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CHAPTER 775
DEFINITIONS; GENERAL PENALTIES; REGISTRATION OF CRIMINALS
775.01 Common law of England.
775.011 Short title; applicability to antecedent offenses.
775.012 General purposes.
775.02 Punishment of common-law offenses.
775.021 Rules of construction.
775.027 Insanity defense.
775.03 Benefit of clergy.
775.04 What penal acts or omissions not public offenses.
775.051 Voluntary intoxication; not a defense; evidence not admissible
for certain purposes; exception.
775.08 Classes and definitions of offenses.
775.081 Classifications of felonies and misdemeanors.
775.082 Penalties; applicability of sentencing structures; mandatory
minimum sentences for certain reoffenders previously released from
prison.
775.0823 Violent offenses committed against law enforcement officers,
correctional officers, state attorneys, assistant state attorneys,
justices, or judges.
775.083 Fines.
775.0835 Fines; surcharges; Crimes Compensation Trust Fund.
775.0837 Habitual misdemeanor offenders.
775.084 Violent career criminals; habitual felony offenders and habitual
violent felony offenders; three-time violent felony offenders;
definitions; procedure; enhanced penalties or mandatory minimum prison
terms.
775.08401 Habitual offenders and habitual violent felony offenders;
violent career criminals; eligibility criteria.
775.0841 Legislative findings and intent.
775.0842 Persons subject to career criminal prosecution efforts.
775.0843 Policies to be adopted for career criminal cases.
775.08435 Prohibition on withholding adjudication in felony cases.
775.0844 White Collar Crime Victim Protection Act.
775.0845 Wearing mask while committing offense; reclassification.
775.0846 Wearing bulletproof vest while committing certain offenses.
775.0849 Public service announcements; ch. 99-188.
775.085 Evidencing prejudice while committing offense; reclassification.
775.0861 Offenses against persons on the grounds of religious
institutions; reclassification.
775.087 Possession or use of weapon; aggravated battery; felony
reclassification; minimum sentence.
775.0871 Public service announcements.
775.0875 Unlawful taking, possession, or use of law enforcement
officer's firearm; crime reclassification; penalties.
775.0877 Criminal transmission of HIV; procedures; penalties.
775.089 Restitution.
775.091 Public service.
775.13 Registration of convicted felons, exemptions; penalties.
775.14 Limitation on withheld sentences.
775.15 Time limitations; general time limitations; exceptions.
775.16 Drug offenses; additional penalties.
775.21 The Florida Sexual Predators Act.
775.24 Duty of the court to uphold laws governing sexual predators and
sexual offenders.
775.25 Prosecutions for acts or omissions.
775.26 Registration of career offenders and public notification;
legislative findings and intent.
775.261 The Florida Career Offender Registration Act.
775.30 Terrorism; defined.
775.31 Facilitating or furthering terrorism; felony or misdemeanor
reclassification.
775.01 Common law of England.--The common law of England in
relation to crimes, except so far as the same relates to the modes and
degrees of punishment, shall be of full force in this state where there
is no existing provision by statute on the subject.
775.011 Short title; applicability to antecedent offenses.--
(1) This act shall be known and may be cited as the "Florida Criminal
Code."
(2) Except as provided in subsection (3), the code does not apply to
offenses committed prior to October 1, 1975, and prosecutions for such
offenses shall be governed by the prior law. For the purposes of this
section, an offense was committed prior to October 1, 1975, if any of
the material elements of the offense occurred prior thereto.
(3) In any case pending on or after October 1, 1975, involving an
offense committed prior to such date, the provisions of the code
involving any quasi-procedural matter shall govern, insofar as they are
justly applicable, and the provisions of the code according a defense or
mitigation or establishing a penalty shall apply only with the consent
of the defendant.
775.012 General purposes.--The general purposes of the provisions
of the code are:
(1) To proscribe conduct that improperly causes or threatens substantial
harm to individual or public interest.
(2) To give fair warning to the people of the state in understandable
language of the nature of the conduct proscribed and of the sentences
authorized upon conviction.
(3) To define clearly the material elements constituting an offense and
the accompanying state of mind or criminal intent required for that
offense.
(4) To differentiate on reasonable grounds between serious and minor
offenses and to establish appropriate disposition for each.
(5) To safeguard conduct that is without fault or legitimate state
interest from being condemned as criminal.
(6) To ensure the public safety by deterring the commission of offenses
and providing for the opportunity for rehabilitation of those convicted
and for their confinement when required in the interests of public
protection.
775.02 Punishment of common-law offenses.--When there exists no
such provision by statute, the court shall proceed to punish such
offense by fine or imprisonment, but the fine shall not exceed $500, nor
the imprisonment 12 months.
775.021 Rules of construction.--
(1) The provisions of this code and offenses defined by other statutes
shall be strictly construed; when the language is susceptible of
differing constructions, it shall be construed most favorably to the
accused.
(2) The provisions of this chapter are applicable to offenses defined by
other statutes, unless the code otherwise provides.
(3) This section does not affect the power of a court to punish for
contempt or to employ any sanction authorized by law for the enforcement
of an order or a civil judgment or decree.
(4)(a) Whoever, in the course of one criminal transaction or episode,
commits an act or acts which constitute one or more separate criminal
offenses, upon conviction and adjudication of guilt, shall be sentenced
separately for each criminal offense; and the sentencing judge may order
the sentences to be served concurrently or consecutively. For the
purposes of this subsection, offenses are separate if each offense
requires proof of an element that the other does not, without regard to
the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each
criminal offense committed in the course of one criminal episode or
transaction and not to allow the principle of lenity as set forth in
subsection (1) to determine legislative intent. Exceptions to this rule
of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by
statute.
3. Offenses which are lesser offenses the statutory elements of which
are subsumed by the greater offense.
775.027 Insanity defense.--
(1) AFFIRMATIVE DEFENSE.--All persons are presumed to be sane. It is an
affirmative defense to a criminal prosecution that, at the time of the
commission of the acts constituting the offense, the defendant was
insane. Insanity is established when:
(a) The defendant had a mental infirmity, disease, or defect; and
(b) Because of this condition, the defendant:
1. Did not know what he or she was doing or its consequences; or
2. Although the defendant knew what he or she was doing and its
consequences, the defendant did not know that what he or she was doing
was wrong.
Mental infirmity, disease, or defect does not constitute a defense of
insanity except as provided in this subsection.
(2) BURDEN OF PROOF.--The defendant has the burden of proving the
defense of insanity by clear and convincing evidence.
775.03 Benefit of clergy.--The doctrine of benefit of clergy
shall have no operation in this state.
775.04 What penal acts or omissions not public offenses.--Acts or
omissions to which a pecuniary penalty is attached, recoverable by
action by a person for his or her own use or for the use, in whole or in
part, of the state or of a county or a public body, or of a corporation,
are not public offenses within the meaning of these statutes.
775.051 Voluntary intoxication; not a defense; evidence not
admissible for certain purposes; exception.--Voluntary intoxication
resulting from the consumption, injection, or other use of alcohol or
other controlled substance as described in chapter 893 is not a defense
to any offense proscribed by law. Evidence of a defendant's voluntary
intoxication is not admissible to show that the defendant lacked the
specific intent to commit an offense and is not admissible to show that
the defendant was insane at the time of the offense, except when the
consumption, injection, or use of a controlled substance under chapter
893 was pursuant to a lawful prescription issued to the defendant by a
practitioner as defined in s. 893.02.
775.08 Classes and definitions of offenses.--When used in the
laws of this state:
(1) The term "felony" shall mean any criminal offense that is punishable
under the laws of this state, or that would be punishable if committed
in this state, by death or imprisonment in a state penitentiary. "State
penitentiary" shall include state correctional facilities. A person
shall be imprisoned in the state penitentiary for each sentence which,
except an extended term, exceeds 1 year.
(2) The term "misdemeanor" shall mean any criminal offense that is
punishable under the laws of this state, or that would be punishable if
committed in this state, by a term of imprisonment in a county
correctional facility, except an extended term, not in excess of 1 year.
The term "misdemeanor" shall not mean a conviction for any noncriminal
traffic violation of any provision of chapter 316 or any municipal or
county ordinance.
(3) The term "noncriminal violation" shall mean any offense that is
punishable under the laws of this state, or that would be punishable if
committed in this state, by no other penalty than a fine, forfeiture, or
other civil penalty. A noncriminal violation does not constitute a
crime, and conviction for a noncriminal violation shall not give rise to
any legal disability based on a criminal offense. The term "noncriminal
violation" shall not mean any conviction for any violation of any
municipal or county ordinance. Nothing contained in this code shall
repeal or change the penalty for a violation of any municipal or county
ordinance.
(4) The term "crime" shall mean a felony or misdemeanor.
775.081 Classifications of felonies and misdemeanors.--
(1) Felonies are classified, for the purpose of sentence and for any
other purpose specifically provided by statute, into the following
categories:
(a) Capital felony;
(b) Life felony;
(c) Felony of the first degree;
(d) Felony of the second degree; and
(e) Felony of the third degree.
A capital felony and a life felony must be so designated by statute.
Other felonies are of the particular degree designated by statute. Any
crime declared by statute to be a felony without specification of degree
is of the third degree, except that this provision shall not affect
felonies punishable by life imprisonment for the first offense.
(2) Misdemeanors are classified, for the purpose of sentence and for any
other purpose specifically provided by statute, into the following
categories:
(a) Misdemeanor of the first degree; and
(b) Misdemeanor of the second degree.
A misdemeanor is of the particular degree designated by statute. Any
crime declared by statute to be a misdemeanor without specification of
degree is of the second degree.
(3) This section is supplemental to, and is not to be construed to
alter, the law of this state establishing and governing criminal
offenses that are divided into degrees by virtue of distinctive elements
comprising such offenses, regardless of whether such law is established
by constitutional provision, statute, court rule, or court decision.
775.082 Penalties; applicability of sentencing structures; mandatory
minimum sentences for certain reoffenders previously released from
prison.--
(1) A person who has been convicted of a capital felony shall be
punished by death if the proceeding held to determine sentence according
to the procedure set forth in s. 921.141 results in findings by the
court that such person shall be punished by death, otherwise such person
shall be punished by life imprisonment and shall be ineligible for
parole.
(2) In the event the death penalty in a capital felony is held to be
unconstitutional by the Florida Supreme Court or the United States
Supreme Court, the court having jurisdiction over a person previously
sentenced to death for a capital felony shall cause such person to be
brought before the court, and the court shall sentence such person to
life imprisonment as provided in subsection (1). No sentence of death
shall be reduced as a result of a determination that a method of
execution is held to be unconstitutional under the State Constitution or
the Constitution of the United States.
(3) A person who has been convicted of any other designated felony may
be punished as follows:
(a)1. For a life felony committed prior to October 1, 1983, by a term of
imprisonment for life or for a term of years not less than 30.
2. For a life felony committed on or after October 1, 1983, by a term of
imprisonment for life or by a term of imprisonment not exceeding 40
years.
3. Except as provided in subparagraph 4., for a life felony committed on
or after July 1, 1995, by a term of imprisonment for life or by
imprisonment for a term of years not exceeding life imprisonment.
4. For a life felony committed on or after September 1, 2005, which is a
violation of s. 800.04(5)(b), by:
a. A term of imprisonment for life; or
b. A split sentence that is a term of not less than 25 years'
imprisonment and not exceeding life imprisonment, followed by probation
or community control for the remainder of the person's natural life, as
provided in s. 948.012(4).
(b) For a felony of the first degree, by a term of imprisonment not
exceeding 30 years or, when specifically provided by statute, by
imprisonment for a term of years not exceeding life imprisonment.
(c) For a felony of the second degree, by a term of imprisonment not
exceeding 15 years.
(d) For a felony of the third degree, by a term of imprisonment not
exceeding 5 years.
(4) A person who has been convicted of a designated misdemeanor may be
sentenced as follows:
(a) For a misdemeanor of the first degree, by a definite term of
imprisonment not exceeding 1 year;
(b) For a misdemeanor of the second degree, by a definite term of
imprisonment not exceeding 60 days.
(5) Any person who has been convicted of a noncriminal violation may not
be sentenced to a term of imprisonment nor to any other punishment more
severe than a fine, forfeiture, or other civil penalty, except as
provided in chapter 316 or by ordinance of any city or county.
(6) Nothing in this section shall be construed to alter the operation of
any statute of this state authorizing a trial court, in its discretion,
to impose a sentence of imprisonment for an indeterminate period within
minimum and maximum limits as provided by law, except as provided in
subsection (1).
(7) This section does not deprive the court of any authority conferred
by law to decree a forfeiture of property, suspend or cancel a license,
remove a person from office, or impose any other civil penalty. Such a
judgment or order may be included in the sentence.
(8)(a) The sentencing guidelines that were effective October 1, 1983,
and any revisions thereto, apply to all felonies, except capital
felonies, committed on or after October 1, 1983, and before January 1,
1994, and to all felonies, except capital felonies and life felonies,
committed before October 1, 1983, when the defendant affirmatively
selects to be sentenced pursuant to such provisions.
(b) The 1994 sentencing guidelines, that were effective January 1, 1994,
and any revisions thereto, apply to all felonies, except capital
felonies, committed on or after January 1, 1994, and before October 1,
1995.
(c) The 1995 sentencing guidelines that were effective October 1, 1995,
and any revisions thereto, apply to all felonies, except capital
felonies, committed on or after October 1, 1995, and before October 1,
1998.
(d) The Criminal Punishment Code applies to all felonies, except capital
felonies, committed on or after October 1, 1998. Any revision to the
Criminal Punishment Code applies to sentencing for all felonies, except
capital felonies, committed on or after the effective date of the
revision.
(e) Felonies, except capital felonies, with continuing dates of
enterprise shall be sentenced under the sentencing guidelines or the
Criminal Punishment Code in effect on the beginning date of the criminal
activity.
(9)(a)1. "Prison releasee reoffender" means any defendant who commits,
or attempts to commit:
a. Treason;
b. Murder;
c. Manslaughter;
d. Sexual battery;
e. Carjacking;
f. Home-invasion robbery;
g. Robbery;
h. Arson;
i. Kidnapping;
j. Aggravated assault with a deadly weapon;
k. Aggravated battery;
l. Aggravated stalking;
m. Aircraft piracy;
n. Unlawful throwing, placing, or discharging of a destructive device or
bomb;
o. Any felony that involves the use or threat of physical force or
violence against an individual;
p. Armed burglary;
q. Burglary of a dwelling or burglary of an occupied structure; or
r. Any felony violation of s. 790.07, s. 800.04, s. 827.03, or s.
827.071;
within 3 years after being released from a state correctional facility
operated by the Department of Corrections or a private vendor or within
3 years after being released from a correctional institution of another
state, the District of Columbia, the United States, any possession or
territory of the United States, or any foreign jurisdiction, following
incarceration for an offense for which the sentence is punishable by
more than 1 year in this state.
2. "Prison releasee reoffender" also means any defendant who commits or
attempts to commit any offense listed in sub-subparagraphs (a)1.a.-r.
while the defendant was serving a prison sentence or on escape status
from a state correctional facility operated by the Department of
Corrections or a private vendor or while the defendant was on escape
status from a correctional institution of another state, the District of
Columbia, the United States, any possession or territory of the United
States, or any foreign jurisdiction, following incarceration for an
offense for which the sentence is punishable by more than 1 year in this
state.
3. If the state attorney determines that a defendant is a prison
releasee reoffender as defined in subparagraph 1., the state attorney
may seek to have the court sentence the defendant as a prison releasee
reoffender. Upon proof from the state attorney that establishes by a
preponderance of the evidence that a defendant is a prison releasee
reoffender as defined in this section, such defendant is not eligible
for sentencing under the sentencing guidelines and must be sentenced as
follows:
a. For a felony punishable by life, by a term of imprisonment for life;
b. For a felony of the first degree, by a term of imprisonment of 30
years;
c. For a felony of the second degree, by a term of imprisonment of 15
years; and
d. For a felony of the third degree, by a term of imprisonment of 5
years.
(b) A person sentenced under paragraph (a) shall be released only by
expiration of sentence and shall not be eligible for parole, control
release, or any form of early release. Any person sentenced under
paragraph (a) must serve 100 percent of the court-imposed sentence.
(c) Nothing in this subsection shall prevent a court from imposing a
greater sentence of incarceration as authorized by law, pursuant to s.
775.084 or any other provision of law.
(d)1. It is the intent of the Legislature that offenders previously
released from prison who meet the criteria in paragraph (a) be punished
to the fullest extent of the law and as provided in this subsection,
unless the state attorney determines that extenuating circumstances
exist which preclude the just prosecution of the offender, including
whether the victim recommends that the offender not be sentenced as
provided in this subsection.
2. For every case in which the offender meets the criteria in paragraph
(a) and does not receive the mandatory minimum prison sentence, the
state attorney must explain the sentencing deviation in writing and
place such explanation in the case file maintained by the state
attorney. On an annual basis, each state attorney shall submit copies of
deviation memoranda regarding offenses committed on or after the
effective date of this subsection, to the president of the Florida
Prosecuting Attorneys Association, Inc. The association must maintain
such information, and make such information available to the public upon
request, for at least a 10-year period.
(10) The purpose of this section is to provide uniform punishment for
those crimes made punishable under this section and, to this end, a
reference to this section constitutes a general reference under the
doctrine of incorporation by reference.
775.0823 Violent offenses committed against law enforcement officers,
correctional officers, state attorneys, assistant state attorneys,
justices, or judges.--The Legislature does hereby provide for an
increase and certainty of penalty for any person convicted of a violent
offense against any law enforcement or correctional officer, as defined
in s. 943.10(1), (2), (3), (6), (7), (8), or (9); against any state
attorney elected pursuant to s. 27.01 or assistant state attorney
appointed under s. 27.181; or against any justice or judge of a court
described in Art. V of the State Constitution, which offense arises out
of or in the scope of the officer's duty as a law enforcement or
correctional officer, the state attorney's or assistant state attorney's
duty as a prosecutor or investigator, or the justice's or judge's duty
as a judicial officer, as follows:
(1) For murder in the first degree as described in s. 782.04(1), if the
death sentence is not imposed, a sentence of imprisonment for life
without eligibility for release.
(2) For attempted murder in the first degree as described in s.
782.04(1), a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(3) For murder in the second degree as described in s. 782.04(2) and
(3), a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(4) For attempted murder in the second degree as described in s.
782.04(2) and (3), a sentence pursuant to s. 775.082, s. 775.083, or s.
775.084.
(5) For murder in the third degree as described in s. 782.04(4), a
sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(6) For attempted murder in the third degree as described in s.
782.04(4), a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(7) For manslaughter as described in s. 782.07 during the commission of
a crime, a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(8) For kidnapping as described in s. 787.01, a sentence pursuant to s.
775.082, s. 775.083, or s. 775.084.
(9) For aggravated battery as described in s. 784.045, a sentence
pursuant to s. 775.082, s. 775.083, or s. 775.084.
(10) For aggravated assault as described in s. 784.021, a sentence
pursuant to s. 775.082, s. 775.083, or s. 775.084.
Notwithstanding the provisions of s. 948.01, with respect to any person
who is found to have violated this section, adjudication of guilt or
imposition of sentence shall not be suspended, deferred, or withheld.
775.083 Fines.--
(1) A person who has been convicted of an offense other than a capital
felony may be sentenced to pay a fine in addition to any punishment
described in s. 775.082; when specifically authorized by statute, he or
she may be sentenced to pay a fine in lieu of any punishment described
in s. 775.082. A person who has been convicted of a noncriminal
violation may be sentenced to pay a fine. Fines for designated crimes
and for noncriminal violations shall not exceed:
(a) $15,000, when the conviction is of a life felony.
(b) $10,000, when the conviction is of a felony of the first or second
degree.
(c) $5,000, when the conviction is of a felony of the third degree.
(d) $1,000, when the conviction is of a misdemeanor of the first degree.
(e) $500, when the conviction is of a misdemeanor of the second degree
or a noncriminal violation.
(f) Any higher amount equal to double the pecuniary gain derived from
the offense by the offender or double the pecuniary loss suffered by the
victim.
(g) Any higher amount specifically authorized by statute.
Fines imposed in this subsection shall be deposited by the clerk of the
court in the fine and forfeiture fund established pursuant to s. 142.01.
If a defendant is unable to pay a fine, the court may defer payment of
the fine to a date certain.
(2) In addition to the fines set forth in subsection (1), court costs
shall be assessed and collected in each instance a defendant pleads nolo
contendere to, or is convicted of, or adjudicated delinquent for, a
felony, a misdemeanor, or a criminal traffic offense under state law, or
a violation of any municipal or county ordinance if the violation
constitutes a misdemeanor under state law. The court costs imposed by
this section shall be $50 for a felony and $20 for any other offense and
shall be deposited by the clerk of the court into an appropriate county
account for disbursement for the purposes provided in this subsection. A
county shall account for the funds separately from other county funds as
crime prevention funds. The county, in consultation with the sheriff,
must expend such funds for crime prevention programs in the county,
including safe neighborhood programs under ss. 163.501-163.523.
(3) The purpose of this section is to provide uniform penalty
authorization for criminal offenses and, to this end, a reference to
this section constitutes a general reference under the doctrine of
incorporation by reference.
775.0835 Fines; surcharges; Crimes Compensation Trust Fund.--
(1) When any person pleads guilty or nolo contendere to, or is convicted
of, any felony or misdemeanor under the laws of this state which
resulted in the injury or death of another person, the court may, if it
finds that the defendant has the present ability to pay the fine and
finds that the impact of the fine upon the defendant's dependents will
not cause such dependents to be dependent on public welfare, in addition
to any other penalty, order the defendant to pay a fine, commensurate
with the offense committed and with the probable impact upon the victim,
but not to exceed $10,000. The fine shall be remitted to the Department
of Revenue for deposit in the Crimes Compensation Trust Fund.
(2) The additional $50 obligation created by s. 938.03 shall be
collected, and $49 of each $50 collected shall be remitted to the
Department of Revenue for deposit in the Crimes Compensation Trust Fund,
prior to any fine or surcharge authorized by this chapter. These costs
are considered assessed unless specifically waived by the court. If the
court does not order these costs, it shall state on the record, in
detail, the reasons therefor.
775.0837 Habitual misdemeanor offenders.--
(1) As used in this section, the term:
(a) "Convicted" means a determination of guilt which is the result of a
trial or the entry of a plea of guilty or nolo contendere, regardless of
whether adjudication is withheld.
(b) "Habitual misdemeanor offender" means a defendant who is before the
court for sentencing for a specified misdemeanor offense and who has
previously been convicted, as an adult, of four or more specified
misdemeanor offenses which meet the following criteria:
1. The offenses, in relation to each other and the misdemeanor before
the court for sentencing, are separate offenses that are not part of the
same criminal transaction or episode.
2. The offenses were committed within 1 year of the date that the
misdemeanor before the court for sentencing was committed.
(c) "Specified misdemeanor offense" means those misdemeanor offenses
described in chapter 741, chapter 784, chapter 790, chapter 796, chapter
800, chapter 806, chapter 810, chapter 812, chapter 817, chapter 831,
chapter 832, chapter 843, chapter 856, chapter 893, or chapter 901.
(d) "Imprisonment" means incarceration in a county jail operated by the
county or a private vendor.
(2) If the court finds that a defendant before the court for sentencing
for a misdemeanor is a habitual misdemeanor offender, the court shall,
unless the court makes a finding that an alternative disposition is in
the best interests of the community and defendant, sentence the
defendant as a habitual misdemeanor offender and impose one of the
following sentences:
(a) A term of imprisonment of not less than 6 months, but not to exceed
1 year;
(b) Commitment to a residential treatment program for not less than 6
months, but not to exceed 364 days, provided that the treatment program
is operated by the county or a private vendor with which the county has
contracted to operate such program, or by a private vendor under
contract with the state or licensed by the state to operate such
program, and provided that any referral to a residential treatment
facility is in accordance with the assessment criteria for residential
treatment established by the Department of Children and Family Services,
and that residential treatment beds are available or other
community-based treatment program or a combination of residential and
community-based program; or
(c) Detention for not less than 6 months, but not to exceed 364 days, to
a designated residence, if the detention is supervised or monitored by
the county or by a private vendor with which the county has contracted
to supervise or monitor the detention.
The court may not sentence a defendant under this subsection if the
misdemeanor offense before the court for sentencing has been
reclassified as a felony as a result of any prior qualifying
misdemeanor.
History.--s. 1, ch. 2004-348.
775.084 Violent career criminals; habitual felony offenders and habitual
violent felony offenders; three-time violent felony offenders;
definitions; procedure; enhanced penalties or mandatory minimum prison
terms.--
(1) As used in this act:
(a) "Habitual felony offender" means a defendant for whom the court may
impose an extended term of imprisonment, as provided in paragraph
(4)(a), if it finds that:
1. The defendant has previously been convicted of any combination of two
or more felonies in this state or other qualified offenses.
2. The felony for which the defendant is to be sentenced was committed:
a. While the defendant was serving a prison sentence or other sentence,
or court-ordered or lawfully imposed supervision that is imposed as a
result of a prior conviction for a felony or other qualified offense; or
b. Within 5 years of the date of the conviction of the defendant's last
prior felony or other qualified offense, or within 5 years of the
defendant's release from a prison sentence, probation, community
control, control release, conditional release, parole or court-ordered
or lawfully imposed supervision or other sentence that is imposed as a
result of a prior conviction for a felony or other qualified offense,
whichever is later.
3. The felony for which the defendant is to be sentenced, and one of the
two prior felony convictions, is not a violation of s. 893.13 relating
to the purchase or the possession of a controlled substance.
4. The defendant has not received a pardon for any felony or other
qualified offense that is necessary for the operation of this paragraph.
5. A conviction of a felony or other qualified offense necessary to the
operation of this paragraph has not been set aside in any postconviction
proceeding.
(b) "Habitual violent felony offender" means a defendant for whom the
court may impose an extended term of imprisonment, as provided in
paragraph (4)(b), if it finds that:
1. The defendant has previously been convicted of a felony or an attempt
or conspiracy to commit a felony and one or more of such convictions was
for:
a. Arson;
b. Sexual battery;
c. Robbery;
d. Kidnapping;
e. Aggravated child abuse;
f. Aggravated abuse of an elderly person or disabled adult;
g. Aggravated assault with a deadly weapon;
h. Murder;
i. Manslaughter;
j. Aggravated manslaughter of an elderly person or disabled adult;
k. Aggravated manslaughter of a child;
l. Unlawful throwing, placing, or discharging of a destructive device or
bomb;
m. Armed burglary;
n. Aggravated battery; or
o. Aggravated stalking.
2. The felony for which the defendant is to be sentenced was committed:
a. While the defendant was serving a prison sentence or other sentence,
or court-ordered or lawfully imposed supervision that is imposed as a
result of a prior conviction for an enumerated felony; or
b. Within 5 years of the date of the conviction of the last prior
enumerated felony, or within 5 years of the defendant's release from a
prison sentence, probation, community control, control release,
conditional release, parole, or court-ordered or lawfully imposed
supervision or other sentence that is imposed as a result of a prior
conviction for an enumerated felony, whichever is later.
3. The defendant has not received a pardon on the ground of innocence
for any crime that is necessary for the operation of this paragraph.
4. A conviction of a crime necessary to the operation of this paragraph
has not been set aside in any postconviction proceeding.
(c) "Three-time violent felony offender" means a defendant for whom the
court must impose a mandatory minimum term of imprisonment, as provided
in paragraph (4)(c), if it finds that:
1. The defendant has previously been convicted as an adult two or more
times of a felony, or an attempt to commit a felony, and two or more of
such convictions were for committing, or attempting to commit, any of
the following offenses or combination thereof:
a. Arson;
b. Sexual battery;
c. Robbery;
d. Kidnapping;
e. Aggravated child abuse;
f. Aggravated abuse of an elderly person or disabled adult;
g. Aggravated assault with a deadly weapon;
h. Murder;
i. Manslaughter;
j. Aggravated manslaughter of an elderly person or disabled adult;
k. Aggravated manslaughter of a child;
l. Unlawful throwing, placing, or discharging of a destructive device or
bomb;
m. Armed burglary;
n. Aggravated battery;
o. Aggravated stalking;
p. Home invasion/robbery;
q. Carjacking; or
r. An offense which is in violation of a law of any other jurisdiction
if the elements of the offense are substantially similar to the elements
of any felony offense enumerated in sub-subparagraphs a.-q., or an
attempt to commit any such felony offense.
2. The felony for which the defendant is to be sentenced is one of the
felonies enumerated in sub-subparagraphs 1.a.-q. and was committed:
a. While the defendant was serving a prison sentence or other sentence
imposed as a result of a prior conviction for any offense enumerated in
sub-subparagraphs 1.a.-r.; or
b. Within 5 years after the date of the conviction of the last prior
offense enumerated in sub-subparagraphs 1.a.-r., or within 5 years after
the defendant's release from a prison sentence, probation, community
control, or other sentence imposed as a result of a prior conviction for
any offense enumerated in sub-subparagraphs 1.a.-r., whichever is later.
3. The defendant has not received a pardon on the ground of innocence
for any crime that is necessary for the operation of this paragraph.
4. A conviction of a crime necessary to the operation of this paragraph
has not been set aside in any postconviction proceeding.
(d) "Violent career criminal" means a defendant for whom the court must
impose imprisonment pursuant to paragraph (4)(d), if it finds that:
1. The defendant has previously been convicted as an adult three or more
times for an offense in this state or other qualified offense that is:
a. Any forcible felony, as described in s. 776.08;
b. Aggravated stalking, as described in s. 784.048(3) and (4);
c. Aggravated child abuse, as described in s. 827.03(2);
d. Aggravated abuse of an elderly person or disabled adult, as described
in s. 825.102(2);
e. Lewd or lascivious battery, lewd or lascivious molestation, lewd or
lascivious conduct, or lewd or lascivious exhibition, as described in s.
800.04;
f. Escape, as described in s. 944.40; or
g. A felony violation of chapter 790 involving the use or possession of
a firearm.
2. The defendant has been incarcerated in a state prison or a federal
prison.
3. The primary felony offense for which the defendant is to be sentenced
is a felony enumerated in subparagraph 1. and was committed on or after
October 1, 1995, and:
a. While the defendant was serving a prison sentence or other sentence,
or court-ordered or lawfully imposed supervision that is imposed as a
result of a prior conviction for an enumerated felony; or
b. Within 5 years after the conviction of the last prior enumerated
felony, or within 5 years after the defendant's release from a prison
sentence, probation, community control, control release, conditional
release, parole, or court-ordered or lawfully imposed supervision or
other sentence that is imposed as a result of a prior conviction for an
enumerated felony, whichever is later.
4. The defendant has not received a pardon for any felony or other
qualified offense that is necessary for the operation of this paragraph.
5. A conviction of a felony or other qualified offense necessary to the
operation of this paragraph has not been set aside in any postconviction
proceeding.
(e) "Qualified offense" means any offense, substantially similar in
elements and penalties to an offense in this state, which is in
violation of a law of any other jurisdiction, whether that of another
state, the District of Columbia, the United States or any possession or
territory thereof, or any foreign jurisdiction, that was punishable
under the law of such jurisdiction at the time of its commission by the
defendant by death or imprisonment exceeding 1 year.
(2) For the purposes of this section, the placing of a person on
probation or community control without an adjudication of guilt shall be
treated as a prior conviction.
(3)(a) In a separate proceeding, the court shall determine if the
defendant is a habitual felony offender or a habitual violent felony
offender. The procedure shall be as follows:
1. The court shall obtain and consider a presentence investigation prior
to the imposition of a sentence as a habitual felony offender or a
habitual violent felony offender.
2. Written notice shall be served on the defendant and the defendant's
attorney a sufficient time prior to the entry of a plea or prior to the
imposition of sentence in order to allow the preparation of a submission
on behalf of the defendant.
3. Except as provided in subparagraph 1., all evidence presented shall
be presented in open court with full rights of confrontation,
cross-examination, and representation by counsel.
4. Each of the findings required as the basis for such sentence shall be
found to exist by a preponderance of the evidence and shall be
appealable to the extent normally applicable to similar findings.
5. For the purpose of identification of a habitual felony offender or a
habitual violent felony offender, the court shall fingerprint the
defendant pursuant to s. 921.241.
6. For an offense committed on or after October 1, 1995, if the state
attorney pursues a habitual felony offender sanction or a habitual
violent felony offender sanction against the defendant and the court, in
a separate proceeding pursuant to this paragraph, determines that the
defendant meets the criteria under subsection (1) for imposing such
sanction, the court must sentence the defendant as a habitual felony
offender or a habitual violent felony offender, subject to imprisonment
pursuant to this section unless the court finds that such sentence is
not necessary for the protection of the public. If the court finds that
it is not necessary for the protection of the public to sentence the
defendant as a habitual felony offender or a habitual violent felony
offender, the court shall provide written reasons; a written transcript
of orally stated reasons is permissible, if filed by the court within 7
days after the date of sentencing. Each month, the court shall submit to
the Office of Economic and Demographic Research of the Legislature the
written reasons or transcripts in each case in which the court
determines not to sentence a defendant as a habitual felony offender or
a habitual violent felony offender as provided in this subparagraph.
(b) In a separate proceeding, the court shall determine if the defendant
is a three-time violent felony offender. The procedure shall be as
follows:
1. The court shall obtain and consider a presentence investigation prior
to the imposition of a sentence as a three-time violent felony offender.
2. Written notice shall be served on the defendant and the defendant's
attorney a sufficient time prior to the entry of a plea or prior to the
imposition of sentence in order to allow the preparation of a submission
on behalf of the defendant.
3. Except as provided in subparagraph 1., all evidence presented shall
be presented in open court with full rights of confrontation,
cross-examination, and representation by counsel.
4. Each of the findings required as the basis for such sentence shall be
found to exist by a preponderance of the evidence and shall be
appealable to the extent normally applicable to similar findings.
5. For the purpose of identification of a three-time violent felony
offender, the court shall fingerprint the defendant pursuant to s.
921.241.
6. For an offense committed on or after the effective date of this act,
if the state attorney pursues a three-time violent felony offender
sanction against the defendant and the court, in a separate proceeding
pursuant to this paragraph, determines that the defendant meets the
criteria under subsection (1) for imposing such sanction, the court must
sentence the defendant as a three-time violent felony offender, subject
to imprisonment pursuant to this section as provided in paragraph
(4)(c).
(c) In a separate proceeding, the court shall determine whether the
defendant is a violent career criminal with respect to a primary offense
committed on or after October 1, 1995. The procedure shall be as
follows:
1. Written notice shall be served on the defendant and the defendant's
attorney a sufficient time prior to the entry of a plea or prior to the
imposition of sentence in order to allow the preparation of a submission
on behalf of the defendant.
2. All evidence presented shall be presented in open court with full
rights of confrontation, cross-examination, and representation by
counsel.
3. Each of the findings required as the basis for such sentence shall be
found to exist by a preponderance of the evidence and shall be
appealable only as provided in paragraph (d).
4. For the purpose of identification, the court shall fingerprint the
defendant pursuant to s. 921.241.
5. For an offense committed on or after October 1, 1995, if the state
attorney pursues a violent career criminal sanction against the
defendant and the court, in a separate proceeding pursuant to this
paragraph, determines that the defendant meets the criteria under
subsection (1) for imposing such sanction, the court must sentence the
defendant as a violent career criminal, subject to imprisonment pursuant
to this section unless the court finds that such sentence is not
necessary for the protection of the public. If the court finds that it
is not necessary for the protection of the public to sentence the
defendant as a violent career criminal, the court shall provide written
reasons; a written transcript of orally stated reasons is permissible,
if filed by the court within 7 days after the date of sentencing. Each
month, the court shall submit to the Office of Economic and Demographic
Research of the Legislature the written reasons or transcripts in each
case in which the court determines not to sentence a defendant as a
violent career criminal as provided in this subparagraph.
(d)1. A person sentenced under paragraph (4)(d) as a violent career
criminal has the right of direct appeal, and either the state or the
defendant may petition the trial court to vacate an illegal sentence at
any time. However, the determination of the trial court to impose or not
to impose a violent career criminal sentence is presumed appropriate and
no petition or motion for collateral or other postconviction relief may
be considered based on an allegation either by the state or the
defendant that such sentence is inappropriate, inadequate, or excessive.
2. It is the intent of the Legislature that, with respect to both direct
appeal and collateral review of violent career criminal sentences, all
claims of error or illegality be raised at the first opportunity and
that no claim should be filed more than 2 years after the judgment and
sentence became final, unless it is established that the basis for the
claim could not have been ascertained at the time by the exercise of due
diligence. Technical violations and mistakes at trials and sentencing
proceedings involving violent career criminals that do not affect due
process or fundamental fairness are not appealable by either the state
or the defendant.
3. It is the intent of the Legislature that no funds, resources, or
employees of the state or its political subdivisions be used, directly
or indirectly, in appellate or collateral proceedings based on violent
career criminal sentencing, except when such use is constitutionally or
statutorily mandated.
(4)(a) The court, in conformity with the procedure established in
paragraph (3)(a), may sentence the habitual felony offender as follows:
1. In the case of a life felony or a felony of the first degree, for
life.
2. In the case of a felony of the second degree, for a term of years not
exceeding 30.
3. In the case of a felony of the third degree, for a term of years not
exceeding 10.
(b) The court, in conformity with the procedure established in paragraph
(3)(a), may sentence the habitual violent felony offender as follows:
1. In the case of a life felony or a felony of the first degree, for
life, and such offender shall not be eligible for release for 15 years.
2. In the case of a felony of the second degree, for a term of years not
exceeding 30, and such offender shall not be eligible for release for 10
years.
3. In the case of a felony of the third degree, for a term of years not
exceeding 10, and such offender shall not be eligible for release for 5
years.
(c)1. The court, in conformity with the procedure established in
paragraph (3)(b), must sentence the three-time violent felony offender
to a mandatory minimum term of imprisonment, as follows:
a. In the case of a felony punishable by life, to a term of imprisonment
for life;
b. In the case of a felony of the first degree, to a term of
imprisonment of 30 years;
c. In the case of a felony of the second degree, to a term of
imprisonment of 15 years; or
d. In the case of a felony of the third degree, to a term of
imprisonment of 5 years.
2. Nothing in this subsection shall prevent a court from imposing a
greater sentence of incarceration as authorized by law.
(d) The court, in conformity with the procedure established in paragraph
(3)(c), shall sentence the violent career criminal as follows:
1. In the case of a life felony or a felony of the first degree, for
life.
2. In the case of a felony of the second degree, for a term of years not
exceeding 40, with a mandatory minimum term of 30 years' imprisonment.
3. In the case of a felony of the third degree, for a term of years not
exceeding 15, with a mandatory minimum term of 10 years' imprisonment.
(e) If the court finds, pursuant to paragraph (3)(a) or paragraph
(3)(c), that it is not necessary for the protection of the public to
sentence a defendant who meets the criteria for sentencing as a habitual
felony offender, a habitual violent felony offender, or a violent career
criminal, with respect to an offense committed on or after October 1,
1995, sentence shall be imposed without regard to this section.
(f) At any time when it appears to the court that the defendant is
eligible for sentencing under this section, the court shall make that
determination as provided in paragraph (3)(a), paragraph (3)(b), or
paragraph (3)(c).
(g) A sentence imposed under this section shall not be increased after
such imposition.
(h) A sentence imposed under this section is not subject to s. 921.002.
(i) The provisions of this section do not apply to capital felonies, and
a sentence authorized under this section does not preclude the
imposition of the death penalty for a capital felony.
(j) The provisions of s. 947.1405 shall apply to persons sentenced as
habitual felony offenders and persons sentenced as habitual violent
felony offenders.
(k)1. A defendant sentenced under this section as a habitual felony
offender, a habitual violent felony offender, or a violent career
criminal is eligible for gain-time granted by the Department of
Corrections as provided in s. 944.275(4)(b).
2. For an offense committed on or after October 1, 1995, a defendant
sentenced under this section as a violent career criminal is not
eligible for any form of discretionary early release, other than pardon
or executive clemency, or conditional medical release granted pursuant
to s. 947.149.
3. For an offense committed on or after July 1, 1999, a defendant
sentenced under this section as a three-time violent felony offender
shall be released only by expiration of sentence and shall not be
eligible for parole, control release, or any form of early release.
(5) In order to be counted as a prior felony for purposes of sentencing
under this section, the felony must have resulted in a conviction
sentenced separately prior to the current offense and sentenced
separately from any other felony conviction that is to be counted as a
prior felony.
(6) The purpose of this section is to provide uniform punishment for
those crimes made punishable under this section, and to this end, a
reference to this section constitutes a general reference under the
doctrine of incorporation by reference.
775.08401 Habitual offenders and habitual violent felony offenders;
violent career criminals; eligibility criteria.--
(1) The state attorney in each judicial circuit shall adopt uniform
criteria to be used when deciding to pursue:
(a) Habitual felony offender or habitual violent felony offender
sanctions; or
(b) With respect to an offense committed on or after October 1, 1995,
violent career criminal sanctions.
The criteria for each circuit shall be kept on file by the Florida
Prosecuting Attorneys Association, Inc.
(2) The criteria shall be designed to ensure fair and impartial
application of s. 775.084.
(3) A deviation from this criteria must be explained in writing, signed
by the state attorney, and placed in the case file maintained by the
state attorney.
(4) A deviation from the adopted criteria is not subject to appellate
review.
775.0841 Legislative findings and intent.--The Legislature finds
a substantial and disproportionate number of serious crimes are
committed in Florida by a relatively small number of repeat and violent
felony offenders, commonly known as career criminals. The Legislature
further finds that priority should be given to the investigation,
apprehension, and prosecution of career criminals in the use of law
enforcement resources and to the incarceration of career criminals in
the use of available prison space. The Legislature intends to initiate
and support increased efforts by state and local law enforcement
agencies and state attorneys' offices to investigate, apprehend, and
prosecute career criminals and to incarcerate them for extended terms;
and, in the case of violent career criminals, such extended terms must
include substantial mandatory minimum terms of imprisonment.
775.0842 Persons subject to career criminal prosecution efforts.--A
person who is under arrest for the commission, attempted commission, or
conspiracy to commit any felony in this state shall be the subject of
career criminal prosecution efforts provided that such person qualifies
as a habitual felony offender, a habitual violent felony offender, or a
violent career criminal, under s. 775.084.
775.0843 Policies to be adopted for career criminal cases.--
(1) Criminal justice agencies shall employ enhanced law enforcement
management efforts and resources for the investigation, apprehension,
and prosecution of career criminals. Each state attorney, sheriff, and
the police chief of each municipality shall provide for or participate
in a career criminal prosecution program to coordinate the efforts
contemplated by this section and ss. 775.0841 and 775.0842. Enhanced law
enforcement efforts and resources include, but are not limited to:
(a) Assignment of highly qualified investigators and prosecutors to
career criminal cases.
(b) Significant reduction of caseloads for investigators and prosecutors
assigned to career criminal cases.
(c) Coordination with federal, state, and local criminal justice
agencies to facilitate the collection and dissemination of criminal
investigative and intelligence information relating to those persons
meeting the criteria of a career criminal.
(2) Each state attorney's office shall establish a career criminal
prosecution unit and adopt and implement policies based on the following
guidelines:
(a) All reasonable prosecutorial efforts shall be made to resist the
pretrial release of a charged defendant meeting career criminal
criteria.
(b) A plea of guilty or a trial conviction shall be sought on each
offense charged in the accusatory pleadings against an individual
meeting career criminal criteria.
(c) All reasonable prosecutorial efforts shall be made to reduce the
time between arrest and disposition of charges against an individual
meeting career criminal criteria.
(d) All reasonable prosecutorial efforts shall be made to persuade the
court to impose the most severe sanction authorized upon a person
convicted after prosecution as a career criminal.
(3) This section does not prohibit a plea agreement in the interest of
justice when there are codefendants and the prosecuting attorney
determines that the information or testimony of the defendant making the
agreement is necessary for the conviction of one or more of the other
codefendants. The court may condition its acceptance of such plea
agreement on the provision of such information or testimony by such
defendant.
(4) Law enforcement agencies shall employ enhanced law enforcement
management efforts and resources in the investigation, apprehension, and
prosecution of career criminals. Enhanced law enforcement efforts and
resources include, but are not limited to:
(a) Crime analysis, consisting of the timely collection and study of
local crime data to:
1. Identify evolving or existing crime patterns involving career
criminals.
2. Provide investigative leads.
3. Isolate and identify geographical areas or population groups
experiencing severe crime problems in order to improve crime prevention
efforts.
4. Provide supporting data for improved allocation of overall law
enforcement agency resources.
(b) Improved management of investigative operations involving use of
information resulting from crime analysis, which may include
participation in multijurisdictional investigative and mutual-aid units
and measures to increase continuity of investigative efforts from the
initial response through the arrest and prosecution of the offender.
(5) Each career criminal apprehension program shall concentrate on the
identification and arrest of career criminals and the support of
subsequent prosecution. The determination of which suspected felony
offenders shall be the subject of career criminal apprehension efforts
shall be made in accordance with written target selection criteria
selected by the individual law enforcement agency and state attorney
consistent with the provisions of this section and ss. 775.08401 and
775.0842.
(6) Each career criminal apprehension program, as one of its functions,
shall maintain coordination with the prosecutor assigned to each case
resulting from its efforts. This coordination shall include, but is not
limited to, case preparation, processing, and adjudication.
775.08435 Prohibition on withholding adjudication in felony cases.--
(1) Notwithstanding the provisions of s. 948.01, the court may not
withhold adjudication of guilt upon the defendant for:
(a) Any capital, life, or first degree felony offense.
(b) A second degree felony offense unless:
1. The state attorney requests in writing that adjudication be withheld;
or
2. The court makes written findings that the withholding of adjudication
is reasonably justified based on circumstances or factors in accordance
with those set forth in s. 921.0026.
Notwithstanding any provision of this section, no adjudication of guilt
shall be withheld for a second degree felony offense if the defendant
has a prior withholding of adjudication for a felony that did not arise
from the same transaction as the current felony offense.
(c) A third degree felony offense if the defendant has a prior
withholding of adjudication for a felony offense that did not arise from
the same transaction as the current felony offense unless:
1. The state attorney requests in writing that adjudication be withheld;
or
2. The court makes written findings that the withholding of adjudication
is reasonably justified based on circumstances or factors in accordance
with those set forth in s. 921.0026.
Notwithstanding any provision of this section, no adjudication of guilt
shall be withheld for a third degree felony offense if the defendant has
two or more prior withholdings of adjudication for a felony that did not
arise from the same transaction as the current felony offense.
(2) This section does not apply to any adjudication or withholding of
adjudication under chapter 985.
(3) The withholding of adjudication in violation of this section is
subject to appellate review under chapter 924.
775.0844 White Collar Crime Victim Protection Act.--
(1) This section may be cited as the "White Collar Crime Victim
Protection Act."
(2) Due to the frequency with which victims, particularly elderly
victims, are deceived and cheated by criminals who commit nonviolent
frauds and swindles, frequently through the use of the Internet and
other electronic technology and frequently causing the loss of
substantial amounts of property, it is the intent of the Legislature to
enhance the sanctions imposed for nonviolent frauds and swindles,
protect the public's property, and assist in prosecuting white collar
criminals.
(3) As used in this section, "white collar crime" means:
(a) The commission of, or a conspiracy to commit, any felony offense
specified in:
1. Chapter 560, relating to the Money Transmitters' Code.
2. Chapter 812, relating to theft, robbery, and related crimes.
3. Chapter 815, relating to computer-related crimes.
4. Chapter 817, relating to fraudulent practices.
5. Chapter 825, relating to abuse, neglect, and exploitation of elderly
persons and disabled adults.
6. Chapter 831, relating to forgery and counterfeiting.
7. Chapter 832, relating to the issuance of worthless checks and drafts.
8. Chapter 838, relating to bribery and misuse of public office.
9. Chapter 839, relating to offenses by public officers and employees.
10. Chapter 895, relating to offenses concerning racketeering and
illegal debts.
11. Chapter 896, relating to offenses related to financial transactions.
(b) A felony offense that is committed with intent to defraud or that
involves a conspiracy to defraud.
(c) A felony offense that is committed with intent to temporarily or
permanently deprive a person of his or her property or that involves a
conspiracy to temporarily or permanently deprive a person of his or her
property.
(d) A felony offense that involves or results in the commission of fraud
or deceit upon a person or that involves a conspiracy to commit fraud or
deceit upon a person.
(4) As used in this section, "aggravated white collar crime" means
engaging in at least two white collar crimes that have the same or
similar intents, results, accomplices, victims, or methods of
commission, or that are otherwise interrelated by distinguishing
characteristics and are not isolated incidents, provided that at least
one of such crimes occurred after the effective date of this act.
(5) Any person who commits an aggravated white collar crime as defined
in this section and in so doing either:
(a) Victimizes 10 or more elderly persons, as defined in s. 825.101(5);
(b) Victimizes 20 or more persons, as defined in s. 1.01; or
(c) Victimizes the State of Florida, any state agency, any of the
state's political subdivisions, or any agency of the state's political
subdivisions,
and thereby obtains or attempts to obtain $50,000 or more, commits a
felony of the first degree, punishable as provided in s. 775.082, s.
775.083, or s. 775.084.
(6) Notwithstanding any other provision of chapter 921 or any other law,
an aggravated white collar crime shall be ranked within the offense
severity ranking chart at offense severity level 9.
(7) In addition to a sentence otherwise authorized by law, a person
convicted of an aggravated white collar crime may pay a fine of $500,000
or double the value of the pecuniary gain or loss, whichever is greater.
(8) A person convicted of an aggravated white collar crime under this
section is liable for all court costs and shall pay restitution to each
victim of the crime, regardless of whether the victim is named in the
information or indictment. As used in this subsection, "victim" means a
person directly and proximately harmed as a result of the commission of
the offense for which restitution may be ordered, including any person
directly harmed by the defendant's criminal conduct in the course of the
commission of the aggravated white collar crime. The court shall hold a
hearing to determine the identity of qualifying victims and shall order
the defendant to pay restitution based on his or her ability to pay, in
accordance with this section and s. 775.089.
(a) The court shall make the payment of restitution a condition of any
probation granted to the defendant by the court. Notwithstanding any
other law, the court may order continued probation for a defendant
convicted under this section for up to 10 years or until full
restitution is made to the victim, whichever occurs earlier.
(b) The court retains jurisdiction to enforce its order to pay fines or
restitution. The court may initiate proceedings against a defendant for
a violation of probation or for contempt of court if the defendant
willfully fails to comply with a lawful order of the court.
775.0845 Wearing mask while committing offense; reclassification.--The
felony or misdemeanor degree of any criminal offense, other than a
violation of ss. 876.12-876.15, shall be reclassified to the next higher
degree as provided in this section if, while committing the offense, the
offender was wearing a hood, mask, or other device that concealed his or
her identity.
(1)(a) In the case of a misdemeanor of the second degree, the offense is
reclassified to a misdemeanor of the first degree.
(b) In the case of a misdemeanor of the first degree, the offense is
reclassified to a felony of the third degree. For purposes of sentencing
under chapter 921 and determining incentive gain-time eligibility under
chapter 944, such offense is ranked in level 2 of the offense severity
ranking chart.
(2)(a) In the case of a felony of the third degree, the offense is
reclassified to a felony of the second degree.
(b) In the case of a felony of the second degree, the offense is
reclassified to a felony of the first degree.
For purposes of sentencing under chapter 921 and determining incentive
gain-time eligibility under chapter 944, a felony offense that is
reclassified under this subsection is ranked one level above the ranking
under s. 921.0012, s. 921.0013, s. 921.0022, or s. 921.0023 of the
offense committed.
775.0846 Wearing bulletproof vest while committing certain
offenses.--
(1) For the purposes of this section, the term "bulletproof vest" means
a bullet-resistant soft body armor providing, as a minimum standard, the
level of protection known as "threat level I," which shall mean at least
seven layers of bullet-resistant material providing protection from
three shots of 158-grain lead ammunition fired from a .38 caliber
handgun at a velocity of 850 feet per second.
(2) A person is guilty of the unlawful wearing of a bulletproof vest
when, acting alone or with one or more other persons and while
possessing a firearm, he or she commits or attempts to commit any
murder, sexual battery, robbery, burglary, arson, aggravated assault,
aggravated battery, kidnapping, escape, breaking and entering with
intent to commit a felony, or aircraft piracy and, in the course of and
in furtherance of any such crime, he or she wears a bulletproof vest.
(3) Any person who is convicted of a violation of this section is guilty
of a felony of the third degree, punishable as provided in s. 775.082,
s. 775.083, or s. 775.084.
775.0849 Public service announcements; ch. 99-188.--In order to
inform the public and to deter and prevent crime in the state, the
Executive Office of the Governor shall place public service
announcements in visible local media throughout the state explaining the
penalties provided in chapter 99-188, Laws of Florida.
775.085 Evidencing prejudice while committing offense;
reclassification.--
(1)(a) The penalty for any felony or misdemeanor shall be reclassified
as provided in this subsection if the commission of such felony or
misdemeanor evidences prejudice based on the race, color, ancestry,
ethnicity, religion, sexual orientation, national origin, mental or
physical disability, or advanced age of the victim:
1. A misdemeanor of the second degree is reclassified to a misdemeanor
of the first degree.
2. A misdemeanor of the first degree is reclassified to a felony of the
third degree.
3. A felony of the third degree is reclassified to a felony of the
second degree.
4. A felony of the second degree is reclassified to a felony of the
first degree.
5. A felony of the first degree is reclassified to a life felony.
(b) As used in paragraph (a), the term:
1. "Mental or physical disability" means that the victim suffers from a
condition of physical or mental incapacitation due to a developmental
disability, organic brain damage, or mental illness, and has one or more
physical or mental limitations that restrict the victim's ability to
perform the normal activities of daily living.
2. "Advanced age" means that the victim is older than 65 years of age.
(2) A person or organization that establishes by clear and convincing
evidence that it has been coerced, intimidated, or threatened in
violation of this section has a civil cause of action for treble
damages, an injunction, or any other appropriate relief in law or in
equity. Upon prevailing in such civil action, the plaintiff may recover
reasonable attorney's fees and costs.
(3) It is an essential element of this section that the record reflect
that the defendant perceived, knew, or had reasonable grounds to know or
perceive that the victim was within the class delineated in this
section.
775.0861 Offenses against persons on the grounds of religious
institutions; reclassification.--
(1) For purposes of this section, the term:
(a) "Religious institution" is as defined in s. 496.404.
(b) "Religious service" is a religious ceremony, prayer, or other
activity according to a form and order prescribed for worship, including
a service related to a particular occasion.
(2) The felony or misdemeanor degree of any violation of:
(a) Section 784.011, relating to assault;
(b) Section 784.021, relating to aggravated assault;
(c) Section 784.03, relating to battery;
(d) Section 784.041, relating to felony battery;
(e) A statute defining any offense listed in s. 775.084(1)(b)1.; or
(f) Any other statute defining an offense that involves the use or
threat of physical force or violence against any individual
shall be reclassified as provided in this section if the offense is
committed on the property of a religious institution while the victim is
on the property for the purpose of participating in or attending a
religious service.
(3)(a) In the case of a misdemeanor of the second degree, the offense is
reclassified to a misdemeanor of the first degree.
(b) In the case of a misdemeanor of the first degree, the offense is
reclassified to a felony of the third degree. For purposes of sentencing
under chapter 921, such offense is ranked in level 2 of the offense
severity ranking chart.
(c) In the case of a felony of the third degree, the offense is
reclassified to a felony of the second degree.
(d) In the case of a felony of the second degree, the offense is
reclassified to a felony of the first degree.
(e) In the case of a felony of the first degree, the offense is
reclassified to a life felony.
For purposes of sentencing under chapter 921 and determining incentive
gain-time eligibility under chapter 944, a felony offense that is
reclassified under this subsection is ranked one level above the ranking
under s. 921.0022 or s. 921.0023 of the offense committed.
1Note.--Section 4, ch. 2005-77, provides that "[t]his act shall take
effect July 1, 2005, and shall apply to offenses committed on or after
that date."
775.087 Possession or use of weapon; aggravated battery; felony
reclassification; minimum sentence.--
(1) Unless otherwise provided by law, whenever a person is charged with
a felony, except a felony in which the use of a weapon or firearm is an
essential element, and during the commission of such felony the
defendant carries, displays, uses, threatens to use, or attempts to use
any weapon or firearm, or during the commission of such felony the
defendant commits an aggravated battery, the felony for which the person
is charged shall be reclassified as follows:
(a) In the case of a felony of the first degree, to a life felony.
(b) In the case of a felony of the second degree, to a felony of the
first degree.
(c) In the case of a felony of the third degree, to a felony of the
second degree.
For purposes of sentencing under chapter 921 and determining incentive
gain-time eligibility under chapter 944, a felony offense which is
reclassified under this section is ranked one level above the ranking
under s. 921.0022 or s. 921.0023 of the felony offense committed.
(2)(a)1. Any person who is convicted of a felony or an attempt to commit
a felony, regardless of whether the use of a weapon is an element of the
felony, and the conviction was for:
a. Murder;
b. Sexual battery;
c. Robbery;
d. Burglary;
e. Arson;
f. Aggravated assault;
g. Aggravated battery;
h. Kidnapping;
i. Escape;
j. Aircraft piracy;
k. Aggravated child abuse;
l. Aggravated abuse of an elderly person or disabled adult;
m. Unlawful throwing, placing, or discharging of a destructive device or
bomb;
n. Carjacking;
o. Home-invasion robbery;
p. Aggravated stalking;
q. Trafficking in cannabis, trafficking in cocaine, capital importation
of cocaine, trafficking in illegal drugs, capital importation of illegal
drugs, trafficking in phencyclidine, capital importation of
phencyclidine, trafficking in methaqualone, capital importation of
methaqualone, trafficking in amphetamine, capital importation of
amphetamine, trafficking in flunitrazepam, trafficking in gamma-hydroxybutyric
acid (GHB), trafficking in 1,4-Butanediol, trafficking in
Phenethylamines, or other violation of s. 893.135(1); or
r. Possession of a firearm by a felon
and during the commission of the offense, such person actually possessed
a "firearm" or "destructive device" as those terms are defined in s.
790.001, shall be sentenced to a minimum term of imprisonment of 10
years, except that a person who is convicted for aggravated assault,
possession of a firearm by a felon, or burglary of a conveyance shall be
sentenced to a minimum term of imprisonment of 3 years if such person
possessed a "firearm" or "destructive device" during the commission of
the offense.
2. Any person who is convicted of a felony or an attempt to commit a
felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the
use of a weapon is an element of the felony, and during the course of
the commission of the felony such person discharged a "firearm" or
"destructive device" as defined in s. 790.001 shall be sentenced to a
minimum term of imprisonment of 20 years.
3. Any person who is convicted of a felony or an attempt to commit a
felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the
use of a weapon is an element of the felony, and during the course of
the commission of the felony such person discharged a "firearm" or
"destructive device" as defined in s. 790.001 and, as the result of the
discharge, death or great bodily harm was inflicted upon any person, the
convicted person shall be sentenced to a minimum term of imprisonment of
not less than 25 years and not more than a term of imprisonment of life
in prison.
(b) Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3. does
not prevent a court from imposing a longer sentence of incarceration as
authorized by law in addition to the minimum mandatory sentence, or from
imposing a sentence of death pursuant to other applicable law.
Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3. does not
authorize a court to impose a lesser sentence than otherwise required by
law.
Notwithstanding s. 948.01, adjudication of guilt or imposition of
sentence shall not be suspended, deferred, or withheld, and the
defendant is not eligible for statutory gain-time under s. 944.275 or
any form of discretionary early release, other than pardon or executive
clemency, or conditional medical release under s. 947.149, prior to
serving the minimum sentence.
(c) If the minimum mandatory terms of imprisonment imposed pursuant to
this section exceed the maximum sentences authorized by s. 775.082, s.
775.084, or the Criminal Punishment Code under chapter 921, then the
mandatory minimum sentence must be imposed. If the mandatory minimum
terms of imprisonment pursuant to this section are less than the
sentences that could be imposed as authorized by s. 775.082, s. 775.084,
or the Criminal Punishment Code under chapter 921, then the sentence
imposed by the court must include the mandatory minimum term of
imprisonment as required in this section.
(d) It is the intent of the Legislature that offenders who actually
possess, carry, display, use, threaten to use, or attempt to use
firearms or destructive devices be punished to the fullest extent of the
law, and the minimum terms of imprisonment imposed pursuant to this
subsection shall be imposed for each qualifying felony count for which
the person is convicted. The court shall impose any term of imprisonment
provided for in this subsection consecutively to any other term of
imprisonment imposed for any other felony offense.
(3)(a)1. Any person who is convicted of a felony or an attempt to commit
a felony, regardless of whether the use of a firearm is an element of
the felony, and the conviction was for:
a. Murder;
b. Sexual battery;
c. Robbery;
d. Burglary;
e. Arson;
f. Aggravated assault;
g. Aggravated battery;
h. Kidnapping;
i. Escape;
j. Sale, manufacture, delivery, or intent to sell, manufacture, or
deliver any controlled substance;
k. Aircraft piracy;
l. Aggravated child abuse;
m. Aggravated abuse of an elderly person or disabled adult;
n. Unlawful throwing, placing, or discharging of a destructive device or
bomb;
o. Carjacking;
p. Home-invasion robbery;
q. Aggravated stalking; or
r. Trafficking in cannabis, trafficking in cocaine, capital importation
of cocaine, trafficking in illegal drugs, capital importation of illegal
drugs, trafficking in phencyclidine, capital importation of
phencyclidine, trafficking in methaqualone, capital importation of
methaqualone, trafficking in amphetamine, capital importation of
amphetamine, trafficking in flunitrazepam, trafficking in gamma-hydroxybutyric
acid (GHB), trafficking in 1,4-Butanediol, trafficking in
Phenethylamines, or other violation of s. 893.135(1);
and during the commission of the offense, such person possessed a
semiautomatic firearm and its high-capacity detachable box magazine or a
machine gun as defined in s. 790.001, shall be sentenced to a minimum
term of imprisonment of 15 years.
2. Any person who is convicted of a felony or an attempt to commit a
felony listed in subparagraph (a)1., regardless of whether the use of a
weapon is an element of the felony, and during the course of the
commission of the felony such person discharged a semiautomatic firearm
and its high-capacity box magazine or a "machine gun" as defined in s.
790.001 shall be sentenced to a minimum term of imprisonment of 20
years.
3. Any person who is convicted of a felony or an attempt to commit a
felony listed in subparagraph (a)1., regardless of whether the use of a
weapon is an element of the felony, and during the course of the
commission of the felony such person discharged a semiautomatic firearm
and its high-capacity box magazine or a "machine gun" as defined in s.
790.001 and, as the result of the discharge, death or great bodily harm
was inflicted upon any person, the convicted person shall be sentenced
to a minimum term of imprisonment of not less than 25 years and not more
than a term of imprisonment of life in prison.
(b) Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3. does
not prevent a court from imposing a longer sentence of incarceration as
authorized by law in addition to the minimum mandatory sentence, or from
imposing a sentence of death pursuant to other applicable law.
Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3. does not
authorize a court to impose a lesser sentence than otherwise required by
law.
Notwithstanding s. 948.01, adjudication of guilt or imposition of
sentence shall not be suspended, deferred, or withheld, and the
defendant is not eligible for statutory gain-time under s. 944.275 or
any form of discretionary early release, other than pardon or executive
clemency, or conditional medical release under s. 947.149, prior to
serving the minimum sentence.
(c) If the minimum mandatory terms of imprisonment imposed pursuant to
this section exceed the maximum sentences authorized by s. 775.082, s.
775.084, or the Criminal Punishment Code under chapter 921, then the
mandatory minimum sentence must be imposed. If the mandatory minimum
terms of imprisonment pursuant to this section are less than the
sentences that could be imposed as authorized by s. 775.082, s. 775.084,
or the Criminal Punishment Code under chapter 921, then the sentence
imposed by the court must include the mandatory minimum term of
imprisonment as required in this section.
(d) It is the intent of the Legislature that offenders who possess,
carry, display, use, threaten to use, or attempt to use a semiautomatic
firearm and its high-capacity detachable box magazine or a machine gun
as defined in s. 790.001 be punished to the fullest extent of the law,
and the minimum terms of imprisonment imposed pursuant to this
subsection shall be imposed for each qualifying felony count for which
the person is convicted. The court shall impose any term of imprisonment
provided for in this subsection consecutively to any other term of
imprisonment imposed for any other felony offense.
(e) As used in this subsection, the term:
1. "High-capacity detachable box magazine" means any detachable box
magazine, for use in a semiautomatic firearm, which is capable of being
loaded with more than 20 centerfire cartridges.
2. "Semiautomatic firearm" means a firearm which is capable of firing a
series of rounds by separate successive depressions of the trigger and
which uses the energy of discharge to perform a portion of the operating
cycle.
(4) For purposes of imposition of minimum mandatory sentencing
provisions of this section, with respect to a firearm, the term
"possession" is defined as carrying it on the person. Possession may
also be proven by demonstrating that the defendant had the firearm
within immediate physical reach with ready access with the intent to use
the firearm during the commission of the offense, if proven beyond a
reasonable doubt.
(5) In every case in which a law enforcement agency based a criminal
charge on facts demonstrating that the defendant met the criteria in
subparagraph (2)(a)1., subparagraph (2)(a)2., or subparagraph (2)(a)3.
or subparagraph (3)(a)1., subparagraph (3)(a)2., or subparagraph
(3)(a)3. and in which the defendant did not receive the mandatory
penalty, the state attorney must place in the court file a memorandum
explaining why the minimum mandatory penalty was not imposed.
(6) This section does not apply to law enforcement officers or to United
States military personnel who are performing their lawful duties or who
are traveling to or from their places of employment or assignment to
perform their lawful duties.
1Note.--Section 25, ch. 2005-128, provides that "[t]his act shall take
effect July 1, 2005, and shall apply to offenses committed on or after
that date."
775.0871 Public service announcements.--In order to inform the
public and to deter and prevent crime, the Office of the Governor shall
place public service announcements in areas having the highest
representation in the correctional system explaining the penalties
provided in this act. In addition, the Office of the Governor shall
place public service announcements directed to areas of the state which
have the highest rate of firearms-related offenses to maximize the
preventative aspects of advertising the penalties imposed by this act.
775.0875 Unlawful taking, possession, or use of law enforcement
officer's firearm; crime reclassification; penalties.--
(1) A person who, without authorization, takes a firearm from a law
enforcement officer lawfully engaged in law enforcement duties commits a
felony of the third degree, punishable as provided in s. 775.082, s.
775.083, or s. 775.084.
(2) If a person violates subsection (1) and commits any other crime
involving the firearm taken from the law enforcement officer, such crime
shall be reclassified as follows:
(a)1. In the case of a felony of the first degree, to a life felony.
2. In the case of a felony of the second degree, to a felony of the
first degree.
3. In the case of a felony of the third degree, to a felony of the
second degree.
For purposes of sentencing under chapter 921 and determining incentive
gain-time eligibility under chapter 944, a felony offense that is
reclassified under this paragraph is ranked one level above the ranking
under s. 921.0022 or s. 921.0023 of the felony offense committed.
(b) In the case of a misdemeanor, to a felony of the third degree. For
purposes of sentencing under chapter 921 and determining incentive
gain-time eligibility under chapter 944, such offense is ranked in level
2 of the offense severity ranking chart.
(3) A person who possesses a firearm that he or she knows was unlawfully
taken from a law enforcement officer commits a misdemeanor of the first
degree, punishable as provided in s. 775.082 or s. 775.083.
775.0877 Criminal transmission of HIV; procedures; penalties.--
(1) In any case in which a person has been convicted of or has pled nolo
contendere or guilty to, regardless of whether adjudication is withheld,
any of the following offenses, or the attempt thereof, which offense or
attempted offense involves the transmission of body fluids from one
person to another:
(a) Section 794.011, relating to sexual battery,
(b) Section 826.04, relating to incest,
(c) 1Section 800.04(1), (2), and (3), relating to lewd, lascivious, or
indecent assault or act upon any person less than 16 years of age,
(d) Sections 784.011, 784.07(2)(a), and 784.08(2)(d), relating to
assault,
(e) Sections 784.021, 784.07(2)(c), and 784.08(2)(b), relating to
aggravated assault,
(f) Sections 784.03, 784.07(2)(b), and 784.08(2)(c), relating to
battery,
(g) Sections 784.045, 784.07(2)(d), and 784.08(2)(a), relating to
aggravated battery,
(h) Section 827.03(1), relating to child abuse,
(i) Section 827.03(2), relating to aggravated child abuse,
(j) Section 825.102(1), relating to abuse of an elderly person or
disabled adult,
(k) Section 825.102(2), relating to aggravated abuse of an elderly
person or disabled adult,
(l) Section 827.071, relating to sexual performance by person less than
18 years of age,
(m) Sections 796.03, 796.07, and 796.08, relating to prostitution, or
(n) Section 381.0041(11)(b), relating to donation of blood, plasma,
organs, skin, or other human tissue,
the court shall order the offender to undergo HIV testing, to be
performed under the direction of the Department of Health in accordance
with s. 381.004, unless the offender has undergone HIV testing
voluntarily or pursuant to procedures established in s. 381.004(3)(h)6.
or s. 951.27, or any other applicable law or rule providing for HIV
testing of criminal offenders or inmates, subsequent to her or his
arrest for an offense enumerated in paragraphs (a)-(n) for which she or
he was convicted or to which she or he pled nolo contendere or guilty.
The results of an HIV test performed on an offender pursuant to this
subsection are not admissible in any criminal proceeding arising out of
the alleged offense.
(2) The results of the HIV test must be disclosed under the direction of
the Department of Health, to the offender who has been convicted of or
pled nolo contendere or guilty to an offense specified in subsection
(1), the public health agency of the county in which the conviction
occurred and, if different, the county of residence of the offender,
and, upon request pursuant to s. 960.003, to the victim or the victim's
legal guardian, or the parent or legal guardian of the victim if the
victim is a minor.
(3) An offender who has undergone HIV testing pursuant to subsection
(1), and to whom positive test results have been disclosed pursuant to
subsection (2), who commits a second or subsequent offense enumerated in
paragraphs (1)(a)-(n), commits criminal transmission of HIV, a felony of
the third degree, punishable as provided in subsection (7). A person may
be convicted and sentenced separately for a violation of this subsection
and for the underlying crime enumerated in paragraphs (1)(a)-(n).
(4) An offender may challenge the positive results of an HIV test
performed pursuant to this section and may introduce results of a backup
test performed at her or his own expense.
(5) Nothing in this section requires that an HIV infection have occurred
in order for an offender to have committed criminal transmission of HIV.
(6) For an alleged violation of any offense enumerated in paragraphs
(1)(a)-(n) for which the consent of the victim may be raised as a
defense in a criminal prosecution, it is an affirmative defense to a
charge of violating this section that the person exposed knew that the
offender was infected with HIV, knew that the action being taken could
result in transmission of the HIV infection, and consented to the action
voluntarily with that knowledge.
(7) In addition to any other penalty provided by law for an offense
enumerated in paragraphs (1)(a)-(n), the court may require an offender
convicted of criminal transmission of HIV to serve a term of criminal
quarantine community control, as described in s. 948.001.
775.089 Restitution.--
(1)(a) In addition to any punishment, the court shall order the
defendant to make restitution to the victim for:
1. Damage or loss caused directly or indirectly by the defendant's
offense; and
2. Damage or loss related to the defendant's criminal episode,
unless it finds clear and compelling reasons not to order such
restitution. Restitution may be monetary or nonmonetary restitution. The
court shall make the payment of restitution a condition of probation in
accordance with s. 948.03. An order requiring the defendant to make
restitution to a victim does not remove or diminish the requirement that
the court order payment to the Crimes Compensation Trust Fund pursuant
to chapter 960. Payment of an award by the Crimes Compensation Trust
Fund shall create an order of restitution to the Crimes Compensation
Trust Fund, unless specifically waived in accordance with subparagraph
(b)1.
(b)1. If the court does not order restitution, or orders restitution of
only a portion of the damages, as provided in this section, it shall
state on the record in detail the reasons therefor.
2. An order of restitution entered as part of a plea agreement is as
definitive and binding as any other order of restitution, and a
statement to such effect must be made part of the plea agreement. A plea
agreement may contain provisions that order restitution relating to
criminal offenses committed by the defendant to which the defendant did
not specifically enter a plea.
(c) The term "victim" as used in this section and in any provision of
law relating to restitution means each person who suffers property
damage or loss, monetary expense, or physical injury or death as a
direct or indirect result of the defendant's offense or criminal
episode, and also includes the victim's estate if the victim is
deceased, and the victim's next of kin if the victim is deceased as a
result of the offense.
(2)(a) When an offense has resulted in bodily injury to a victim, a
restitution order entered under subsection (1) shall require that the
defendant:
1. Pay the cost of necessary medical and related professional services
and devices relating to physical, psychiatric, and psychological care,
including nonmedical care and treatment rendered in accordance with a
recognized method of healing.
2. Pay the cost of necessary physical and occupational therapy and
rehabilitation.
3. Reimburse the victim for income lost by the victim as a result of the
offense.
4. In the case of an offense which resulted in bodily injury that also
resulted in the death of a victim, pay an amount equal to the cost of
necessary funeral and related services.
(b) When an offense has not resulted in bodily injury to a victim, a
restitution order entered under subsection (1) may require that the
defendant reimburse the victim for income lost by the victim as a result
of the offense.
(3)(a) The court may require that the defendant make restitution under
this section within a specified period or in specified installments.
(b) The end of such period or the last such installment shall not be
later than:
1. The end of the period of probation if probation is ordered;
2. Five years after the end of the term of imprisonment imposed if the
court does not order probation; or
3. Five years after the date of sentencing in any other case.
(c) Notwithstanding this subsection, a court that has ordered
restitution for a misdemeanor offense shall retain jurisdiction for the
purpose of enforcing the restitution order for any period, not to exceed
5 years, that is pronounced by the court at the time restitution is
ordered.
(d) If not otherwise provided by the court under this subsection,
restitution must be made immediately.
If the restitution ordered by the court is not made within the time
period specified, the court may continue the restitution order through
the duration of the civil judgment provision set forth in subsection (5)
and as provided in s. 55.10.
(4) If a defendant is placed on probation or paroled, complete
satisfaction of any restitution ordered under this section shall be a
condition of such probation or parole. The court may revoke probation,
and the Parole Commission may revoke parole, if the defendant fails to
comply with such order.
(5) An order of restitution may be enforced by the state, or by a victim
named in the order to receive the restitution, in the same manner as a
judgment in a civil action. The outstanding unpaid amount of the order
of restitution bears interest in accordance with s. 55.03, and, when
properly recorded, becomes a lien on real estate owned by the defendant.
If civil enforcement is necessary, the defendant shall be liable for
costs and attorney's fees incurred by the victim in enforcing the order.
(6)(a) The court, in determining whether to order restitution and the
amount of such restitution, shall consider the amount of the loss
sustained by any victim as a result of the offense.
(b) The criminal court, at the time of enforcement of the restitution
order, shall consider the financial resources of the defendant, the
present and potential future financial needs and earning ability of the
defendant and his or her dependents, and such other factors which it
deems appropriate.
(7) Any dispute as to the proper amount or type of restitution shall be
resolved by the court by the preponderance of the evidence. The burden
of demonstrating the amount of the loss sustained by a victim as a
result of the offense is on the state attorney. The burden of
demonstrating the present financial resources and the absence of
potential future financial resources of the defendant and the financial
needs of the defendant and his or her dependents is on the defendant.
The burden of demonstrating such other matters as the court deems
appropriate is upon the party designated by the court as justice
requires.
(8) The conviction of a defendant for an offense involving the act
giving rise to restitution under this section shall estop the defendant
from denying the essential allegations of that offense in any subsequent
civil proceeding. An order of restitution hereunder will not bar any
subsequent civil remedy or recovery, but the amount of such restitution
shall be set off against any subsequent independent civil recovery.
(9) When a corporation or unincorporated association is ordered to make
restitution, the person authorized to make disbursements from the assets
of such corporation or association shall pay restitution from such
assets, and such person may be held in contempt for failure to make such
restitution.
(10)(a) Any default in payment of restitution may be collected by any
means authorized by law for enforcement of a judgment.
(b) The restitution obligation is not subject to discharge in
bankruptcy, whether voluntary or involuntary, or to any other statutory
or common-law proceeding for relief against creditors.
(11)(a) The court may order the clerk of the court to collect and
dispense restitution payments in any case.
(b) The court may order the Department of Corrections to collect and
dispense restitution and other payments from persons remanded to its
custody or supervision.
(12)(a) Issuance of income deduction order with an order for
restitution.--
1. Upon the entry of an order for restitution, the court shall enter a
separate order for income deduction if one has not been entered.
2. The income deduction order shall direct a payor to deduct from all
income due and payable to the defendant the amount required by the court
to meet the defendant's obligation.
3. The income deduction order shall be effective so long as the order
for restitution upon which it is based is effective or until further
order of the court.
4. When the court orders the income deduction, the court shall furnish
to the defendant a statement of his or her rights, remedies, and duties
in regard to the income deduction order. The statement shall state:
a. All fees or interest which shall be imposed.
b. The total amount of income to be deducted for each pay period.
c. That the income deduction order applies to current and subsequent
payors and periods of employment.
d. That a copy of the income deduction order will be served on the
defendant's payor or payors.
e. That enforcement of the income deduction order may only be contested
on the ground of mistake of fact regarding the amount of restitution
owed.
f. That the defendant is required to notify the clerk of court within 7
days after changes in the defendant's address, payors, and the addresses
of his or her payors.
(b) Enforcement of income deduction orders.--
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