAS, in this state, as of June 30, 1997, more

20  violent felons were on probation, community control, control

21  release, or parole, than were in state prison, and

22         WHEREAS, in 1997, only 15.6 percent of all persons

23  convicted of a felony were sentenced to state prison, the

24  second lowest rate of incarcerated felons since 1984, and

25         WHEREAS, the rate of incarcerated felons has declined

26  seven out of the last eight years, and

27         WHEREAS, since fiscal year 1993-1994, the per capita

28  prison population rate in this state has increased 10 percent

29  and the proportion of violent offenders incarcerated in state

30  prison has increased 5 percent, and

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  1         WHEREAS, since 1995, the Florida Legislature has

  2  enacted stronger criminal punishment laws, including requiring

  3  all prisoners to serve 85 percent of their court-imposed

  4  sentences, and

  5         WHEREAS, since 1994, the violent crime rate in this

  6  state has decreased 9.8 percent, and

  7         WHEREAS, the Legislature previously has found that a

  8  substantial and disproportionate number of serious crimes are

  9  committed in this state by a relatively small number of repeat

10  and violent felony offenders, that priority should be given to

11  the incarceration of career criminals for extended prison

12  terms, and that, in the case of violent career criminals, such

13  extended terms must include substantial minimum terms of

14  imprisonment, and

15         WHEREAS, as of June 30, 1997, only 71 designated

16  "violent career criminals" have been sentenced to mandatory

17  prison terms, out of a prison population of over 65,000 state

18  inmates; and this number does not approach the true number of

19  repeat violent felony offenders in this state, and

20         WHEREAS, to be sentenced as a "violent career

21  criminal," a felon must be convicted of at least four violent,

22  forcible, or serious felonies and must have served a prison

23  term, and

24         WHEREAS, current law does not require the courts to

25  impose mandatory prison terms on violent felons who commit

26  three violent felonies, and these three-time violent felony

27  offenders should be sentenced to mandatory maximum prison

28  terms to protect citizens of this state and visitors, and

29         WHEREAS, studies such as the recent report issued by

30  the National Center for Policy Analysis, "Does punishment

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  1  deter?", indicate that recent crime rates have declined

  2  because of the increasing number of incarcerated felons, and

  3         WHEREAS, since California enacted "three strike"

  4  legislation in 1994 that requires courts to impose mandatory

  5  prison terms on repeat felony offenders convicted of three

  6  serious crimes, that state has experienced significant

  7  reductions in violent crime, and overall crime rates, and

  8         WHEREAS, a study by the RAND Corporation estimates that

  9  the enforcement of this California legislation will reduce

10  serious crime in California committed by adults between 22 and

11  34 percent, and

12         WHEREAS, the enactment and enforcement of legislation

13  in Florida that requires courts to impose mandatory prison

14  terms on three-time violent felony offenders will improve

15  public safety by incapacitating repeat offenders who are most

16  likely to murder, rape, rob, or assault innocent victims in

17  our communities, and

18         WHEREAS, imposing mandatory prison terms on three-time

19  violent felony offenders will prevent such offenders from

20  committing more crimes in our communities, and likely

21  accelerate recent declines in the violent crime rate in this

22  state, NOW, THEREFORE,

23

24  Be It Enacted by the Legislature of the State of Florida:

25

26         Section 1.  This act may be cited as the "Three-Strike

27  Violent Felony Offender Act."

28         Section 2.  Section 775.084, Florida Statutes, 1998

29  Supplement, is amended to read:

30         775.084  Violent career criminals; habitual felony

31  offenders and habitual violent felony offenders; three-time

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  1  violent felony offenders; definitions; procedure; enhanced

  2  penalties or mandatory minimum prison terms.--

  3         (1)  As used in this act:

  4         (a)  "Habitual felony offender" means a defendant for

  5  whom the court may impose an extended term of imprisonment, as

  6  provided in paragraph (4)(a), if it finds that:

  7         1.  The defendant has previously been convicted of any

  8  combination of two or more felonies in this state or other

  9  qualified offenses.

10         2.  The felony for which the defendant is to be

11  sentenced was committed:

12         a.  While the defendant was serving a prison sentence

13  or other sentence commitment imposed as a result of a prior

14  conviction for a felony or other qualified offense; or

15         b.  Within 5 years of the date of the conviction of the

16  defendant's last prior felony or other qualified offense, or

17  within 5 years of the defendant's release from a prison

18  sentence, probation, community control, or other sentence

19  commitment imposed as a result of a prior conviction for a

20  felony or other qualified offense, whichever is later.

21         3.  The felony for which the defendant is to be

22  sentenced, and one of the two prior felony convictions, is not

23  a violation of s. 893.13 relating to the purchase or the

24  possession of a controlled substance.

25         4.  The defendant has not received a pardon for any

26  felony or other qualified offense that is necessary for the

27  operation of this paragraph.

28         5.  A conviction of a felony or other qualified offense

29  necessary to the operation of this paragraph has not been set

30  aside in any postconviction proceeding.

31

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  1         (b)  "Habitual violent felony offender" means a

  2  defendant for whom the court may impose an extended term of

  3  imprisonment, as provided in paragraph (4)(b), if it finds

  4  that:

  5         1.  The defendant has previously been convicted of a

  6  felony or an attempt or conspiracy to commit a felony and one

  7  or more of such convictions was for:

  8         a.  Arson;

  9         b.  Sexual battery;

10         c.  Robbery;

11         d.  Kidnapping;

12         e.  Aggravated child abuse;

13         f.  Aggravated abuse of an elderly person or disabled

14  adult;

15         g.  Aggravated assault;

16         h.  Murder;

17         i.  Manslaughter;

18         j.  Aggravated manslaughter of an elderly person or

19  disabled adult;

20         k.  Aggravated manslaughter of a child;

21         l.  Unlawful throwing, placing, or discharging of a

22  destructive device or bomb;

23         m.  Armed burglary;

24         n.  Aggravated battery; or

25         o.  Aggravated stalking.

26         2.  The felony for which the defendant is to be

27  sentenced was committed:

28         a.  While the defendant was serving a prison sentence

29  or other sentence commitment imposed as a result of a prior

30  conviction for an enumerated felony; or

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  1         b.  Within 5 years of the date of the conviction of the

  2  last prior enumerated felony, or within 5 years of the

  3  defendant's release from a prison sentence, probation,

  4  community control, or other sentence commitment imposed as a

  5  result of a prior conviction for an enumerated felony,

  6  whichever is later.

  7         3.  The defendant has not received a pardon on the

  8  ground of innocence for any crime that is necessary for the

  9  operation of this paragraph.

10         4.  A conviction of a crime necessary to the operation

11  of this paragraph has not been set aside in any postconviction

12  proceeding.

13         (c)  "Three-time violent felony offender" means a

14  defendant for whom the court must impose a mandatory minimum

15  term of imprisonment, as provided in paragraph (4)(c), if it

16  finds that:

17         1.  The defendant has previously been convicted as an

18  adult two or more times of a felony or an attempt or

19  conspiracy to commit a felony and two or more of such

20  convictions were for committing, or attempting or conspiring

21  to commit, any of the following offenses or combination

22  thereof:

23         a.  Arson;

24         b.  Sexual battery;

25         c.  Robbery;

26         d.  Kidnapping;

27         e.  Aggravated child abuse;

28         f.  Aggravated abuse of an elderly person or disabled

29  adult;

30         g.  Aggravated assault;

31         h.  Murder;

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  1         i.  Manslaughter;

  2         j.  Aggravated manslaughter of an elderly person or

  3  disabled adult;

  4         k.  Aggravated manslaughter of a child;

  5         l.  Unlawful throwing, placing, or discharging of a

  6  destructive device or bomb;

  7         m.  Armed burglary;

  8         n.  Aggravated battery;

  9         o.  Aggravated stalking; or

10         p.  A qualified offense if the elements of the

11  qualified offense are substantially similar to the elements of

12  any felony offense enumerated in sub-subparagraphs a.-o., or

13  an attempt or conspiracy to commit any such felony offense.

14         2.  The felony for which the defendant is to be

15  sentenced is one of the felonies enumerated in

16  sub-subparagraphs 1.a.-o. and was committed:

17         a.  While the defendant was serving a prison sentence

18  or other sentence imposed as a result of a prior conviction

19  for any offense enumerated in sub-subparagraphs 1.a.-p.; or

20         b.  Within 5 years after the date of the conviction of

21  the last prior offense enumerated in sub-subparagraphs

22  1.a.-p., or within 5 years after the defendant's release from

23  a prison sentence, probation, community control, or other

24  sentence imposed as a result of a prior conviction for any

25  offense enumerated in sub-subparagraphs 1.a.-p., whichever is

26  later.

27         3.  The defendant has not received a pardon on the

28  ground of innocence for any crime that is necessary for the

29  operation of this paragraph.

30

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  1         4.  A conviction of a crime necessary to the operation

  2  of this paragraph has not been set aside in any postconviction

  3  proceeding.

  4         (d)(c)  "Violent career criminal" means a defendant for

  5  whom the court must impose imprisonment pursuant to paragraph

  6  (4)(d)(c), if it finds that:

  7         1.  The defendant has previously been convicted as an

  8  adult three or more times for an offense in this state or

  9  other qualified offense that is:

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

11         b.  Aggravated stalking, as described in s. 784.048(3)

12  and (4);

13         c.  Aggravated child abuse, as described in s.

14  827.03(2);

15         d.  Aggravated abuse of an elderly person or disabled

16  adult, as described in s. 825.102(2);

17         e.  Lewd, lascivious, or indecent conduct, as described

18  in s. 800.04;

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

20         g.  A felony violation of chapter 790 involving the use

21  or possession of a firearm.

22         2.  The defendant has been incarcerated in a state

23  prison or a federal prison.

24         3.  The primary felony offense for which the defendant

25  is to be sentenced is a felony enumerated in subparagraph 1.

26  and was committed on or after October 1, 1995, and:

27         a.  While the defendant was serving a prison sentence

28  or other sentence commitment imposed as a result of a prior

29  conviction for an enumerated felony; or

30         b.  Within 5 years after the conviction of the last

31  prior enumerated felony, or within 5 years after the

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  1  defendant's release from a prison sentence, probation,

  2  community control, or other sentence commitment imposed as a

  3  result of a prior conviction for an enumerated felony,

  4  whichever is later.

  5         4.  The defendant has not received a pardon for any

  6  felony or other qualified offense that is necessary for the

  7  operation of this paragraph.

  8         5.  A conviction of a felony or other qualified offense

  9  necessary to the operation of this paragraph has not been set

10  aside in any postconviction proceeding.

11         (e)(d)  "Qualified offense" means any offense,

12  substantially similar in elements and penalties to an offense

13  in this state, which is in violation of a law of any other

14  jurisdiction, whether that of another state, the District of

15  Columbia, the United States or any possession or territory

16  thereof, or any foreign jurisdiction, that was punishable

17  under the law of such jurisdiction at the time of its

18  commission by the defendant by death or imprisonment exceeding

19  1 year.

20         (2)  For the purposes of this section, the placing of a

21  person on probation or community control without an

22  adjudication of guilt shall be treated as a prior conviction

23  if the subsequent offense for which the person is to be

24  sentenced was committed during such period of probation or

25  community control.

26         (3)(a)  In a separate proceeding, the court shall

27  determine if the defendant is a habitual felony offender or a

28  habitual violent felony offender. The procedure shall be as

29  follows:

30         1.  The court shall obtain and consider a presentence

31  investigation prior to the imposition of a sentence as a

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  1  habitual felony offender or a habitual violent felony

  2  offender.

  3         2.  Written notice shall be served on the defendant and

  4  the defendant's attorney a sufficient time prior to the entry

  5  of a plea or prior to the imposition of sentence in order to

  6  allow the preparation of a submission on behalf of the

  7  defendant.

  8         3.  Except as provided in subparagraph 1., all evidence

  9  presented shall be presented in open court with full rights of

10  confrontation, cross-examination, and representation by

11  counsel.

12         4.  Each of the findings required as the basis for such

13  sentence shall be found to exist by a preponderance of the

14  evidence and shall be appealable to the extent normally

15  applicable to similar findings.

16         5.  For the purpose of identification of a habitual

17  felony offender or a habitual violent felony offender, the

18  court shall fingerprint the defendant pursuant to s. 921.241.

19         6.  For an offense committed on or after October 1,

20  1995, if the state attorney pursues a habitual felony offender

21  sanction or a habitual violent felony offender sanction

22  against the defendant and the court, in a separate proceeding

23  pursuant to this paragraph, determines that the defendant

24  meets the criteria under subsection (1) for imposing such

25  sanction, the court must sentence the defendant as a habitual

26  felony offender or a habitual violent felony offender, subject

27  to imprisonment pursuant to this section unless the court

28  finds that such sentence is not necessary for the protection

29  of the public.  If the court finds that it is not necessary

30  for the protection of the public to sentence the defendant as

31  a habitual felony offender or a habitual violent felony

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  1  offender, the court shall provide written reasons; a written

  2  transcript of orally stated reasons is permissible, if filed

  3  by the court within 7 days after the date of sentencing. Each

  4  month, the court shall submit to the Office of Economic and

  5  Demographic Research of the Legislature the written reasons or

  6  transcripts in each case in which the court determines not to

  7  sentence a defendant as a habitual felony offender or a

  8  habitual violent felony offender as provided in this

  9  subparagraph.

10         (b)  In a separate proceeding, the court shall

11  determine if the defendant is a three-time violent felony

12  offender. The procedure shall be as follows:

13         1.  The court shall obtain and consider a presentence

14  investigation prior to the imposition of a sentence as a

15  three-time violent felony offender.

16         2.  Written notice shall be served on the defendant and

17  the defendant's attorney a sufficient time prior to the entry

18  of a plea or prior to the imposition of sentence in order to

19  allow the preparation of a submission on behalf of the

20  defendant.

21         3.  Except as provided in subparagraph 1., all evidence

22  presented shall be presented in open court with full rights of

23  confrontation, cross-examination, and representation by

24  counsel.

25         4.  Each of the findings required as the basis for such

26  sentence shall be found to exist by a preponderance of the

27  evidence and shall be appealable to the extent normally

28  applicable to similar findings.

29         5.  For the purpose of identification of a three-time

30  violent felony offender, the court shall fingerprint the

31  defendant pursuant to s. 921.241.

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  1         6.  For an offense committed on or after the effective

  2  date of this act, if the state attorney pursues a three-time

  3  violent felony offender sanction against the defendant and the

  4  court, in a separate proceeding pursuant to this paragraph,

  5  determines that the defendant meets the criteria under

  6  subsection (1) for imposing such sanction, the court must

  7  sentence the defendant as a three-time violent felony

  8  offender, subject to imprisonment pursuant to this section as

  9  provided in paragraph (4)(c).

10         (c)(b)  In a separate proceeding, the court shall

11  determine whether the defendant is a violent career criminal

12  with respect to a primary offense committed on or after

13  October 1, 1995.  The procedure shall be as follows:

14         1.  Written notice shall be served on the defendant and

15  the defendant's attorney a sufficient time prior to the entry

16  of a plea or prior to the imposition of sentence in order to

17  allow the preparation of a submission on behalf of the

18  defendant.

19         2.  All evidence presented shall be presented in open

20  court with full rights of confrontation, cross-examination,

21  and representation by counsel.

22         3.  Each of the findings required as the basis for such

23  sentence shall be found to exist by a preponderance of the

24  evidence and shall be appealable only as provided in paragraph

25  (d)(c).

26         4.  For the purpose of identification, the court shall

27  fingerprint the defendant pursuant to s. 921.241.

28         5.  For an offense committed on or after October 1,

29  1995, if the state attorney pursues a violent career criminal

30  sanction against the defendant and the court, in a separate

31  proceeding pursuant to this paragraph, determines that the

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  1  defendant meets the criteria under subsection (1) for imposing

  2  such sanction, the court must sentence the defendant as a

  3  violent career criminal, subject to imprisonment pursuant to

  4  this section unless the court finds that such sentence is not

  5  necessary for the protection of the public.  If the court

  6  finds that it is not necessary for the protection of the

  7  public to sentence the defendant as a violent career criminal,

  8  the court shall provide written reasons; a written transcript

  9  of orally stated reasons is permissible, if filed by the court

10  within 7 days after the date of sentencing. Each month, the

11  court shall submit to the Office of Economic and Demographic

12  Research of the Legislature the written reasons or transcripts

13  in each case in which the court determines not to sentence a

14  defendant as a violent career criminal as provided in this

15  subparagraph.

16         (d)(c)1.  A person sentenced under paragraph (4)(d)(c)

17  as a violent career criminal has the right of direct appeal,

18  and either the state or the defendant may petition the trial

19  court to vacate an illegal sentence at any time. However, the

20  determination of the trial court to impose or not to impose a

21  violent career criminal sentence is presumed appropriate and

22  no petition or motion for collateral or other postconviction

23  relief may be considered based on an allegation either by the

24  state or the defendant that such sentence is inappropriate,

25  inadequate, or excessive.

26         2.  It is the intent of the Legislature that, with

27  respect to both direct appeal and collateral review of violent

28  career criminal sentences, all claims of error or illegality

29  be raised at the first opportunity and that no claim should be

30  filed more than 2 years after the judgment and sentence became

31  final, unless it is established that the basis for the claim

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  1  could not have been ascertained at the time by the exercise of

  2  due diligence. Technical violations and mistakes at trials and

  3  sentencing proceedings involving violent career criminals that

  4  do not affect due process or fundamental fairness are not

  5  appealable by either the state or the defendant.

  6         3.  It is the intent of the Legislature that no funds,

  7  resources, or employees of the state or its political

  8  subdivisions be used, directly or indirectly, in appellate or

  9  collateral proceedings based on violent career criminal

10  sentencing, except when such use is constitutionally or

11  statutorily mandated.

12         (4)(a)  The court, in conformity with the procedure

13  established in paragraph (3)(a), may sentence the habitual

14  felony offender as follows:

15         1.  In the case of a life felony or a felony of the

16  first degree, for life.

17         2.  In the case of a felony of the second degree, for a

18  term of years not exceeding 30.

19         3.  In the case of a felony of the third degree, for a

20  term of years not exceeding 10.

21         (b)  The court, in conformity with the procedure

22  established in paragraph (3)(a), may sentence the habitual

23  violent felony offender as follows:

24         1.  In the case of a life felony or a felony of the

25  first degree, for life, and such offender shall not be

26  eligible for release for 15 years.

27         2.  In the case of a felony of the second degree, for a

28  term of years not exceeding 30, and such offender shall not be

29  eligible for release for 10 years.

30

31

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  1         3.  In the case of a felony of the third degree, for a

  2  term of years not exceeding 10, and such offender shall not be

  3  eligible for release for 5 years.

  4         (c)1.  The court, in conformity with the procedure

  5  established in paragraph (3)(c), must sentence the three-time

  6  violent felony offender to a mandatory minimum term of

  7  imprisonment, as follows:

  8         a.  In the case of a felony punishable by life, to a

  9  term of imprisonment for life;

10         b.  In the case of a felony of the first degree, to a

11  term of imprisonment of 30 years;

12         c.  In the case of a felony of the second degree, to a

13  term of imprisonment of 15 years; or

14         d.  In the case of a felony of the third degree, to a

15  term of imprisonment of 5 years.

16         2.  Nothing in this subsection shall prevent a court

17  from imposing a greater sentence of incarceration as

18  authorized by law.

19         (d)(c)  The court, in conformity with the procedure

20  established in paragraph (3)(c)(b), shall sentence the violent

21  career criminal as follows:

22         1.  In the case of a life felony or a felony of the

23  first degree, for life.

24         2.  In the case of a felony of the second degree, for a

25  term of years not exceeding 40, with a mandatory minimum term

26  of 30 years' imprisonment.

27         3.  In the case of a felony of the third degree, for a

28  term of years not exceeding 15, with a mandatory minimum term

29  of 10 years' imprisonment.

30         (e)(d)  If the court finds, pursuant to paragraph

31  (3)(a) or paragraph (3)(c)(b), that it is not necessary for

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  1  the protection of the public to sentence a defendant who meets

  2  the criteria for sentencing as a habitual felony offender, a

  3  habitual violent felony offender, or a violent career

  4  criminal, with respect to an offense committed on or after

  5  October 1, 1995, sentence shall be imposed without regard to

  6  this section.

  7         (f)(e)  At any time when it appears to the court that

  8  the defendant is eligible for sentencing under this section,

  9  the court shall make that determination as provided in

10  paragraph (3)(a) or paragraph (3)(c)(b).

11         (g)(f)  A sentence imposed under this section shall not

12  be increased after such imposition.

13         (h)(g)  A sentence imposed under this section for an

14  offense committed before July 1, 1999, is not subject to s.

15  921.002.

16         (i)(h)  The provisions of this section do not apply to

17  capital felonies, and a sentence authorized under this section

18  does not preclude the imposition of the death penalty for a

19  capital felony.

20         (j)(i)  The provisions of s. 947.1405 shall apply to

21  persons sentenced as habitual felony offenders and persons

22  sentenced as habitual violent felony offenders.

23         (k)(j)1.  A defendant sentenced under this section as a

24  habitual felony offender, a habitual violent felony offender,

25  or a violent career criminal is eligible for gain-time granted

26  by the Department of Corrections as provided in s.

27  944.275(4)(b).

28         2.  For an offense committed on or after October 1,

29  1995, a defendant sentenced under this section as a violent

30  career criminal is not eligible for any form of discretionary

31

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  1  early release, other than pardon or executive clemency, or

  2  conditional medical release granted pursuant to s. 947.149.

  3         3.  For an offense committed on or after July 1, 1999,

  4  a defendant sentenced under this section as a three-time

  5  violent felony offender shall be released only by expiration

  6  of sentence and shall not be eligible for parole, control

  7  release, or any form of early release. Any person sentenced as

  8  a three-time violent felony offender must serve 100 percent of

  9  the court-imposed sentence.

10         (5)  In order to be counted as a prior felony for

11  purposes of sentencing under this section, the felony must

12  have resulted in a conviction sentenced separately prior to

13  the current offense and sentenced separately from any other

14  felony conviction that is to be counted as a prior felony.

15         (5)(6)  The purpose of this section is to provide

16  uniform punishment for those crimes made punishable under this

17  section, and to this end, a reference to this section

18  constitutes a general reference under the doctrine of

19  incorporation by reference.

20         Section 3.  Paragraphs (c) and (d) of subsection (2) of

21  section 784.07, Florida Statutes, 1998 Supplement, are amended

22  to read:

23         784.07  Assault or battery of law enforcement officers,

24  firefighters, emergency medical care providers, public transit

25  employees or agents, or other specified officers;

26  reclassification of offenses; minimum sentences.--

27         (2)  Whenever any person is charged with knowingly

28  committing an assault or battery upon a law enforcement

29  officer, a firefighter, an emergency medical care provider, a

30  traffic accident investigation officer as described in s.

31  316.640, a traffic infraction enforcement officer as described

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  1  in s. 318.141, a parking enforcement specialist as defined in

  2  s. 316.640, or a security officer employed by the board of

  3  trustees of a community college, while the officer,

  4  firefighter, emergency medical care provider, intake officer,

  5  traffic accident investigation officer, traffic infraction

  6  enforcement officer, parking enforcement specialist, public

  7  transit employee or agent, or security officer is engaged in

  8  the lawful performance of his or her duties, the offense for

  9  which the person is charged shall be reclassified as follows:

10         (c)  In the case of aggravated assault, from a felony

11  of the third degree to a felony of the second degree.

12  Notwithstanding any other provision of law, any person

13  convicted of aggravated assault upon a law enforcement officer

14  shall be sentenced to a minimum term of imprisonment of 3

15  years.

16         (d)  In the case of aggravated battery, from a felony

17  of the second degree to a felony of the first degree.

18  Notwithstanding any other provision of law, any person

19  convicted of aggravated battery of a law enforcement officer

20  shall be sentenced to a minimum term of imprisonment of 5

21  years.

22         Section 4.  Subsection (1) of section 784.08, Florida

23  Statutes, is amended to read:

24         784.08  Assault or battery on persons 65 years of age

25  or older; reclassification of offenses; minimum sentence.--

26         (1)  A person who is convicted of an aggravated assault

27  or aggravated battery upon a person 65 years of age or older

28  shall be sentenced to a minimum term of imprisonment of 3

29  years pursuant to the Criminal Punishment Code and fined not

30  more than $10,000 and shall also be ordered by the sentencing

31  judge to make restitution to the victim of such offense and to

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  1  perform up to 500 hours of community service work.

  2  Restitution and community service work shall be in addition to

  3  any fine or sentence which may be imposed and shall not be in

  4  lieu thereof.

  5         Section 5.  Section 790.235, Florida Statutes, is

  6  amended to read:

  7         790.235  Possession of firearm by violent career

  8  criminal unlawful; penalty.--

  9         (1)  Any person who meets the violent career criminal

10  criteria under s. 775.084(1)(d)(c), regardless of whether such

11  person is or has previously been sentenced as a violent career

12  criminal, who owns or has in his or her care, custody,

13  possession, or control any firearm or electric weapon or

14  device, or carries a concealed weapon, including a tear gas

15  gun or chemical weapon or device, commits a felony of the

16  first degree, punishable as provided in s. 775.082, s.

17  775.083, or s. 775.084.  A person convicted of a violation of

18  this section shall be sentenced to a mandatory minimum of 15

19  years' imprisonment; however, if the person would be sentenced

20  to a longer term of imprisonment under s. 775.084(4)(d)(c),

21  the person must be sentenced under that provision.  A person

22  convicted of a violation of this section is not eligible for

23  any form of discretionary early release, other than pardon,

24  executive clemency, or conditional medical release under s.

25  947.149.

26         (2)  For purposes of this section, the previous felony

27  convictions necessary to meet the violent career criminal

28  criteria under s. 775.084(1)(d)(c) may be convictions for

29  felonies committed as an adult or adjudications of delinquency

30  for felonies committed as a juvenile.  In order to be counted

31  as a prior felony for purposes of this section, the felony

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  1  must have resulted in a conviction sentenced separately, or an

  2  adjudication of delinquency entered separately, prior to the

  3  current offense, and sentenced or adjudicated separately from

  4  any other felony that is to be counted as a prior felony.

  5         (3)  This section shall not apply to a person whose

  6  civil rights and firearm authority have been restored.

  7         Section 6.  Section 794.0115, Florida Statutes, is

  8  created to read:

  9         794.0115  Repeat sexual batterers; definition;

10  procedure; enhanced penalties.--

11         (1)  As used in this act, "repeat sexual batterer"

12  means a defendant for whom the court must impose a mandatory

13  minimum term of imprisonment, as provided in subsection (3),

14  if it finds that:

15         (a)  The defendant has previously been convicted of a

16  felony or an attempt or conspiracy to commit a felony and one

17  or more of such convictions was for:

18         1.  Any felony offense in violation of s.

19  794.011(2)(b), (3), (4), or (5), or an attempt or conspiracy

20  to commit the felony offense.

21         2.  A qualified offense as defined in s. 775.084(1)(e),

22  if the elements of the qualified offense are substantially

23  similar to the elements of a felony offense in violation of s.

24  794.011(2)(b), (3), (4), or (5), or an attempt or conspiracy

25  to commit the felony offense.

26         (b)  The felony for which the defendant is to be

27  sentenced is one of the felonies enumerated in subparagraph

28  (a)1. or 2. and was committed:

29         1.  While the defendant was serving a prison sentence

30  or other sentence imposed as a result of a prior conviction

31  for any offense enumerated in subparagraph (a)1. or 2.; or

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  1         2.  Within 10 years after the date of the conviction of

  2  the last prior offense enumerated in subparagraph (a)1. or 2.,

  3  or within 10 years after the defendant's release from a prison

  4  sentence, probation, community control, or other sentence

  5  imposed as a result of a prior conviction for any offense

  6  enumerated in subparagraph (a)1. or 2., whichever is later.

  7         (c)  The defendant has not received a pardon on the

  8  ground of innocence for any crime that is necessary for the

  9  operation of this subsection.

10         (d)  A conviction of a crime necessary to the operation

11  of this subsection has not been set aside in any

12  postconviction proceeding.

13         (2)  In a separate proceeding, the court shall

14  determine if the defendant is a repeat sexual batterer. The

15  procedure shall be as follows:

16         (a)  The court shall obtain and consider a presentence

17  investigation prior to the imposition of a sentence as a

18  repeat sexual batterer.

19         (b)  Written notice shall be served on the defendant

20  and the defendant's attorney a sufficient time prior to the

21  entry of a plea or prior to the imposition of sentence in

22  order to allow the preparation of a submission on behalf of

23  the defendant.

24         (c)  Except as provided in paragraph (a), all evidence

25  presented shall be presented in open court with full rights of

26  confrontation, cross-examination, and representation by

27  counsel.

28         (d)  Each of the findings required as the basis for

29  such sentence shall be found to exist by a preponderance of

30  the evidence and shall be appealable to the extent normally

31  applicable to similar findings.

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  1         (e)  For the purpose of identification of a repeat

  2  sexual batterer, the court shall fingerprint the defendant

  3  pursuant to s. 921.241.

  4         (f)  For an offense committed on or after the effective

  5  date of this act, if the state attorney pursues a repeat

  6  sexual batterer sanction against the defendant and the court,

  7  in a separate proceeding pursuant to this subsection,

  8  determines that the defendant meets the criteria under

  9  subsection (1) for imposing such sanction, the court must

10  sentence the defendant as a repeat sexual batterer, subject to

11  imprisonment pursuant to this section as provided in

12  subsection (3).

13         (3)(a)  The court, in conformity with the procedure

14  established in subsection (2), must sentence the repeat sexual

15  batterer to a mandatory minimum term of 10 years'

16  imprisonment.

17         (b)  Nothing in this subsection shall prevent a court

18  from imposing a greater sentence of incarceration as

19  authorized by law.

20         Section 7.  Section 794.011, Florida Statutes, is

21  amended to read:

22         794.011  Sexual battery.--

23         (1)  As used in this chapter:

24         (a)  "Consent" means intelligent, knowing, and

25  voluntary consent and does not include coerced submission.

26  "Consent" shall not be deemed or construed to mean the failure

27  by the alleged victim to offer physical resistance to the

28  offender.

29         (b)  "Mentally defective" means a mental disease or

30  defect which renders a person temporarily or permanently

31  incapable of appraising the nature of his or her conduct.

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  1         (c)  "Mentally incapacitated" means temporarily

  2  incapable of appraising or controlling a person's own conduct

  3  due to the influence of a narcotic, anesthetic, or

  4  intoxicating substance administered without his or her consent

  5  or due to any other act committed upon that person without his

  6  or her consent.

  7         (d)  "Offender" means a person accused of a sexual

  8  offense in violation of a provision of this chapter.

  9         (e)  "Physically helpless" means unconscious, asleep,

10  or for any other reason physically unable to communicate

11  unwillingness to an act.

12         (f)  "Retaliation" includes, but is not limited to,

13  threats of future physical punishment, kidnapping, false

14  imprisonment or forcible confinement, or extortion.

15         (g)  "Serious personal injury" means great bodily harm

16  or pain, permanent disability, or permanent disfigurement.

17         (h)  "Sexual battery" means oral, anal, or vaginal

18  penetration by, or union with, the sexual organ of another or

19  the anal or vaginal penetration of another by any other

20  object; however, sexual battery does not include an act done

21  for a bona fide medical purpose.

22         (i)  "Victim" means a person who has been the object of

23  a sexual offense.

24         (j)  "Physically incapacitated" means bodily impaired

25  or handicapped and substantially limited in ability to resist

26  or flee.

27         (2)(a)  A person 18 years of age or older who commits

28  sexual battery upon, or in an attempt to commit sexual battery

29  injures the sexual organs of, a person less than 12 years of

30  age commits a capital felony, punishable as provided in ss.

31  775.082 and 921.141.

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  1         (b)  A person less than 18 years of age who commits

  2  sexual battery upon, or in an attempt to commit sexual battery

  3  injures the sexual organs of, a person less than 12 years of

  4  age commits a life felony, punishable as provided in s.

  5  775.082, s. 775.083, or s. 775.084, or s. 794.0115.

  6         (3)  A person who commits sexual battery upon a person

  7  12 years of age or older, without that person's consent, and

  8  in the process thereof uses or threatens to use a deadly

  9  weapon or uses actual physical force likely to cause serious

10  personal injury commits a life felony, punishable as provided

11  in s. 775.082, s. 775.083, or s. 775.084, or s. 794.0115.

12         (4)  A person who commits sexual battery upon a person

13  12 years of age or older without that person's consent, under

14  any of the following circumstances, commits a felony of the

15  first degree, punishable as provided in s. 775.082, s.

16  775.083, or s. 775.084, or s. 794.0115:

17         (a)  When the victim is physically helpless to resist.

18         (b)  When the offender coerces the victim to submit by

19  threatening to use force or violence likely to cause serious

20  personal injury on the victim, and the victim reasonably

21  believes that the offender has the present ability to execute

22  the threat.

23         (c)  When the offender coerces the victim to submit by

24  threatening to retaliate against the victim, or any other

25  person, and the victim reasonably believes that the offender

26  has the ability to execute the threat in the future.

27         (d)  When the offender, without the prior knowledge or

28  consent of the victim, administers or has knowledge of someone

29  else administering to the victim any narcotic, anesthetic, or

30  other intoxicating substance which mentally or physically

31  incapacitates the victim.

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  1         (e)  When the victim is mentally defective and the

  2  offender has reason to believe this or has actual knowledge of

  3  this fact.

  4         (f)  When the victim is physically incapacitated.

  5         (g)  When the offender is a law enforcement officer,

  6  correctional officer, or correctional probation officer as

  7  defined by s. 943.10(1), (2), (3), (6), (7), (8), or (9), who

  8  is certified under the provisions of s. 943.1395 or is an

  9  elected official exempt from such certification by virtue of

10  s. 943.253, or any other person in a position of control or

11  authority in a probation, community control, controlled

12  release, detention, custodial, or similar setting, and such

13  officer, official, or person is acting in such a manner as to

14  lead the victim to reasonably believe that the offender is in

15  a position of control or authority as an agent or employee of

16  government.

17         (5)  A person who commits sexual battery upon a person

18  12 years of age or older, without that person's consent, and

19  in the process thereof does not use physical force and

20  violence likely to cause serious personal injury commits a

21  felony of the second degree, punishable as provided in s.

22  775.082, s. 775.083, or s. 775.084, or s. 794.0115.

23         (6)  The offense described in subsection (5) is

24  included in any sexual battery offense charged under

25  subsection (3) or subsection (4).

26         (7)  A person who is convicted of committing a sexual

27  battery on or after October 1, 1992, is not eligible for basic

28  gain-time under s. 944.275.  This subsection may be cited as

29  the "Junny Rios-Martinez, Jr. Act of 1992."

30         (8)  Without regard to the willingness or consent of

31  the victim, which is not a defense to prosecution under this

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  1  subsection, a person who is in a position of familial or

  2  custodial authority to a person less than 18 years of age and

  3  who:

  4         (a)  Solicits that person to engage in any act which

  5  would constitute sexual battery under paragraph (1)(h) commits

  6  a felony of the third degree, punishable as provided in s.

  7  775.082, s. 775.083, or s. 775.084.

  8         (b)  Engages in any act with that person while the

  9  person is 12 years of age or older but less than 18 years of

10  age which constitutes sexual battery under paragraph (1)(h)

11  commits a felony of the first degree, punishable as provided

12  in s. 775.082, s. 775.083, or s. 775.084.

13         (c)  Engages in any act with that person while the

14  person is less than 12 years of age which constitutes sexual

15  battery under paragraph (1)(h), or in an attempt to commit

16  sexual battery injures the sexual organs of such person

17  commits a capital or life felony, punishable pursuant to

18  subsection (2).

19         (9)  For prosecution under paragraph (4)(g),

20  acquiescence to a person reasonably believed by the victim to

21  be in a position of authority or control does not constitute

22  consent, and it is not a defense that the perpetrator was not

23  actually in a position of control or authority if the

24  circumstances were such as to lead the victim to reasonably

25  believe that the person was in such a position.

26         (10)  Any person who falsely accuses any person listed

27  in paragraph (4)(g) or other person in a position of control

28  or authority as an agent or employee of government of

29  violating paragraph (4)(g) is guilty of a felony of the third

30  degree, punishable as provided in s. 775.082, s. 775.083, or

31  s. 775.084.

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  1         Section 8.  This act shall take effect July 1, 1999.

  2

  3            *****************************************

  4                          HOUSE SUMMARY

  5
      Creates the "Three-Strike Violent Felony Offender Act."
  6

  7    Redefines the terms "habitual felony offender" and
      "habitual violent felony offender."  Revises the
  8    alternative time periods within which the habitual felony
      offender or habitual violent felony offender could have
  9    committed the felony to be sentenced. Revises criteria
      for a prior conviction or a prior felony for purposes of
10    sentencing as a habitual felony offender, habitual
      violent offender, or violent career criminal. Provides
11    that the placing of a person on probation without an
      adjudication of guilt shall be treated as a prior
12    conviction regardless of when the subsequent offense was
      committed. Removes certain requirements that, in order to
13    be counted as a prior felony, the felony must have
      resulted in prior conviction sentenced separately from
14    any other felony conviction counted as a prior felony.
      Specifies minimum terms of imprisonment for convictions
15    of aggravated assault or aggravated battery of a law
      enforcement officer and for aggravated assault or battery
16    on a person 65 years of age or older.

17
      Defines "three-time violent felony offender" and "repeat
18    sexual batterer."  Requires the court to sentence a
      defendant as a three-time violent felony offender or
19    repeat sexual batterer and impose certain mandatory
      minimum terms of imprisonment under specified
20    circumstances. Provides procedures and penalties.
      Provides for ineligibility of a three-time violent felony
21    offender for parole, control release, or early release.
      Conforms references. See bill for details.
22

23

24

25

26

27

28

29

30

31

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