In Part 1 of the Florida Sentencing Enhancements blog, I discussed the Prison Releasee Reoffender (PRR) enhancement. I also reviewed the standard minimum and maximum sentences in Florida without these enhancements. Today I will discuss the Habitual Felony Offender (HFO) enhancement. Following is the description, qualifications, sentencing enhancement, gain time issues, and the pertinent part of the statute for your reference.
HFO – Habitual Felony Offender
A Habitual Felony Offender (HFO or HO) is a defendant who has been previously convicted of any combination of two or more felonies in this state or other qualified offense.
This sentencing enhancement allows the court to impose an extended term of imprisonment, upon conviction of the current offense.
To be designated an as HFO, the following qualifications must be met:
- The state must seek to have the offender designated as HFO;
- The offender has two prior felony convictions (convictions include “withholds of adjudication);
- The prior convictions were on separate occasions (from each other and from the present offense);
- The present offense is any felony committed while the offender was serving any sentence imposed as a result of a prior felony, or within 5 years of the date of conviction of the offender’s last prior felony, or within five years of the offender’s release from prison or other sentence, whichever is later;
- The present offense and one of the “prior” offenses are not violations of Fl. Stat. 893.13, relating to the purchase or possession of a controlled substance; and
- The offender has not received a pardon on the ground of innocence for any felony or other qualified offense that is necessary for the enhancement, and a conviction of a crime necessary to the operation of the law has not been set aside in any post-conviction proceeding.
If the above qualifications are met, and State proves these qualification of the offender by a preponderance of the evidence, the Court may sentence the offender as an HFO. This means sentencing as an HFO designation is not required, but is in the discretion of the court. The Judge has the discretion to sentence the offender under the Criminal Punishment Code, without regard to the enhancement, if the Court finds such sentence enhancement is not necessary for the protection of the public.
However, if the Court does find the sentence enhancement is necessary, the Court may sentence the offender as follows:
- For first degree felonies and life felonies – up to life in prison
- For second degree felonies – up to 30 years in prison
- For third degree felonies – up to 10 years in prison
Offenders are eligible for gain time granted by the Department of Corrections.
Fl. Stat. 775.084(1)(a) and (4)(a)
(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.
(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.
(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).