Florida Sentencing Blog

A discussion of contemporary law, policy, and practice in Florida criminal sentencing.

Violent Felony Offenders of Special Concern (VFOSC)

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In response to questions about Florida’s “Anti-Murder Act” and the creation of the designation “Violent Felony Offender of Special Concern,” or VFOSC, I am posting the following summary:

On March 8, 2007, the Florida legislature passed the “Anti-Murder Act,” which was signed into law by the Governor on March 12, 2007 as Chapter 2007-2, Laws of Florida. The Act amended section 948.06(4), F.S., to create six classes of “violent felony offender of special concern” (VFOSC). For purposes of sections 903.0351 (bail), 948.064 (notification), and 921.0024 (scoresheet), the term “violent felony offender of special concern” means a person who is on:

2. Felony probation or community control for any offense committed on or after March 12, 2007, and has previously been convicted of a qualifying offense. “Convicted” in this regard 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 imposed or withheld.

3. Felony probation or community control for any offense committed on or after March 12, 2007, and is found to have violated that probation or community control by committing a qualifying offense. Note that only a “finding,” and not a conviction, is required.

4. Felony probation or community control and has previously been found by a court to be a habitual violent felony offender as defined in section 775.084(1)(b), and has committed a qualifying offense on or after March 12, 2007.

5. Felony probation or community control and has previously been found by a court to be a three-time violent felony offender as defined in section 775.084(1)(c), and has committed a qualifying offense on or after March 12, 2007.

6. Felony probation or community control and has previously been found by a court to be a sexual predator under section 775.21, and has committed a qualifying offense on or after March 12, 2007.

For purposes of section 948.06, the term “qualifying offense” means any of the following:

1. Kidnapping or attempted kidnapping under section 787.01, false imprisonment of a child under the age of 13 under section 787.02(3), or luring or enticing a child under section 787.025(2)(b) or (c).

2. Murder or attempted murder under section 782.04, attempted felony murder under section 782.051, or manslaughter under section 782.07.

3. Aggravated battery or attempted aggravated battery under section 784.045.

4. Sexual battery or attempted sexual battery under section 794.011(2), (3), (4), or (8)(b) or (c).

5. Lewd or lascivious battery or attempted lewd or lascivious battery under section 800.04(4), lewd or lascivious molestation under section 800.04(5)(b) or (c)2., lewd or lascivious conduct under section 800.04(6)(b), or lewd or lascivious exhibition under section 800.04(7)(c).

6. Robbery or attempted robbery under section 812.13, carjacking or attempted carjacking under section 812.133, or home invasion robbery or attempted home invasion robbery under section 812.135.

7. Lewd or lascivious offense upon or in the presence of an elderly or disabled person or attempted lewd or lascivious offense upon or in the presence of an elderly or disabled person under section 825.1025.

8. Sexual performance by a child or attempted sexual performance by a child under section 827.071.

9. Computer pornography under section 847.0135(2) or (3), transmission of child pornography under section 847.0137, or selling or buying of minors under section 847.0145.

10. Poisoning food or water under section 859.01.

11. Abuse of a dead human body under section 872.06.

12. Any burglary offense or attempted burglary offense that is either a first-degree felony or second-degree felony under section 810.02(2) or (3).

13. Arson or attempted arson under section 806.01(1).

14. Aggravated assault under section 784.021.

15. Aggravated stalking under section 784.048(3), (4), (5), or (7).

16. Aircraft piracy under section 860.16.

17. Unlawful throwing, placing, or discharging of a destructive device or bomb under section 790.161(2), (3), or (4).

18. Treason under section 876.32.

19. Any offense committed in another jurisdiction which would be an offense listed in this paragraph if that offense had been committed in this state.

In the case of an alleged violation of probation or community control other than a failure to pay costs, fines, or restitution, the act provides that the following individuals shall not be released and shall not be admitted bail, but shall be brought before the court that granted the probation or community control and remain in custody pending the resolution of the probation or community control violation:

1. A VFOSC, as defined in section 948.06(8), F.S.;

2. A person who is on felony probation or community control for any offense committed on or after the effective date of this act and who is arrested for a VFOSC qualifying offense; or

3. A person who is on felony probation or community control and has previously been found by a court to be a habitual violent felony offender as defined in section 775.084(1)(b), a three-time violent felony offender as defined in section 775.084(1)(c), or a sexual predator under section 775.21, and who is arrested for committing a VFOSC qualifying offense on or after the effective date of this act.

This means that a defendant described in paragraphs 1-3, supra, cannot be given bail under any circumstances until the VOP or VOCC is resolved, notwithstanding any other provision in the law. More specifically, while section 948.06(4) provides that if the probationer or offender is under supervision for any criminal offense proscribed in chapter 794, section 800.04(4), (5), (6), section 827.071, or section 847.0145, or is a registered sexual predator or a registered sexual offender, or is under supervision for a criminal offense for which he or she would meet the registration criteria in section 775.21, section 943.0435, or section 944.607 but for the effective date of those sections, the court is required to conduct a “dangerousness” hearing and has the discretion to release such an offender “with or without bail to await further hearing,” such an offender who is also a VFOSC or is VFOSC-qualified cannot be released or be granted bail under any circumstances.

The act provides that the court shall not dismiss the probation or community control violation warrant pending against an offender enumerated in paragraphs 1-3, supra, without holding a recorded violation-of-probation hearing at which both the state and the offender are represented. If the court, after conducting the required hearing, determines that a VFOSC has committed a violation of probation or community control other than a failure to pay costs, fines, or restitution, the court must:

1. Make written findings as to whether or not the violent felony offender of special concern poses a danger to the community. In determining the danger to the community posed by the offender’s release, the court must base its findings on one or more of the following:

a. The nature and circumstances of the violation and any new offenses charged.

b. The offender’s present conduct, including criminal convictions.

c. The offender’s amenability to nonincarcerative sanctions based on his or her history and conduct during the probation or community control supervision from which the violation hearing arises and any other previous supervisions, including disciplinary records of previous incarcerations.

d. The weight of the evidence against the offender.

e. Any other facts the court considers relevant.

2. Decide whether to revoke the probation or community control.

If the court has found that a VFOSC concern poses a danger to the community, the court must revoke probation and “shall” sentence the offender up to the statutory maximum, or longer if permitted by law. If the court has found that a VFOSC does not pose a danger to the community, the court may revoke, modify, or continue the probation or community control or may place the probationer into community control.

This means that a court cannot summarily dismiss a VOP or VOCC of a VFOSC or VFOSC-qualifying defendant.

Presently, community sanction violation points are assessed when a community sanction violation is before the court for sentencing. Six sentence points are assessed for each community sanction violation, and each successive community sanction violation, unless the community sanction violation includes a new felony conviction before the sentencing court, in which case twelve community sanction violation points are assessed for the such violation, and for each successive community sanction violation involving a new felony conviction.

The act changes this for VFOSC defendants: If the community sanction violation is committed by a VFOSC as defined in section 948.06, twelve community sanction violation points are assessed for the violation and for each successive violation of felony probation or community control where the violation does not include a new felony conviction, and the community sanction violation is not based solely on the probationer or offender’s failure to pay costs or fines or make restitution payments, and twenty-four community sanction violation points are assessed for the violation and for each successive violation of felony probation or community control where the violation includes a new felony conviction.

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Written by Hon. William Burgess

January 24, 2008 at 3:29 pm

One Response

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  1. Effective. I agree.


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