House Bill hb1397er

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  1                                 

  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

31  


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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:

30  

31  


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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.

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 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.

30  

31  


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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.

31  


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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.

31  


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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

31  


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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.

30  

31  


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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.

31  


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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.

31  


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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.

30  

31  


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