House Bill hb1397
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Florida House of Representatives - 2002 HB 1397
By the Council for Healthy Communities and Representatives
Fasano and Kottkamp
1 A bill to be entitled
2 An act relating to sentencing; reenacting
3 sections 1, 3, 6, and 12 of chapter 99-188,
4 Laws of Florida; creating the "Three-Strike
5 Violent Felony Offender Act"; amending s.
6 775.084, F.S., relating to sentencing of
7 habitual felony offenders, habitual violent
8 felony offenders, and violent career criminals;
9 redefining the terms "habitual felony
10 offender," "habitual violent felony offender,"
11 and "violent career criminal"; revising the
12 alternative time periods within which the
13 habitual felony offender, habitual violent
14 felony offender, or violent career criminal
15 could have committed the felony for which the
16 sentence is to be imposed; providing that the
17 felony for which the sentence is to be imposed
18 could have been committed either while the
19 defendant was serving a prison sentence or
20 other sentence or supervision, or within 5
21 years after the defendant's release from a
22 prison sentence, probation, community control,
23 or supervision or other sentence, under
24 specified circumstances when the sentence was
25 imposed as a result of a prior conviction for a
26 felony, enumerated felony, or other qualified
27 offense; removing certain references to
28 "commitment" and otherwise conforming
29 terminology; providing that the placing of a
30 person on probation without an adjudication of
31 guilt shall be treated as a prior conviction
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1 regardless of when the subsequent offense was
2 committed; defining "three-time violent felony
3 offender"; providing a category of enumerated
4 felony offenses within the definition;
5 requiring the court to sentence a defendant as
6 a three-time violent felony offender and impose
7 certain mandatory minimum terms of imprisonment
8 under specified circumstances when the
9 defendant is to be sentenced for committing or
10 attempting to commit any of the enumerated
11 felony offenses and the defendant has
12 previously been convicted of committing or
13 attempting to commit any two of the enumerated
14 felony offenses; providing penalties; providing
15 procedures and criteria for court determination
16 if the defendant is a three-time violent felony
17 offender; providing for sentencing as a
18 three-time violent felony offender; providing
19 mandatory term of imprisonment for life when
20 the three-time violent felony offense for which
21 the defendant is to be sentenced is a felony
22 punishable by life; providing mandatory prison
23 term of 30 years when the three-time violent
24 felony offense is a first degree felony;
25 providing mandatory prison term of 15 years
26 when the three-time violent felony offense is a
27 second degree felony; providing mandatory
28 prison term of 5 years when the three-time
29 violent felony offense is a third degree
30 felony; providing for construction; providing
31 for ineligibility of a three-time violent
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1 felony offender for parole, control release, or
2 early release; amending s. 790.235, F.S.,
3 relating to prohibitions against, and penalties
4 for, unlawful possession or other unlawful acts
5 involving firearm, electric weapon or device,
6 or concealed weapon by a violent career
7 criminal; conforming cross references to
8 changes made by the act; requiring the Governor
9 to place public service announcements
10 explaining the provisions of this act;
11 providing for retroactive application of the
12 reenacted provisions; further amending s.
13 775.084, F.S., to incorporate amendments
14 contained in chapter 99-201, Laws of Florida;
15 defining "violent career criminal"; providing
16 effective dates.
17
18 WHEREAS, in 1999 the Legislature adopted chapter
19 99-188, Laws of Florida, with the primary motivation of
20 reducing crime in this state and to protect the public from
21 violent criminals through the adoption of enhanced and
22 mandatory sentences for violent and repeat offenders, for
23 persons involved in drug-related crimes, committing aggravated
24 battery or aggravated assault on law enforcement personnel or
25 the elderly, and for persons committing criminal acts while in
26 prison or while having escaped from prison, and
27 WHEREAS, a three-judge panel of the District Court of
28 Appeal of Florida, Second District, has issued a nonfinal
29 opinion declaring chapter 99-188, Laws of Florida,
30 unconstitutional as a violation of the requirement in Section
31 6, Article III of the Florida Constitution that "every law
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1 shall embrace but one subject and matter properly connected
2 therewith. . .", finding that the addition of two minor
3 provisions relating to burglary of railroad vehicles and the
4 provision of sentencing documents relative to aliens to the
5 Immigration and Naturalization Service were not matters
6 properly connected with the subject of the 1999 act, which was
7 "sentencing," and
8 WHEREAS, the nonfinal ruling on this matter was issued
9 while the Legislature was in session, and
10 WHEREAS, the Attorney General, on behalf of the people
11 of the State of Florida, has indicated a determination to seek
12 rehearing, en banc, of this matter, and
13 WHEREAS, a final opinion by the District Court of
14 Appeal of Florida, Second District, declaring chapter 99-188,
15 Laws of Florida, to have been in violation of Section 6,
16 Article III of the Florida Constitution would be subject to
17 appeal by the state to the Florida Supreme Court, and
18 WHEREAS, in its nonfinal ruling, the panel of the
19 District Court of Appeal of Florida, Second District, has
20 certified its decision as passing on two questions of great
21 public importance with respect to chapter 99-188, Laws of
22 Florida, further invoking the jurisdiction of the Florida
23 Supreme Court, and
24 WHEREAS, the final resolution as to the
25 constitutionality of chapter 99-188, Laws of Florida, remains
26 uncertain, and is unlikely to be finally determined by the
27 judicial system, while the 2002 legislative session is in
28 progress, and
29 WHEREAS, the legislative action to correct the effect
30 of this ruling forthwith is essential to public safety and
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1 cannot await a final resolution by the District Court of
2 Appeal and the Florida Supreme Court, and
3 WHEREAS, the Legislature, only out of an abundance of
4 caution due to tentative posture of the law while it awaits
5 final resolution by the District Court of Appeal and the
6 Florida Supreme Court, has prepared five separate bills to
7 reenact selected provisions of chapter 99-188, Laws of
8 Florida, all of which relate to the single general issue of
9 sentencing in criminal cases, and
10 WHEREAS, the Legislature does not intend the division
11 of these bills relating to sentencing as any kind of
12 legislative acknowledgement that said bills could not or
13 should not be joined together in a single bill in full
14 compliance with Section 6, Article III of the Florida
15 Constitution, NOW THEREFORE,
16
17 Be It Enacted by the Legislature of the State of Florida:
18
19 Section 1. Sections 1, 3, 6, and 12 of chapter 99-188,
20 Laws of Florida, are reenacted to read:
21 Section 1. This act may be cited as the "Three-Strike
22 Violent Felony Offender Act."
23 Section 3. Section 775.084, Florida Statutes, 1998
24 Supplement, is amended to read:
25 775.084 Violent career criminals; habitual felony
26 offenders and habitual violent felony offenders; three-time
27 violent felony offenders; definitions; procedure; enhanced
28 penalties or mandatory minimum prison terms.--
29 (1) As used in this act:
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1 (a) "Habitual felony offender" means a defendant for
2 whom the court may impose an extended term of imprisonment, as
3 provided in paragraph (4)(a), if it finds that:
4 1. The defendant has previously been convicted of any
5 combination of two or more felonies in this state or other
6 qualified offenses.
7 2. The felony for which the defendant is to be
8 sentenced was committed:
9 a. While the defendant was serving a prison sentence
10 or other sentence, or court-ordered or lawfully imposed
11 supervision that is commitment imposed as a result of a prior
12 conviction for a felony or other qualified offense; or
13 b. Within 5 years of the date of the conviction of the
14 defendant's last prior felony or other qualified offense, or
15 within 5 years of the defendant's release from a prison
16 sentence, probation, community control, control release,
17 conditional release, parole or court-ordered or lawfully
18 imposed supervision or other sentence that is commitment
19 imposed as a result of a prior conviction for a felony or
20 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.
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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 with a deadly weapon;
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, or court-ordered or lawfully imposed
30 supervision that is commitment imposed as a result of a prior
31 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, control release, conditional release,
5 parole, or court-ordered or lawfully imposed supervision or
6 other sentence that is commitment imposed as a result of a
7 prior conviction for an enumerated felony, whichever is later.
8 3. The defendant has not received a pardon on the
9 ground of innocence for any crime that is necessary for the
10 operation of this paragraph.
11 4. A conviction of a crime necessary to the operation
12 of this paragraph has not been set aside in any postconviction
13 proceeding.
14 (c) "Three-time violent felony offender" means a
15 defendant for whom the court must impose a mandatory minimum
16 term of imprisonment, as provided in paragraph (4)(c), if it
17 finds that:
18 1. The defendant has previously been convicted as an
19 adult two or more times of a felony, or an attempt to commit a
20 felony, and two or more of such convictions were for
21 committing, or attempting to commit, any of the following
22 offenses or combination 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 with a deadly weapon;
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;
10 p. Home invasion/robbery;
11 q. Carjacking; or
12 r. An offense which is in violation of a law of any
13 other jurisdiction if the elements of the offense are
14 substantially similar to the elements of any felony offense
15 enumerated in sub-subparagraphs a.-q., or an attempt to commit
16 any such felony offense.
17 2. The felony for which the defendant is to be
18 sentenced is one of the felonies enumerated in
19 sub-subparagraphs 1.a.-q. and was committed:
20 a. While the defendant was serving a prison sentence
21 or other sentence imposed as a result of a prior conviction
22 for any offense enumerated in sub-subparagraphs 1.a.-r.; or
23 b. Within 5 years after the date of the conviction of
24 the last prior offense enumerated in sub-subparagraphs
25 1.a.-r., or within 5 years after the defendant's release from
26 a prison sentence, probation, community control, or other
27 sentence imposed as a result of a prior conviction for any
28 offense enumerated in sub-subparagraphs 1.a.-r., whichever is
29 later.
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1 3. The defendant has not received a pardon on the
2 ground of innocence for any crime that is necessary for the
3 operation of this paragraph.
4 4. A conviction of a crime necessary to the operation
5 of this paragraph has not been set aside in any postconviction
6 proceeding.
7 (d)(c) "Violent career criminal" means a defendant for
8 whom the court must impose imprisonment pursuant to paragraph
9 (4)(d)(c), if it finds that:
10 1. The defendant has previously been convicted as an
11 adult three or more times for an offense in this state or
12 other qualified offense that is:
13 a. Any forcible felony, as described in s. 776.08;
14 b. Aggravated stalking, as described in s. 784.048(3)
15 and (4);
16 c. Aggravated child abuse, as described in s.
17 827.03(2);
18 d. Aggravated abuse of an elderly person or disabled
19 adult, as described in s. 825.102(2);
20 e. Lewd, lascivious, or indecent conduct, as described
21 in s. 800.04;
22 f. Escape, as described in s. 944.40; or
23 g. A felony violation of chapter 790 involving the use
24 or possession of a firearm.
25 2. The defendant has been incarcerated in a state
26 prison or a federal prison.
27 3. The primary felony offense for which the defendant
28 is to be sentenced is a felony enumerated in subparagraph 1.
29 and was committed on or after October 1, 1995, and:
30 a. While the defendant was serving a prison sentence
31 or other sentence, or court-ordered or lawfully imposed
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1 supervision that is commitment imposed as a result of a prior
2 conviction for an enumerated felony; or
3 b. Within 5 years after the conviction of the last
4 prior enumerated felony, or within 5 years after the
5 defendant's release from a prison sentence, probation,
6 community control, control release, conditional release,
7 parole, or court-ordered or lawfully imposed supervision or
8 other sentence that is commitment imposed as a result of a
9 prior conviction for an enumerated felony, whichever is later.
10 4. The defendant has not received a pardon for any
11 felony or other qualified offense that is necessary for the
12 operation of this paragraph.
13 5. A conviction of a felony or other qualified offense
14 necessary to the operation of this paragraph has not been set
15 aside in any postconviction proceeding.
16 (e)(d) "Qualified offense" means any offense,
17 substantially similar in elements and penalties to an offense
18 in this state, which is in violation of a law of any other
19 jurisdiction, whether that of another state, the District of
20 Columbia, the United States or any possession or territory
21 thereof, or any foreign jurisdiction, that was punishable
22 under the law of such jurisdiction at the time of its
23 commission by the defendant by death or imprisonment exceeding
24 1 year.
25 (2) For the purposes of this section, the placing of a
26 person on probation or community control without an
27 adjudication of guilt shall be treated as a prior conviction
28 if the subsequent offense for which the person is to be
29 sentenced was committed during such period of probation or
30 community control.
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1 (3)(a) In a separate proceeding, the court shall
2 determine if the defendant is a habitual felony offender or a
3 habitual violent felony offender. The procedure shall be as
4 follows:
5 1. The court shall obtain and consider a presentence
6 investigation prior to the imposition of a sentence as a
7 habitual felony offender or a habitual violent felony
8 offender.
9 2. Written notice shall be served on the defendant and
10 the defendant's attorney a sufficient time prior to the entry
11 of a plea or prior to the imposition of sentence in order to
12 allow the preparation of a submission on behalf of the
13 defendant.
14 3. Except as provided in subparagraph 1., all evidence
15 presented shall be presented in open court with full rights of
16 confrontation, cross-examination, and representation by
17 counsel.
18 4. Each of the findings required as the basis for such
19 sentence shall be found to exist by a preponderance of the
20 evidence and shall be appealable to the extent normally
21 applicable to similar findings.
22 5. For the purpose of identification of a habitual
23 felony offender or a habitual violent felony offender, the
24 court shall fingerprint the defendant pursuant to s. 921.241.
25 6. For an offense committed on or after October 1,
26 1995, if the state attorney pursues a habitual felony offender
27 sanction or a habitual violent felony offender sanction
28 against the defendant and the court, in a separate proceeding
29 pursuant to this paragraph, determines that the defendant
30 meets the criteria under subsection (1) for imposing such
31 sanction, the court must sentence the defendant as a habitual
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1 felony offender or a habitual violent felony offender, subject
2 to imprisonment pursuant to this section unless the court
3 finds that such sentence is not necessary for the protection
4 of the public. If the court finds that it is not necessary
5 for the protection of the public to sentence the defendant as
6 a habitual felony offender or a habitual violent felony
7 offender, the court shall provide written reasons; a written
8 transcript of orally stated reasons is permissible, if filed
9 by the court within 7 days after the date of sentencing. Each
10 month, the court shall submit to the Office of Economic and
11 Demographic Research of the Legislature the written reasons or
12 transcripts in each case in which the court determines not to
13 sentence a defendant as a habitual felony offender or a
14 habitual violent felony offender as provided in this
15 subparagraph.
16 (b) In a separate proceeding, the court shall
17 determine if the defendant is a three-time violent felony
18 offender. The procedure shall be as follows:
19 1. The court shall obtain and consider a presentence
20 investigation prior to the imposition of a sentence as a
21 three-time violent felony offender.
22 2. Written notice shall be served on the defendant and
23 the defendant's attorney a sufficient time prior to the entry
24 of a plea or prior to the imposition of sentence in order to
25 allow the preparation of a submission on behalf of the
26 defendant.
27 3. Except as provided in subparagraph 1., all evidence
28 presented shall be presented in open court with full rights of
29 confrontation, cross-examination, and representation by
30 counsel.
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1 4. Each of the findings required as the basis for such
2 sentence shall be found to exist by a preponderance of the
3 evidence and shall be appealable to the extent normally
4 applicable to similar findings.
5 5. For the purpose of identification of a three-time
6 violent felony offender, the court shall fingerprint the
7 defendant pursuant to s. 921.241.
8 6. For an offense committed on or after the effective
9 date of this act, if the state attorney pursues a three-time
10 violent felony offender sanction against the defendant and the
11 court, in a separate proceeding pursuant to this paragraph,
12 determines that the defendant meets the criteria under
13 subsection (1) for imposing such sanction, the court must
14 sentence the defendant as a three-time violent felony
15 offender, subject to imprisonment pursuant to this section as
16 provided in paragraph (4)(c).
17 (c)(b) In a separate proceeding, the court shall
18 determine whether the defendant is a violent career criminal
19 with respect to a primary offense committed on or after
20 October 1, 1995. The procedure shall be as follows:
21 1. Written notice shall be served on the defendant and
22 the defendant's attorney a sufficient time prior to the entry
23 of a plea or prior to the imposition of sentence in order to
24 allow the preparation of a submission on behalf of the
25 defendant.
26 2. All evidence presented shall be presented in open
27 court with full rights of confrontation, cross-examination,
28 and representation by counsel.
29 3. Each of the findings required as the basis for such
30 sentence shall be found to exist by a preponderance of the
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1 evidence and shall be appealable only as provided in paragraph
2 (d)(c).
3 4. For the purpose of identification, the court shall
4 fingerprint the defendant pursuant to s. 921.241.
5 5. For an offense committed on or after October 1,
6 1995, if the state attorney pursues a violent career criminal
7 sanction against the defendant and the court, in a separate
8 proceeding pursuant to this paragraph, determines that the
9 defendant meets the criteria under subsection (1) for imposing
10 such sanction, the court must sentence the defendant as a
11 violent career criminal, subject to imprisonment pursuant to
12 this section unless the court finds that such sentence is not
13 necessary for the protection of the public. If the court
14 finds that it is not necessary for the protection of the
15 public to sentence the defendant as a violent career criminal,
16 the court shall provide written reasons; a written transcript
17 of orally stated reasons is permissible, if filed by the court
18 within 7 days after the date of sentencing. Each month, the
19 court shall submit to the Office of Economic and Demographic
20 Research of the Legislature the written reasons or transcripts
21 in each case in which the court determines not to sentence a
22 defendant as a violent career criminal as provided in this
23 subparagraph.
24 (d)(c)1. A person sentenced under paragraph (4)(d)(c)
25 as a violent career criminal has the right of direct appeal,
26 and either the state or the defendant may petition the trial
27 court to vacate an illegal sentence at any time. However, the
28 determination of the trial court to impose or not to impose a
29 violent career criminal sentence is presumed appropriate and
30 no petition or motion for collateral or other postconviction
31 relief may be considered based on an allegation either by the
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1 state or the defendant that such sentence is inappropriate,
2 inadequate, or excessive.
3 2. It is the intent of the Legislature that, with
4 respect to both direct appeal and collateral review of violent
5 career criminal sentences, all claims of error or illegality
6 be raised at the first opportunity and that no claim should be
7 filed more than 2 years after the judgment and sentence became
8 final, unless it is established that the basis for the claim
9 could not have been ascertained at the time by the exercise of
10 due diligence. Technical violations and mistakes at trials and
11 sentencing proceedings involving violent career criminals that
12 do not affect due process or fundamental fairness are not
13 appealable by either the state or the defendant.
14 3. It is the intent of the Legislature that no funds,
15 resources, or employees of the state or its political
16 subdivisions be used, directly or indirectly, in appellate or
17 collateral proceedings based on violent career criminal
18 sentencing, except when such use is constitutionally or
19 statutorily mandated.
20 (4)(a) The court, in conformity with the procedure
21 established in paragraph (3)(a), may sentence the habitual
22 felony offender as follows:
23 1. In the case of a life felony or a felony of the
24 first degree, for life.
25 2. In the case of a felony of the second degree, for a
26 term of years not exceeding 30.
27 3. In the case of a felony of the third degree, for a
28 term of years not exceeding 10.
29 (b) The court, in conformity with the procedure
30 established in paragraph (3)(a), may sentence the habitual
31 violent felony offender as follows:
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1 1. In the case of a life felony or a felony of the
2 first degree, for life, and such offender shall not be
3 eligible for release for 15 years.
4 2. In the case of a felony of the second degree, for a
5 term of years not exceeding 30, and such offender shall not be
6 eligible for release for 10 years.
7 3. In the case of a felony of the third degree, for a
8 term of years not exceeding 10, and such offender shall not be
9 eligible for release for 5 years.
10 (c)1. The court, in conformity with the procedure
11 established in paragraph (3)(b), must sentence the three-time
12 violent felony offender to a mandatory minimum term of
13 imprisonment, as follows:
14 a. In the case of a felony punishable by life, to a
15 term of imprisonment for life;
16 b. In the case of a felony of the first degree, to a
17 term of imprisonment of 30 years;
18 c. In the case of a felony of the second degree, to a
19 term of imprisonment of 15 years; or
20 d. In the case of a felony of the third degree, to a
21 term of imprisonment of 5 years.
22 2. Nothing in this subsection shall prevent a court
23 from imposing a greater sentence of incarceration as
24 authorized by law.
25 (d)(c) The court, in conformity with the procedure
26 established in paragraph (3)(c)(b), shall sentence the violent
27 career criminal as follows:
28 1. In the case of a life felony or a felony of the
29 first degree, for life.
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1 2. In the case of a felony of the second degree, for a
2 term of years not exceeding 40, with a mandatory minimum term
3 of 30 years' imprisonment.
4 3. In the case of a felony of the third degree, for a
5 term of years not exceeding 15, with a mandatory minimum term
6 of 10 years' imprisonment.
7 (e)(d) If the court finds, pursuant to paragraph
8 (3)(a) or paragraph (3)(c)(b), that it is not necessary for
9 the protection of the public to sentence a defendant who meets
10 the criteria for sentencing as a habitual felony offender, a
11 habitual violent felony offender, or a violent career
12 criminal, with respect to an offense committed on or after
13 October 1, 1995, sentence shall be imposed without regard to
14 this section.
15 (f)(e) At any time when it appears to the court that
16 the defendant is eligible for sentencing under this section,
17 the court shall make that determination as provided in
18 paragraph (3)(a), or paragraph (3)(b), or paragraph (3)(c).
19 (g)(f) A sentence imposed under this section shall not
20 be increased after such imposition.
21 (h)(g) A sentence imposed under this section is not
22 subject to s. 921.002.
23 (i)(h) The provisions of this section do not apply to
24 capital felonies, and a sentence authorized under this section
25 does not preclude the imposition of the death penalty for a
26 capital felony.
27 (j)(i) The provisions of s. 947.1405 shall apply to
28 persons sentenced as habitual felony offenders and persons
29 sentenced as habitual violent felony offenders.
30 (k)(j)1. A defendant sentenced under this section as a
31 habitual felony offender, a habitual violent felony offender,
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1 or a violent career criminal is eligible for gain-time granted
2 by the Department of Corrections as provided in s.
3 944.275(4)(b).
4 2. For an offense committed on or after October 1,
5 1995, a defendant sentenced under this section as a violent
6 career criminal is not eligible for any form of discretionary
7 early release, other than pardon or executive clemency, or
8 conditional medical release granted pursuant to s. 947.149.
9 3. For an offense committed on or after July 1, 1999,
10 a defendant sentenced under this section as a three-time
11 violent felony offender shall be released only by expiration
12 of sentence and shall not be eligible for parole, control
13 release, or any form of early release.
14 (5) In order to be counted as a prior felony for
15 purposes of sentencing under this section, the felony must
16 have resulted in a conviction sentenced separately prior to
17 the current offense and sentenced separately from any other
18 felony conviction that is to be counted as a prior felony.
19 (6) The purpose of this section is to provide uniform
20 punishment for those crimes made punishable under this
21 section, and to this end, a reference to this section
22 constitutes a general reference under the doctrine of
23 incorporation by reference.
24 Section 6. Section 790.235, Florida Statutes, is
25 amended to read:
26 790.235 Possession of firearm by violent career
27 criminal unlawful; penalty.--
28 (1) Any person who meets the violent career criminal
29 criteria under s. 775.084(1)(d)(c), regardless of whether such
30 person is or has previously been sentenced as a violent career
31 criminal, who owns or has in his or her care, custody,
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1 possession, or control any firearm or electric weapon or
2 device, or carries a concealed weapon, including a tear gas
3 gun or chemical weapon or device, commits a felony of the
4 first degree, punishable as provided in s. 775.082, s.
5 775.083, or s. 775.084. A person convicted of a violation of
6 this section shall be sentenced to a mandatory minimum of 15
7 years' imprisonment; however, if the person would be sentenced
8 to a longer term of imprisonment under s. 775.084(4)(d)(c),
9 the person must be sentenced under that provision. A person
10 convicted of a violation of this section is not eligible for
11 any form of discretionary early release, other than pardon,
12 executive clemency, or conditional medical release under s.
13 947.149.
14 (2) For purposes of this section, the previous felony
15 convictions necessary to meet the violent career criminal
16 criteria under s. 775.084(1)(d)(c) may be convictions for
17 felonies committed as an adult or adjudications of delinquency
18 for felonies committed as a juvenile. In order to be counted
19 as a prior felony for purposes of this section, the felony
20 must have resulted in a conviction sentenced separately, or an
21 adjudication of delinquency entered separately, prior to the
22 current offense, and sentenced or adjudicated separately from
23 any other felony that is to be counted as a prior felony.
24 (3) This section shall not apply to a person whose
25 civil rights and firearm authority have been restored.
26 Section 12. In order to inform the public and to deter
27 and prevent crime in the state, the Executive Office of the
28 Governor shall place public service announcements in visible
29 local media throughout the state explaining the penalties
30 provided in this act.
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1 Section 2. Effective October 1, 1999, paragraph (c) of
2 subsection (1) of section 775.084, Florida Statutes, which was
3 redesignated as paragraph (d) of said subsection by section 3
4 of chapter 99-188, Laws of Florida, and as reenacted by
5 section 1 of this act, is further amended to read:
6 775.084 Violent career criminals; habitual felony
7 offenders and habitual violent felony offenders; three-time
8 violent felony offenders; definitions; procedure; enhanced
9 penalties or mandatory minimum prison terms.--
10 (1) As used in this act:
11 (d) "Violent career criminal" means a defendant for
12 whom the court must impose imprisonment pursuant to paragraph
13 (4)(d), if it finds that:
14 1. The defendant has previously been convicted as an
15 adult three or more times for an offense in this state or
16 other qualified offense that is:
17 a. Any forcible felony, as described in s. 776.08;
18 b. Aggravated stalking, as described in s. 784.048(3)
19 and (4);
20 c. Aggravated child abuse, as described in s.
21 827.03(2);
22 d. Aggravated abuse of an elderly person or disabled
23 adult, as described in s. 825.102(2);
24 e. Lewd or lascivious battery, lewd or lascivious
25 molestation, lewd or lascivious conduct, or lewd or lascivious
26 exhibition, lascivious, or indecent conduct, as described in
27 s. 800.04;
28 f. Escape, as described in s. 944.40; or
29 g. A felony violation of chapter 790 involving the use
30 or possession of a firearm.
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1 2. The defendant has been incarcerated in a state
2 prison or a federal prison.
3 3. The primary felony offense for which the defendant
4 is to be sentenced is a felony enumerated in subparagraph 1.
5 and was committed on or after October 1, 1995, and:
6 a. While the defendant was serving a prison sentence
7 or other sentence, or court-ordered or lawfully imposed
8 supervision that is imposed as a result of a prior conviction
9 for an enumerated felony; or
10 b. Within 5 years after the conviction of the last
11 prior enumerated felony, or within 5 years after the
12 defendant's release from a prison sentence, probation,
13 community control, control release, conditional release,
14 parole, or court-ordered or lawfully imposed supervision or
15 other sentence that is imposed as a result of a prior
16 conviction for an enumerated felony, whichever is later.
17 4. The defendant has not received a pardon for any
18 felony or other qualified offense that is necessary for the
19 operation of this paragraph.
20 5. A conviction of a felony or other qualified offense
21 necessary to the operation of this paragraph has not been set
22 aside in any postconviction proceeding.
23 Section 3. Except as specifically provided otherwise
24 in this act, the provisions reenacted by this act shall be
25 applied retroactively to July 1, 1999, or as soon thereafter
26 as the Constitution of the State of Florida and the
27 Constitution of the United States may permit.
28 Section 4. Except as otherwise provided herein, this
29 act shall take effect upon becoming a law.
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2 HOUSE SUMMARY
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Reenacts provisions of chapter 99-188, Laws of Florida,
4 which created the "Three-Strike Violent Felony Offender
Act." See bill for details.
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