Career Criminal – A Label You DON’T Want

By Stephan Lopez Esq.,

 

Career Criminal Enhanced Sentencing—the past can truly come back to haunt you.

Under Florida Law, a “career criminal” can be punished more severely than a person who is not.[1]Many family members have asked me, “why is my family member being punished for their past?” My response is always the same: because the legislature has passed laws that allows for people to be punished more severely for their current crime if they have been convicted in the past of certain qualifying crimes.

So who is a Career Criminal? Florida Statute §775.084 provides the definitions for, and the enhanced penalties of career criminals. There are several classifications of career criminals: Violent Career Criminals; Habitual Felony Offenders; Habitual Violent Felony Offenders; and Three-time Violent Felony Offenders and Prison Releasee Reoffender.

The most common career criminal classification is as a “Habitual Felony Offender” (HO). What is an HO? An HO is a person who is previously convicted of at least two felonies.[2] The newest crime must be committed within five years of the end of the sentence of the last conviction. This is what make it habitual.

“Habitual Violent Felony Offender” (HVO), is a person who has previously been convicted of a felony or an attempt or conspiracy to commit a felony from the below list who is currently facing a second felony charge within five years of the end of the sentence for that crime.

Arson, Sexual Battery, Robbery, Kidnapping, Aggravated Child Abuse, Aggravated Elderly Abuse or Disabled Adult Abuse, Aggravated Assault with a Deadly Weapon, Murder, Manslaughter, Aggravated Manslaughter of an Elderly Person, Disabled Person, or Child, Unlawful Throwing, Placing, or Discharging of a Destructive Device or Bomb, Armed Burglary, Aggravated Battery, Aggravated Stalking.

Q&A How Career Criminal Enhancements Impact Sentencing

Question:   I pled no contest to a burglary case and a purchase of controlled substance case, more than 8 years ago, but I wasn’t convicted. I received a withhold of adjudication to both cases, and was sentenced on different dates, to probation for five years to run concurrently. I successfully completed probation three years ago. I was young and I learned my lesson. I have a good job and had stayed out of trouble until last week when I was charged with felony battery. I got into a fight with my ex’s new boyfriend and broke his nose, but he started the fight. Can I be sentenced as an HO if I get convicted of felony battery?

Answer: Yes, a withhold of adjudication plus probation or community control are convictions for purposes of career criminal sentencing. You were sentenced on separate dates to two felonies. Your release from probation occurred within 5 years of the current qualifying offense. Although the maximum you could receive for felony battery—a third degree felony is typically 5 years in prison, as an HO you could receive up to 10 years or double the maximum.

Question: When I was 18 years old I took a plea to Robbery as a Youthful Offender (YO). I received YO sanctions[3]: a withhold of adjudication, 364 days in the county jail followed by 4 years’ probation. I finished probation at 23, ironically, on my birthday. I am now turning 28 in two weeks and I have stayed out of trouble. However, I have been having issues with my child’s mother who won’t let see my kid. She got a restraining order and now she is charging me with one count of Aggravated Stalking. I just want to see my kid. Can I be sentenced as an HVO for a crime I committed when I was a YO?

Answer:  Yes. YO sentences count as qualifying convictions. Whitfield v. Singletary, 730 So.2d 314,315 (Fla. 3d DCA 1999), Weford v. State, 784 So.2d 1222(Fla. 3d DCA 2001). The withhold of adjudication does count as a conviction. Furthermore, you were released from probation less than 5 years from the date of this new crime. If the new crime had occurred after your birthday—the new case would fall outside the 5 year period, and then you could not be sentenced as an HVO.  As it stands, even though the new crime is a felony of the third degree punishable by a maximum term of incarceration of five years in prison, as an HVO you could be sentenced to 10 years with a minimum mandatory sentence (MM) of 5 years.

As you can see by the above chart, career criminal sentencing– as either an HO or HVO enhances the amount of time that you could be incarcerated if convicted.  If you are facing HO or HVO enhancement, you will need an experienced lawyer on your side.

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[1] While the statutory definition of Career Criminal Classification is the same throughout Florida, many State Attorney’s Offices use their own more lenient qualifications. However, whether to seek Career Criminal enhancements is dependent upon the case, the charges and that particular State Attorney’s Office.

[2] There are some exceptions as to what these felonies can and cannot be for. You may want to have a lawyer review the underlying crimes if you are facing a Career Criminal Enhanced Sentence and you are questioning whether you or your loved one meets the criteria.

[3] Pursuant to Florida Statute § 958.04, youthful offender sanctions are less severe.  The court may place a youthful offender under supervision on probation or in a community control program, with or without an adjudication of guilt, under such conditions as the court may lawfully impose for a period of not more than 6 years. A court may also impose a period of incarceration as a condition of probation or community control, which period of incarceration shall be served in a county facility, not to exceed 364 days. A youthful offender who is given a split sentence and is to serve a period of incarceration at a state facility cannot serve more than 4 years of incarceration.  See upcoming youthful offender article. SPECIAL NOTE: Because this area of the law is constantly changing, it is important not to rely exclusively on charts. Read Fla. Stat. §775.084 and consult with an experienced attorney for guidance.

Stephan Lopez is a former police officer and Miami-Dade prosecutor that provides legal representation that is both multi-faceted and knowledgeable to clients facing serious criminal charges.  Specifically, he focuses and assists clients in the areas of Criminal DefenseCivil Rights Claims, Family Law, Commercial and Civil Litigation, Business Counseling, Labor & Employment Law.

The firm also provides representation in the areas of:  Residential Landlord-Tenant LitigationCommercial Landlord-Tenant LitigationCall us for a FREE consultation at (305) 792-8221. Se Habla Español.

Visit our firm website crimlegal.com and review our credentials.

We are located at 10691 N. Kendall Dr. Suite 212 Miami, FL 33176 but have satellite offices in Little Havana and in Broward County.

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The Stephan Lopez Law Firm BLOG is intended to provide information to firm clients, friends and potential clients about various legal related topics. Nothing in this BLOG should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this BLOG without seeking the advice of legal counsel.

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