The Florida Senate

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.

775.03  Benefit of clergy.

775.04  What penal acts or omissions not public offenses.

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.

775.084  Violent career criminals; habitual felony offenders and habitual violent felony offenders; definitions; procedure; enhanced penalties.

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.

775.0845  Wearing mask while committing offense; reclassification.

775.0846  Wearing bulletproof vest while committing certain offenses.

775.085  Evidencing prejudice while committing offense; enhanced penalties.

775.087  Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.

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.

775.16  Drug offenses; additional penalties.

775.21  The Florida Sexual Predators Act; definitions; legislative findings, purpose, and intent; criteria; designation; registration; community and public notification; immunity; penalties.

775.24  Duty of the court to uphold laws governing sexual predators and sexual offenders.

775.25  Prosecutions for acts or omissions.

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.

History.--s. 1, Nov. 6, 1829; s. 1, Feb. 10, 1832; RS 2369; GS 3194; RGS 5024; CGL 7126.

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.

History.--s. 1, ch. 74-383; s. 43, ch. 75-298; s. 484, ch. 81-259.

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.

History.--s. 2, ch. 74-383; s. 1, ch. 77-174.

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.

History.--s. 1, Nov. 6, 1829; RS 2370; GS 3195; RGS 5025; CGL 7127.

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.

History.--s. 3, ch. 74-383; s. 1, ch. 76-66; s. 1, ch. 77-174; s. 1, ch. 83-156; s. 7, ch. 88-131.

775.03  Benefit of clergy.--The doctrine of benefit of clergy shall have no operation in this state.

History.--s. 75, Feb. 10, 1832; RS 2371; GS 3196; RGS 5026; CGL 7128.

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.

History.--RS 2349; GS 3173; RGS 5002; CGL 7101; s. 1184, ch. 97-102.

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.

History.--s. 1(11), ch. 1637, 1868; RS 2352; GS 3176; RGS 5006; CGL 7105; s. 1, ch. 71-136; s. 4, ch. 74-383; s. 1, ch. 75-298; s. 1, ch. 88-196.

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.

History.--s. 2, ch. 71-136; s. 1, ch. 72-724.

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.  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.

(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;

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 an occupied structure or dwelling; or

r.  Any felony violation of s. 790.07, s. 800.04, s. 827.03, or s. 827.071;

within 3 years of being released from a state correctional facility operated by the Department of Corrections or a private vendor.

2.  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 any of the following circumstances exist:

a.  The prosecuting attorney does not have sufficient evidence to prove the highest charge available;

b.  The testimony of a material witness cannot be obtained;

c.  The victim does not want the offender to receive the mandatory prison sentence and provides a written statement to that effect; or

d.  Other extenuating circumstances exist which preclude the just prosecution of the offender.

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 a quarterly 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.

History.--s. 3, ch. 71-136; ss. 1, 2, ch. 72-118; s. 2, ch. 72-724; s. 5, ch. 74-383; s. 1, ch. 77-174; s. 1, ch. 83-87; s. 1, ch. 94-228; s. 16, ch. 95-184; s. 4, ch. 95-294; s. 2, ch. 97-239; s. 2, ch. 98-3; s. 10, ch. 98-204.

775.0823  Violent offenses committed against law enforcement officers, correctional officers, state attorneys, assistant state attorneys, justices, or judges.--Any provision of law to the contrary notwithstanding, 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 the Criminal Punishment Code.

(3)  For murder in the second degree as described in s. 782.04(2) and (3), a sentence pursuant to the Criminal Punishment Code.

(4)  For attempted murder in the second degree as described in s. 782.04(2) and (3), a sentence pursuant to the Criminal Punishment Code.

(5)  For murder in the third degree as described in s. 782.04(4), a sentence pursuant to the Criminal Punishment Code.

(6)  For attempted murder in the third degree as described in s. 782.04(4), a sentence pursuant to the Criminal Punishment Code.

(7)  For manslaughter as described in s. 782.07 during the commission of a crime, a sentence pursuant to the Criminal Punishment Code.

(8)  For kidnapping as described in s. 787.01, a sentence pursuant to the Criminal Punishment Code.

(9)  For aggravated battery as described in s. 784.045, a sentence pursuant to the Criminal Punishment Code.

(10)  For aggravated assault as described in s. 784.021, a sentence pursuant to the Criminal Punishment Code.

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.

History.--s. 3, ch. 89-100; s. 1, ch. 90-77; s. 16, ch. 93-406; s. 17, ch. 95-184; s. 11, ch. 97-194; s. 5, ch. 98-417.

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.

If a defendant is unable to pay a fine, the court may defer payment of the fine to a date certain.

(2)(a)  A county may adopt an ordinance imposing, in addition to any other fine, penalty, or cost imposed by subsection (1) or any other provision of law, a fine upon any person who, with respect to a charge, indictment, or prosecution commenced in that county, pleads guilty or 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.

(b)  The fine is $50 for a felony and $20 for any other offense. When the defendant enters the plea or is convicted or adjudicated, in a court in that county, the court may order the defendant to pay such fine if the court finds that the defendant has the ability to pay the fine and that the defendant would not be prevented thereby from being rehabilitated or making restitution.

(c)  The clerk of the court shall collect and deposit the fines in an appropriate county account for disbursement for the purposes provided in this subsection.

(d)  A county that imposes the additional fines authorized under this subsection shall account for the fines separately from other county funds, as crime prevention funds. The county, in consultation with the sheriff, must expend such fines for the costs of collecting the fines and 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.

History.--s. 4, ch. 71-136; s. 6, ch. 74-383; s. 1, ch. 77-97; s. 1, ch. 77-174; s. 1, ch. 96-408; s. 1810, ch. 97-102.

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 deposited 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 credited to 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.

History.--ss. 2, 3, ch. 77-452; s. 20, ch. 80-146; s. 2, ch. 83-319; s. 8, ch. 85-326; s. 12, ch. 91-23; s. 2, ch. 93-9; s. 18, ch. 94-342; s. 6, ch. 97-271.

775.084  Violent career criminals; habitual felony offenders and habitual violent felony offenders; definitions; procedure; enhanced penalties.--

(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 commitment 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 or other commitment 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;

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 commitment 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 or other commitment 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)  "Violent career criminal" means a defendant for whom the court must impose imprisonment pursuant to paragraph (4)(c), 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, lascivious, or indecent conduct, 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 commitment 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 or other commitment 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.

(d)  "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 if the subsequent offense for which the person is to be sentenced was committed during such period of probation or community control.

(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 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 (c).

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.

(c)1.  A person sentenced under paragraph (4)(c) 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)  The court, in conformity with the procedure established in paragraph (3)(b), 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.

(d)  If the court finds, pursuant to paragraph (3)(a) or paragraph (3)(b), 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.

(e)  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) or paragraph (3)(b).

(f)  A sentence imposed under this section shall not be increased after such imposition.

(g)  A sentence imposed under this section is not subject to s. 921.002.

(h)  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.

(i)  The provisions of s. 947.1405 shall apply to persons sentenced as habitual felony offenders and persons sentenced as habitual violent felony offenders.

(j)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.

(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.

History.--s. 5, ch. 71-136; s. 7, ch. 74-383; s. 1, ch. 75-116; s. 2, ch. 75-298; s. 1, ch. 77-174; s. 6, ch. 88-131; s. 1, ch. 89-280; s. 2, ch. 93-406; s. 2, ch. 95-182; s. 8, ch. 95-195; s. 14, ch. 96-322; s. 44, ch. 96-388; s. 12, ch. 97-78; s. 12, ch. 97-194; s. 11, ch. 98-204.

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)  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.

(b)  On a quarterly basis, each state attorney shall submit copies of deviation memoranda regarding offenses committed on or after October 1, 1995, to the president of the Florida Prosecuting Attorneys Association, Inc. The association must maintain such information for at least a 10-year period.

(4)  A deviation from the adopted criteria is not subject to appellate review.

History.--s. 3, ch. 93-406; s. 3, ch. 95-182.

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.

History.--s. 3, ch. 88-131; s. 4, ch. 95-182.

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.

History.--s. 4, ch. 88-131; s. 2, ch. 89-280; s. 5, ch. 95-182; s. 46, ch. 96-388.

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.

History.--s. 5, ch. 88-131; s. 3, ch. 89-280; s. 6, ch. 95-182.

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.

History.--s. 2, ch. 81-249; s. 21, ch. 95-184; s. 1, ch. 97-39; s. 1185, ch. 97-102; s. 13, ch. 97-194.

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.

History.--s. 1, ch. 85-29; s. 1186, ch. 97-102.

775.085  Evidencing prejudice while committing offense; enhanced penalties.--

(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 shall be punishable as if it were a misdemeanor of the first degree.

2.  A misdemeanor of the first degree shall be punishable as if it were a felony of the third degree.

3.  A felony of the third degree shall be punishable as if it were a felony of the second degree.

4.  A felony of the second degree shall be punishable as if it were a felony of the first degree.

5.  A felony of the first degree shall be punishable as if it were 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.

History.--s. 1, ch. 89-133; s. 1, ch. 91-83; s. 1, ch. 98-83.

775.087  Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.--

¹(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, 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. 921.0012 or s. 921.0013 of the felony offense committed.

(2)  Any person who is convicted of a felony or an attempt to commit a 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; or

(p)  Aggravated stalking

and during the commission of the offense, such person 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 3 years. 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.

(3)(a)  Any person who is convicted of a felony or an attempt to commit a felony and the conviction was for:

1.  Murder;

2.  Sexual battery;

3.  Robbery;

4.  Burglary;

5.  Arson;

6.  Aggravated assault;

7.  Aggravated battery;

8.  Kidnapping;

9.  Escape;

10.  Sale, manufacture, delivery, or intent to sell, manufacture, or deliver any controlled substance;

11.  Aircraft piracy;

12.  Aggravated child abuse;

13.  Aggravated abuse of an elderly person or disabled adult;

14.  Unlawful throwing, placing, or discharging of a destructive device or bomb;

15.  Carjacking;

16.  Home-invasion robbery; or

17.  Aggravated stalking

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 8 years. 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.

(b)  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.

History.--s. 9, ch. 74-383; s. 1, ch. 75-7; s. 3, ch. 75-298; s. 2, ch. 76-75; s. 51, ch. 83-215; s. 3, ch. 89-306; s. 2, ch. 90-124; s. 2, ch. 90-176; s. 19, ch. 95-184; s. 9, ch. 95-195; s. 15, ch. 96-322; s. 55, ch. 96-388; s. 14, ch. 97-194.

¹Note.--Section 14, ch. 97-194, amended subsection (1), effective October 1, 1998, to read:

(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, 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.

¹775.0875  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. 921.0012 or s. 921.0013 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.

History.--s. 2, ch. 89-157; s. 17, ch. 93-406; s. 22, ch. 95-184; s. 56, ch. 96-388; s. 15, ch. 97-194.

¹Note.--Section 15, ch. 97-194, amended s. 775.0875, effective October 1, 1998, to read:

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.

¹775.0877  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)  Section 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 ²Department of Health and Rehabilitative Services in accordance with s. 381.004, unless the offender has undergone HIV testing voluntarily or pursuant to procedures established in s. 381.004(3)(i)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 ²Department of Health and Rehabilitative Services, 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.

History.--s. 8, ch. 93-227; s. 7, ch. 96-221; s. 2, ch. 96-293; s. 16, ch. 96-322; s. 4, ch. 97-37; s. 1811, ch. 97-102.

¹Note.--Section 5, ch. 97-37, provides that "[t]his act shall take effect October 1, 1997, and shall apply to offenses committed on or after that date."

²Note.--The Department of Health and Rehabilitative Services was redesignated as the Department of Children and Family Services by s. 5, ch. 96-403, and the Department of Health was created by s. 8, ch. 96-403.

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)  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.--

1.  The clerk of court or probation officer shall serve an income deduction order and the notice to payor on the defendant's payor unless the defendant has applied for a hearing to contest the enforcement of the income deduction order.

2.a.  Service by or upon any person who is a party to a proceeding under this subsection shall be made in the manner prescribed in the Florida Rules of Civil Procedure for service upon parties.

b.  Service upon the defendant's payor or successor payor under this subsection shall be made by prepaid certified mail, return receipt requested, or in the manner prescribed in chapter 48.

3.  The defendant, within 15 days after having an income deduction order entered against him or her, may apply for a hearing to contest the enforcement of the income deduction order on the ground of mistake of fact regarding the amount of restitution owed. The timely request for a hearing shall stay the service of an income deduction order on all payors of the defendant until a hearing is held and a determination is made as to whether the enforcement of the income deduction order is proper.

4.  The notice to payor shall contain only information necessary for the payor to comply with the income deduction order. The notice shall:

a.  Require the payor to deduct from the defendant's income the amount specified in the income deduction order and to pay that amount to the clerk of court.

b.  Instruct the payor to implement the income deduction order no later than the first payment date which occurs more than 14 days after the date the income deduction order was served on the payor.

c.  Instruct the payor to forward within 2 days after each payment date to the clerk of court the amount deducted from the defendant's income and a statement as to whether the amount totally or partially satisfies the periodic amount specified in the income deduction order.

d.  Specify that, if a payor fails to deduct the proper amount from the defendant's income, the payor is liable for the amount the payor should have deducted plus costs, interest, and reasonable attorney's fees.

e.  Provide that the payor may collect up to $5 against the defendant's income to reimburse the payor for administrative costs for the first income deduction and up to $2 for each deduction thereafter.

f.  State that the income deduction order and the notice to payor are binding on the payor until further notice by the court or until the payor no longer provides income to the defendant.

g.  Instruct the payor that, when he or she no longer provides income to the defendant, the payor shall notify the clerk of court and shall also provide the defendant's last known address and the name and address of the defendant's new payor, if known, and that, if the payor violates this provision, the payor is subject to a civil penalty not to exceed $250 for the first violation or $500 for any subsequent violation.

h.  State that the payor shall not discharge, refuse to employ, or take disciplinary action against the defendant because of an income deduction order and shall state that a violation of this provision subjects the payor to a civil penalty not to exceed $250 for the first violation or $500 for any subsequent violation.

i.  Inform the payor that, when he or she receives income deduction orders requiring that the income of two or more defendants be deducted and sent to the same clerk of court, the payor may combine the amounts that are to be paid to the depository in a single payment as long as he or she identifies that portion of the payment attributable to each defendant.

j.  Inform the payor that if the payor receives more than one income deduction order against the same defendant, he or she shall contact the court for further instructions.

5.  The clerk of court shall enforce income deduction orders against the defendant's successor payor who is located in this state in the same manner prescribed in this subsection for the enforcement of an income deduction order against an original payor.

6.  A person may not discharge, refuse to employ, or take disciplinary action against an employee because of the enforcement of an income deduction order. An employer who violates this provision is subject to a civil penalty not to exceed $250 for the first violation or $500 for any subsequent violation.

7.  When a payor no longer provides income to a defendant, the payor shall notify the clerk of court and shall provide the defendant's last known address and the name and address of the defendant's new payor, if known. A payor who violates this provision is subject to a civil penalty not to exceed $250 for the first violation or $500 for a subsequent violation.

History.--s. 1, ch. 77-150; s. 288, ch. 79-400; s. 5, ch. 84-363; s. 2, ch. 88-96; s. 38, ch. 88-122; s. 10, ch. 89-526; s. 2, ch. 92-107; s. 1, ch. 93-37; s. 3, ch. 93-69; s. 19, ch. 94-342; s. 1, ch. 95-160; s. 1187, ch. 97-102.

775.091  Public service.--In addition to any punishment, the court may order the defendant to perform a specified public service.

History.--s. 2, ch. 77-150.

775.13  Registration of convicted felons, exemptions; penalties.--

(1)  As used in this section, the term "convicted" means, with respect to a person's felony offense, 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.

(2)  Any person who has been convicted of a felony in any court of this state shall, within 48 hours after entering any county in this state, register with the sheriff of said county, be fingerprinted and photographed, and list the crime for which convicted, place of conviction, sentence imposed, if any, name, aliases, if any, address, and occupation.

(3)  Any person who has been convicted of a crime in any federal court or in any court of a state other than Florida, or of any foreign state or country, which crime if committed in Florida would be a felony, shall forthwith within 48 hours after entering any county in this state register with the sheriff of said county in the same manner as provided for in subsection (2).

(4)  Any person who is within any county of the state as of October 1, 1997, shall register with the sheriff of such county by December 1, 1997, if such person would be required to register under the terms of subsection (2) or subsection (3), if he or she were entering such county.

(5)  In lieu of registering with the sheriff as required by this section, such registration may be made with the Department of Law Enforcement, and is subject to the same terms and conditions as required for registration with the sheriff.

(6)  This section does not apply to an offender:

(a)  Who has had his or her civil rights restored;

(b)  Who has received a full pardon for the offense for which convicted;

(c)  Who has been lawfully released from incarceration or other sentence or supervision for a felony conviction for more than 5 years prior to such time for registration, unless the offender is a fugitive from justice on a felony charge or has been convicted of any offense since release from such incarceration or other sentence or supervision;

(d)  Who is a parolee or probationer under the supervision of the United States Parole Commission if the commission knows of and consents to the presence of the offender in Florida or is a probationer under the supervision of any federal probation officer in the state or who has been lawfully discharged from such parole or probation;

(e)  Who is a sexual predator and has registered as required under s. 775.21; or

(f)  Who is a sexual offender and has registered as required in s. 943.0435 or s. 944.607.

(7)  Failure of any such convicted felon to comply with this section constitutes a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(8)  All laws and parts of laws in conflict herewith are hereby repealed, provided that nothing in this section shall be construed to affect any law of this state relating to registration of criminals where the penalties are in excess of those imposed by this section.

History.--ss. 1, 2, 3, 4, 5, 6, 7, ch. 57-19; s. 1, ch. 57-371; s. 1, ch. 63-191; s. 1, ch. 65-453; s. 3, ch. 67-2207; ss. 20, 33, 35, ch. 69-106; s. 699, ch. 71-136; s. 11, ch. 77-120; s. 1, ch. 77-174; s. 18, ch. 79-3; s. 21, ch. 79-8; s. 161, ch. 83-216; s. 63, ch. 96-388; s. 4, ch. 97-299; s. 2, ch. 98-81.

775.14  Limitation on withheld sentences.--Any person receiving a withheld sentence upon conviction for a criminal offense, and such withheld sentence has not been altered for a period of 5 years, shall not thereafter be sentenced for the conviction of the same crime for which sentence was originally withheld.

History.--s. 1, ch. 57-284.

¹775.15  Time limitations.--

²(1)(a)  A prosecution for a capital felony, a life felony, or a felony that resulted in a death may be commenced at any time. A prosecution for a felony that resulted in injury to any person, when such felony arises from the use of a "destructive device," as defined in s. 790.001, may be commenced within 10 years. If the death penalty is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, all crimes designated as capital felonies shall be considered life felonies for the purposes of this section, and prosecution for such crimes may be commenced at any time.

(b)  Except as otherwise provided in subsection (7), a prosecution for a first or second degree felony violation of s. 794.011, if such crime is reported to a law enforcement agency within 72 hours after commission of the crime, may be commenced at any time. If such crime is not reported within 72 hours after the commission of the crime, the prosecution must be commenced within the time periods prescribed in subsection (2).

(c)  A prosecution for perjury in an official proceeding that relates to the prosecution of a capital felony may be commenced at any time.

(2)  Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:

(a)  A prosecution for a felony of the first degree must be commenced within 4 years after it is committed.

(b)  A prosecution for any other felony must be commenced within 3 years after it is committed.

(c)  A prosecution for a misdemeanor of the first degree must be commenced within 2 years after it is committed.

(d)  A prosecution for a misdemeanor of the second degree or a noncriminal violation must be commenced within 1 year after it is committed.

(e)  A prosecution for a felony violation of chapter 517 or s. 409.920 must be commenced within 5 years after the violation is committed.

(f)  A prosecution for a felony violation of chapter 403 must be commenced within 5 years after the date of discovery of the violation.

(g)  A prosecution for a felony violation of s. 825.102 must be commenced within 4 years after it is committed.

(h)  A prosecution for a felony violation of s. 440.105 must be commenced within 5 years after the violation is committed.

(3)  If the period prescribed in subsection (2) has expired, a prosecution may nevertheless be commenced for:

(a)  Any offense, a material element of which is either fraud or a breach of fiduciary obligation, within 1 year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself or herself not a party to the offense, but in no case shall this provision extend the period of limitation otherwise applicable by more than 3 years.

(b)  Any offense based upon misconduct in office by a public officer or employee at any time when the defendant is in public office or employment, within 2 years from the time he or she leaves public office or employment, or during any time permitted by any other part of this section, whichever time is greater.

(4)  An offense is committed either when every element has occurred or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated. Time starts to run on the day after the offense is committed.

(5)(a)  Prosecution on a charge on which the defendant has previously been arrested or served with a summons is commenced by the filing of an indictment, information, or other charging document.

(b)  A prosecution on a charge on which the defendant has not previously been arrested or served with a summons is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant's absence from the state shall be considered. The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay.

(c)  If, however, an indictment or information has been filed within the time period prescribed in this section and the indictment or information is dismissed or set aside because of a defect in its content or form after the time period has elapsed, the period for commencing prosecution shall be extended 3 months from the time the indictment or information is dismissed or set aside.

(6)  The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state. This provision shall not extend the period of limitation otherwise applicable by more than 3 years, but shall not be construed to limit the prosecution of a defendant who has been timely charged by indictment or information or other charging document and who has not been arrested due to his or her absence from this state or has not been extradited for prosecution from another state.

(7)  If the victim of a violation of s. 794.011, former s. 794.05, Florida Statutes 1995, s. 800.04, or s. 826.04 is under the age of 16, the applicable period of limitation, if any, does not begin to run until the victim has reached the age of 16 or the violation is reported to a law enforcement agency or other governmental agency, whichever occurs earlier. Such law enforcement agency or other governmental agency shall promptly report such allegation to the state attorney for the judicial circuit in which the alleged violation occurred. If the offense is a first or second degree felony violation of s. 794.011, and the crime is reported within 72 hours after its commission, paragraph (1)(b) applies. This subsection applies to any such offense except an offense the prosecution of which would have been barred by subsection (2) on or before December 31, 1984.

History.--s. 78, Feb. 10, 1832; s. 1, ch. 4915, 1901; RS 2357; GS 3181, 3182; RGS 5011, 5012; CGL 7113, 7114; s. 1, ch. 16962, 1935; s. 10, ch. 26484, 1951; s. 109, ch. 70-339; s. 10, ch. 74-383; s. 1, ch. 76-275; s. 1, ch. 77-174; s. 12, ch. 78-435; s. 6, ch. 84-86; s. 1, ch. 84-550; s. 10, ch. 85-63; s. 4, ch. 89-143; s. 2, ch. 90-120; s. 2, ch. 91-258; s. 16, ch. 93-156; s. 17, ch. 95-158; s. 139, ch. 95-418; s. 1, ch. 96-145; s. 3, ch. 96-280; s. 3, ch. 96-322; s. 4, ch. 96-409; s. 1, ch. 97-36; s. 1, ch. 97-90; s. 1812, ch. 97-102; s. 1, ch. 97-104; s. 17, ch. 98-174.

¹Note.--Section 2, ch. 97-36, provides that "[t]his act shall take effect October 1, 1997, and shall apply to pending cases when the offense was reported within 72 hours of its commission and with respect to which the prosecution has not been barred prior to this date."

²Note.--

A.  Section 2, ch. 96-145, provides that "[t]his act shall take effect October 1, 1996, and shall apply to pending cases the prosecution of which has not been barred prior to this date."

B.  Section 2, ch. 97-104, provides that "[t]his act shall take effect upon becoming a law and shall apply to pending cases the prosecution of which has not been barred prior to that date."

Note.--See former ss. 932.05, 932.06, 915.03, 932.465.

775.16  Drug offenses; additional penalties.--In addition to any other penalty provided by law, a person who has been convicted of sale of or trafficking in, or conspiracy to sell or traffic in, a controlled substance under chapter 893, if such offense is a felony, or who has been convicted of an offense under the laws of any state or country which, if committed in this state, would constitute the felony of selling or trafficking in, or conspiracy to sell or traffic in, a controlled substance under chapter 893, is:

(1)  Disqualified from applying for employment by any agency of the state, unless:

(a)  The person has completed all sentences of imprisonment or supervisory sanctions imposed by the court, by the Parole Commission, or by law; or

(b)  The person has complied with the conditions of subparagraphs 1. and 2. which shall be monitored by the Department of Corrections while the person is under any supervisory sanctions. The person under supervision may:

1.  Seek evaluation and enrollment in, and once enrolled maintain enrollment in until completion, a drug treatment and rehabilitation program which is approved by the ¹Department of Health and Rehabilitative Services, unless it is deemed by the program that the person does not have a substance abuse problem. The treatment and rehabilitation program may be specified by:

a.  The court, in the case of court-ordered supervisory sanctions;

b.  The Parole Commission, in the case of parole, control release, or conditional release; or

c.  The Department of Corrections, in the case of imprisonment or any other supervision required by law.

2.  Submit to periodic urine drug testing pursuant to procedures prescribed by the Department of Corrections. If the person is indigent, the costs shall be paid by the Department of Corrections.

(2)  Disqualified from applying for a license, permit, or certificate required by any agency of the state to practice, pursue, or engage in any occupation, trade, vocation, profession, or business, unless:

(a)  The person has completed all sentences of imprisonment or supervisory sanctions imposed by the court, by the Parole Commission, or by law;

(b)  The person has complied with the conditions of subparagraphs 1. and 2. which shall be monitored by the Department of Corrections while the person is under any supervisory sanction. If the person fails to comply with provisions of these subparagraphs by either failing to maintain treatment or by testing positive for drug use, the department shall notify the licensing, permitting, or certifying agency, which may refuse to reissue or reinstate such license, permit, or certification. The licensee, permittee, or certificateholder under supervision may:

1.  Seek evaluation and enrollment in, and once enrolled maintain enrollment in until completion, a drug treatment and rehabilitation program which is approved or regulated by the ¹Department of Health and Rehabilitative Services, unless it is deemed by the program that the person does not have a substance abuse problem. The treatment and rehabilitation program may be specified by:

a.  The court, in the case of court-ordered supervisory sanctions;

b.  The Parole Commission, in the case of parole, control release, or conditional release; or

c.  The Department of Corrections, in the case of imprisonment or any other supervision required by law.

2.  Submit to periodic urine drug testing pursuant to procedures prescribed by the Department of Corrections. If the person is indigent, the costs shall be paid by the Department of Corrections; or

(c)  The person has successfully completed an appropriate program under the Correctional Education Program.

The provisions of this section do not apply to any of the taxes, fees, or permits regulated, controlled, or administered by the Department of Revenue in accordance with the provisions of s. 213.05.

History.--s. 2, ch. 90-266; s. 21, ch. 92-310; s. 13, ch. 95-325.

¹Note.--The Department of Health and Rehabilitative Services was redesignated as the Department of Children and Family Services by s. 5, ch. 96-403, and the Department of Health was created by s. 8, ch. 96-403.

775.21  The Florida Sexual Predators Act; definitions; legislative findings, purpose, and intent; criteria; designation; registration; community and public notification; immunity; penalties.--

(1)  SHORT TITLE.--This section may be cited as "The Florida Sexual Predators Act."

(2)  DEFINITIONS.--As used in this section, the term:

(a)  "Chief of police" means the chief law enforcement officer of a municipality.

(b)  "Community" means any county where the sexual predator lives or otherwise establishes or maintains a temporary or permanent residence.

(c)  "Conviction" 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. A conviction for a similar offense includes, but is not limited to, a conviction by a federal or military tribunal, including courts-martial conducted by the Armed Forces of the United States, and includes a conviction in any state of the United States.

(d)  "Department" means the Department of Law Enforcement.

(e)  "Entering the county" includes being discharged from a correctional facility or jail or secure treatment facility within the county or being under supervision within the county for the commission of a violation enumerated in subsection (4).

(f)  "Permanent residence" means a place where the person abides, lodges, or resides for 14 or more consecutive days.

(g)  "Temporary residence" means a place where the person abides, lodges, or resides for a period of 14 or more days in the aggregate during any calendar year and which is not the person's permanent address; for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in this state; or a place where the person routinely abides, lodges, or resides for a period of 4 or more consecutive or nonconsecutive days in any month and which is not the person's permanent residence.

(3)  LEGISLATIVE FINDINGS AND PURPOSE; LEGISLATIVE INTENT.--

(a)  Repeat sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Sexual offenders are extremely likely to use physical violence and to repeat their offenses, and most sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. This makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant.

(b)  The high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:

1.  Incarcerating sexual predators and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space.

2.  Providing for specialized supervision of sexual predators who are in the community by specially trained probation officers with low caseloads, as described in ss. 947.1405(7) and 948.03(5). The sexual predator is subject to specified terms and conditions implemented at sentencing or at the time of release from incarceration, with a requirement that those who are financially able must pay all or part of the costs of supervision.

3.  Requiring the registration of sexual predators, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public.

4.  Providing for community and public notification concerning the presence of sexual predators.

5.  Prohibiting sexual predators from working with children, either for compensation or as a volunteer.

(c)  The state has a compelling interest in protecting the public from sexual predators and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual predators to register and for requiring community and public notification of the presence of sexual predators.

(d)  It is the purpose of the Legislature that, upon the court's written finding that an offender is a sexual predator, in order to protect the public, it is necessary that the sexual predator be registered with the department and that members of the community and the public be notified of the sexual predator's presence. The designation of a person as a sexual predator is neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes.

(e)  It is the intent of the Legislature to address the problem of sexual predators by:

1.  Requiring sexual predators supervised in the community to have special conditions of supervision and to be supervised by probation officers with low caseloads;

2.  Requiring sexual predators to register with the Florida Department of Law Enforcement, as provided in this section; and

3.  Requiring community and public notification of the presence of a sexual predator, as provided in this section.

(4)  SEXUAL PREDATOR CRITERIA.--

(a)  For a current offense committed on or after October 1, 1993, and before October 1, 1995:

1.  An offender who was found by the court under former s. 775.22 or former s. 775.23 to be a sexual predator is a "sexual predator" if the court made a written finding that the offender was a sexual predator at the time of sentencing, as required by former s. 775.23. Such sexual predator must register or be registered as a sexual predator with the department as provided in subsection (6), and is subject to community and public notification as provided in subsection (7). Upon notification of the presence of a sexual predator, the sheriff of the county or the chief of police of the municipality where the sexual predator establishes or maintains a permanent or temporary residence shall notify members of the community and the public of the presence of the sexual predator in a manner deemed appropriate by the sheriff or the chief of police.

2.  If an offender has been registered as a sexual predator by the Department of Corrections, the department, or any other law enforcement agency and:

a.  The court did not, for whatever reason, make a written finding at the time of sentencing that the offender was a sexual predator, or

b.  The offender was administratively registered as a sexual predator because the Department of Corrections, the department, or any other law enforcement agency obtained information which indicated that the offender met the sexual predator criteria based on a violation of a similar law in another jurisdiction,

the department shall remove that offender from the department's sexual predator list, and shall notify the state attorney who prosecuted the offense that triggered the administrative sexual predator designation for offenders described in sub-subparagraph a., or the state attorney of the county where the offender establishes or maintains a permanent or temporary residence on October 1, 1996, for offenders described in sub-subparagraph b. The state attorney may bring the matter to the court's attention in order to establish that the offender meets the sexual predator criteria. If the court then makes a written finding that the offender is a sexual predator, the offender is designated as a sexual predator, must register or be registered as a sexual predator with the department as provided in subsection (6), and is subject to community and public notification requirements as provided in subsection (7). If the court does not make a written finding that the offender is a sexual predator, the offender is not designated as a sexual predator with respect to that offense, is not required to register or be registered as a sexual predator with the department, and is not subject to the requirements for community and public notification as a sexual predator.

(b)  For a current offense committed on or after October 1, 1995, and before October 1, 1996:

1.  An offender who was found by the court under former s. 775.22 or former s. 775.23 to be a sexual predator is a "sexual predator" if the court made a written finding that the offender was a sexual predator at the time of sentencing, as required by former s. 775.23. Such sexual predator must register or be registered with the department as provided in subsection (6), and is subject to community and public notification as provided in subsection (7). Upon notification of the presence of a sexual predator, the sheriff of the county or the chief of police of the municipality where the sexual predator establishes or maintains a permanent or temporary residence shall notify the community and the public of the presence of the sexual predator in a manner deemed appropriate by the sheriff or the chief of police.

2.  If an offender has been registered as a sexual predator by the Department of Corrections, the department, or any other law enforcement agency and:

a.  The court did not, for whatever reason, make a written finding at the time of sentencing that the offender was a sexual predator, or

b.  The offender was administratively registered as a sexual predator because the Department of Corrections, the department, or any other law enforcement agency obtained information which indicated that the offender met the sexual predator criteria based on a violation of a similar law in another jurisdiction,

the department shall remove that offender from the department's sexual predator list, and shall notify the state attorney who prosecuted the offense that triggered the administrative sexual predator designation for offenders described in sub-subparagraph a., or the state attorney of the county where the offender establishes or maintains a permanent or temporary residence on October 1, 1996, for offenders described in sub-subparagraph b. The state attorney may bring the matter to the court's attention in order to establish that the offender meets the sexual predator criteria. If the court makes a written finding that the offender is a sexual predator, the offender is designated as a sexual predator, must register or be registered as a sexual predator with the department as provided in subsection (6), and is subject to the community and public notification as provided in subsection (7). If the court does not make a written finding that the offender is a sexual predator, the offender is not designated as a sexual predator with respect to that offense and is not required to register or be registered as a sexual predator with the department.

(c)  For a current offense committed on or after October 1, 1996, upon conviction, an offender shall be designated as a "sexual predator" under subsection (5), and subject to registration under subsection (6) and community and public notification under subsection (7) if:

1.  The felony meets the criteria of former ss. 775.22(2) and 775.23(2), specifically, the felony is:

a.  A capital, life, or first-degree felony violation of s. 787.01 or s. 787.02, where the victim is a minor and the defendant is not the victim's parent, or of chapter 794 or s. 847.0145, or a violation of a similar law of another jurisdiction;

b.  An attempt to commit a capital, life, or first-degree felony violation of chapter 794, where the victim is a minor, or a violation of a similar law of another jurisdiction; or

c.  Any second-degree or greater felony violation of s. 787.01 or s. 787.02, where the victim is a minor and the defendant is not the victim's parent; chapter 794; s. 796.03; s. 800.04; s. 825.1025(2)(b); s. 827.071; or s. 847.0145; or a violation of a similar law of another jurisdiction, and the offender has previously been convicted of or found to have committed, or has pled nolo contendere or guilty to, regardless of adjudication, any violation of s. 787.01 or s. 787.02, where the victim is a minor and the defendant is not the victim's parent; s. 794.011(2), (3), (4), (5), or (8); s. 794.023; s. 796.03; s. 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135; or s. 847.0145, or a violation of a similar law of another jurisdiction;

2.  The offender has not received a pardon for any felony or similar law of another jurisdiction that is necessary for the operation of this paragraph; and

3.  A conviction of a felony or similar law of another jurisdiction necessary to the operation of this paragraph has not been set aside in any postconviction proceeding.

(d)  In order to be counted as a prior felony for purposes of this subsection, the felony must have resulted in a conviction sentenced separately, or an adjudication of delinquency entered separately, prior to the current offense and sentenced or adjudicated separately from any other felony conviction that is to be counted as a prior felony. If the offender's prior enumerated felony was committed more than 10 years before the primary offense, it shall not be considered a prior felony under this subsection if the offender has not been convicted of any other crime for a period of 10 consecutive years from the most recent date of release from confinement, supervision, or sanction, whichever is later.

(5)  SEXUAL PREDATOR DESIGNATION.--For a current offense committed on or after October 1, 1996, an offender is designated as a sexual predator as follows:

(a)1.  An offender who meets the sexual predator criteria described in paragraph (4)(c) who is before the court for sentencing for a current offense committed on or after October 1, 1996, is a sexual predator, and the sentencing court must make a written finding at the time of sentencing that the offender is a sexual predator, and the clerk of the court shall transmit a copy of the order containing the written finding to the department within 48 hours after the entry of the order; or

2.  If the Department of Corrections, the department, or any other law enforcement agency obtains information which indicates that an offender who establishes or maintains a permanent or temporary residence in this state meets the sexual predator criteria described in paragraph (4)(c) because the offender committed a similar violation in another jurisdiction on or after October 1, 1996, the Department of Corrections, the department, or the law enforcement agency shall notify the state attorney of the county where the offender establishes or maintains a permanent or temporary residence of the offender's presence in the community. The state attorney shall file a petition with the criminal division of the circuit court for the purpose of holding a hearing to determine if the offender's criminal record from another jurisdiction meets the sexual predator criteria. If the court finds that the offender meets the sexual predator criteria because the offender has violated a similar law or similar laws in another jurisdiction, the court shall make a written finding that the offender is a sexual predator.

When the court makes a written finding that an offender is a sexual predator, the court shall inform the sexual predator of the registration and community and public notification requirements described in this section. Within 48 hours of the court designating an offender as a sexual predator, the clerk of the circuit court shall transmit a copy of the court's written sexual predator finding to the department. If the offender is sentenced to a term of imprisonment or supervision, a copy of the court's written sexual predator finding must be submitted to the Department of Corrections.

(b)  If a sexual predator is not sentenced to a term of imprisonment, the clerk of the court shall ensure that the sexual predator's fingerprints are taken and forwarded to the department within 48 hours after the court renders its written sexual predator finding. The fingerprint card shall be clearly marked, "Sexual Predator Registration Card." The clerk of the court that convicts and sentences the sexual predator for the offense or offenses described in subsection (4) shall forward to the department and to the Department of Corrections a certified copy of any order entered by the court imposing any special condition or restriction on the sexual predator which restricts or prohibits access to the victim, if the victim is a minor, or to other minors.

(c)  If the Department of Corrections, the department, or any other law enforcement agency obtains information which indicates that an offender meets the sexual predator criteria but the court did not make a written finding that the offender is a sexual predator as required in paragraph (a), the Department of Corrections, the department, or the law enforcement agency shall notify the state attorney who prosecuted the offense for offenders described in subparagraph (a)1., or the state attorney of the county where the offender establishes or maintains a residence upon first entering the state for offenders described in subparagraph (a)2. The state attorney shall bring the matter to the court's attention in order to establish that the offender meets the sexual predator criteria. If the state attorney fails to establish that an offender meets the sexual predator criteria and the court does not make a written finding that an offender is a sexual predator, the offender is not required to register with the department as a sexual predator. The Department of Corrections, the department, or any other law enforcement agency shall not administratively designate an offender as a sexual predator without a written finding from the court that the offender is a sexual predator.

(d)  A person who establishes or maintains a residence in this state and who has not been designated as a sexual predator by a court of this state but who has been designated as a sexual predator, as a sexually violent predator, or by another sexual offender designation in another state or jurisdiction and was, as a result of such designation, subjected to registration or community or public notification, or both, shall register in the manner provided in s. 943.0435 or s. 944.607 and shall be subject to community and public notification as provided in s. 943.0435 or s. 944.607. A person who meets the criteria of this section is subject to the requirements and penalty provisions of s. 943.0435 or s. 944.607 until the person provides the department with an order issued by the court that designated the person as a sexual predator, as a sexually violent predator, or by another sexual offender designation in another state or jurisdiction in which the order was issued which states that such designation has been removed, and provided such person no longer meets the criteria for registration as a sexual offender under the laws of this state.

(6)  REGISTRATION.--

(a)  A sexual predator must register with the department by providing the following information to the department:

1.  Name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, photograph, address of legal residence and address of any current temporary residence, including a rural route address and a post office box, date and place of any employment, date and place of each conviction, fingerprints, and a brief description of the crime or crimes committed by the offender. A post office box shall not be provided in lieu of a physical residential address. If the sexual predator's place of residence is a motor vehicle, trailer, mobile home, or manufactured home, as defined in chapter 320, the sexual predator shall also provide to the department written notice of the vehicle identification number; the license tag number; the registration number; and a description, including color scheme, of the motor vehicle, trailer, mobile home, or manufactured home. If a sexual predator's place of residence is a vessel, live-aboard vessel, or houseboat, as defined in chapter 327, the sexual predator shall also provide to the department written notice of the hull identification number; the manufacturer's serial number; the name of the vessel, live-aboard vessel, or houseboat; the registration number; and a description, including color scheme, of the vessel, live-aboard vessel, or houseboat.

2.  Any other information determined necessary by the department, including criminal and corrections records; nonprivileged personnel, treatment, and abuse registry records; and evidentiary genetic markers when available.

(b)  If the sexual predator is in the custody or control of, or under the supervision of, the Department of Corrections, or is in the custody of a private correctional facility, the sexual predator must register with the Department of Corrections. The Department of Corrections shall provide to the department registration information and the location of, and local telephone number for, any Department of Corrections office that is responsible for supervising the sexual predator.

(c)  If the sexual predator is in the custody of a local jail, the custodian of the local jail shall register the sexual predator and forward the registration information to the department. The custodian of the local jail shall also take a digitized photograph of the sexual predator while the sexual predator remains in custody and shall provide the digitized photograph to the department.

(d)  If the sexual predator is under federal supervision, the federal agency responsible for supervising the sexual predator may forward to the department any information regarding the sexual predator which is consistent with the information provided by the Department of Corrections under this section, and may indicate whether use of the information is restricted to law enforcement purposes only or may be used by the department for purposes of public notification.

(e)  If the sexual predator is not in the custody or control of, or under the supervision of, the Department of Corrections, or is not in the custody of a private correctional facility, and establishes or maintains a residence in the state, the sexual predator shall initially register in person at an office of the department, or at the sheriff's office in the county in which the predator establishes or maintains a residence, within 48 hours after establishing permanent or temporary residence in this state. If a sexual predator registers with the sheriff's office, the sheriff shall take a photograph and a set of fingerprints of the predator and forward the photographs and fingerprints to the department, along with the information that the predator is required to provide pursuant to this section.

(f)  Within 48 hours after the initial registration required under paragraph (a) or paragraph (e), a sexual predator who is not incarcerated and who resides in the community, including a sexual predator under the supervision of the Department of Corrections, shall register in person at a driver's license office of the Department of Highway Safety and Motor Vehicles and shall present proof of initial registration. At the driver's license office the sexual predator shall:

1.  If otherwise qualified, secure a Florida driver's license, renew a Florida driver's license, or secure an identification card. The sexual predator shall identify himself or herself as a sexual predator who is required to comply with this section, provide his or her place of permanent or temporary residence, including a rural route address and a post office box, and submit to the taking of a photograph for use in issuing a driver's license, renewed license, or identification card, and for use by the department in maintaining current records of sexual predators. A post office box shall not be provided in lieu of a physical residential address. If the sexual predator's place of residence is a motor vehicle, trailer, mobile home, or manufactured home, as defined in chapter 320, the sexual predator shall also provide to the Department of Highway Safety and Motor Vehicles the vehicle identification number; the license tag number; the registration number; and a description, including color scheme, of the motor vehicle, trailer, mobile home, or manufactured home. If a sexual predator's place of residence is a vessel, live-aboard vessel, or houseboat, as defined in chapter 327, the sexual predator shall also provide to the Department of Highway Safety and Motor Vehicles the hull identification number; the manufacturer's serial number; the name of the vessel, live-aboard vessel, or houseboat; the registration number; and a description, including color scheme, of the vessel, live-aboard vessel, or houseboat.

2.  Pay the costs assessed by the Department of Highway Safety and Motor Vehicles for issuing or renewing a driver's license or identification card as required by this section.

3.  Provide, upon request, any additional information necessary to confirm the identity of the sexual predator, including a set of fingerprints.

(g)  Each time a sexual predator's driver's license or identification card is subject to renewal, and within 48 hours after any change of the predator's residence, the predator shall report in person to a driver's license office, and shall be subject to the requirements specified in paragraph (f). The Department of Highway Safety and Motor Vehicles shall forward to the department and to the Department of Corrections all photographs and information provided by sexual predators. Notwithstanding the restrictions set forth in s. 322.142, the Department of Highway Safety and Motor Vehicles is authorized to release a reproduction of a color-photograph or digital-image license to the Department of Law Enforcement for purposes of public notification of sexual predators as provided in this section.

(h)  If the sexual predator initially registers at an office of the department, the department must notify the sheriff and the state attorney of the county and, if applicable, the police chief of the municipality, where the sexual predator maintains a residence within 48 hours after the sexual predator registers with the department.

(i)  A sexual predator who intends to establish residence in another state or jurisdiction shall notify the sheriff of the county of current residence or the department within 48 hours before the date he or she intends to leave this state to establish residence in another state or jurisdiction. The notification must include the address, municipality, county, and state of intended residence. The sheriff shall promptly provide to the department the information received from the sexual predator. The department shall notify the statewide law enforcement agency, or a comparable agency, in the intended state or jurisdiction of residence of the sexual predator's intended residence. The failure of a sexual predator to provide his or her intended place of residence is punishable as provided in subsection (10).

(j)  A sexual predator who indicates his or her intent to reside in another state or jurisdiction and later decides to remain in this state shall, within 48 hours after the date upon which the sexual predator indicated he or she would leave this state, notify the sheriff or the department, whichever agency is the agency to which the sexual predator reported the intended change of residence, of his or her intent to remain in this state. If the sheriff is notified by the sexual predator that he or she intends to remain in this state, the sheriff shall promptly report this information to the department. A sexual predator who reports his or her intent to reside in another state or jurisdiction, but who remains in this state without reporting to the sheriff or the department in the manner required by this paragraph, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(k)1.  The department is responsible for the on-line maintenance of current information regarding each registered sexual predator. The department must maintain hotline access for state, local, and federal law enforcement agencies to obtain instantaneous locator file and offender characteristics information on all released registered sexual predators for purposes of monitoring, tracking, and prosecution. The photograph and fingerprints do not have to be stored in a computerized format.

2.  The department's sexual predator registration list, containing the information described in subparagraph (a)1., is a public record. The department is authorized to disseminate this public information by any means deemed appropriate, including operating a toll-free telephone number for this purpose. When the department provides information regarding a registered sexual predator to the public, department personnel must advise the person making the inquiry that positive identification of a person believed to be a sexual predator cannot be established unless a fingerprint comparison is made, and that it is illegal to use public information regarding a registered sexual predator to facilitate the commission of a crime.

3.  The department shall adopt guidelines as necessary regarding the registration of sexual predators and the dissemination of information regarding sexual predators as required by this section.

(l)  A sexual predator must maintain registration with the department for the duration of his or her life, unless the sexual predator has had his or her civil rights restored, or has received a full pardon or has had a conviction set aside in a postconviction proceeding for any felony sex offense that met the criteria for the sexual predator designation. However, a sexual predator who was designated as a sexual predator by a court before October 1, 1998, and who has been lawfully released from confinement, supervision, or sanction, whichever is later, for at least 10 years and has not been arrested for any felony or misdemeanor offense since release, may petition the criminal division of the circuit court in the circuit in which the sexual predator resides for the purpose of removing the sexual predator designation. A sexual predator who was designated a sexual predator by a court on or after October 1, 1998, who has been lawfully released from confinement, supervision, or sanction, whichever is later, for at least 20 years, and who has not been arrested for any felony or misdemeanor offense since release may petition the criminal division of the circuit court in the circuit in which the sexual predator resides for the purpose of removing the sexual predator designation. The court may grant or deny such relief if the petitioner demonstrates to the court that he or she has not been arrested for any crime since release, the requested relief complies with federal standards applicable to the removal of the designation as a sexual predator, and the court is otherwise satisfied that the petitioner is not a current or potential threat to public safety. The state attorney in the circuit in which the petition is filed must be given notice of the petition at least 3 weeks before the hearing on the matter. The state attorney may present evidence in opposition to the requested relief or may otherwise demonstrate the reasons why the petition should be denied. If the court denies the petition, the court may set a future date at which the sexual predator may again petition the court for relief, subject to the standards for relief provided in this paragraph. Unless specified in the order, a sexual predator who is granted relief under this paragraph must comply with the requirements for registration as a sexual offender and other requirements provided under s. 943.0435 or s. 944.607. If a petitioner obtains an order from the court that imposed the order designating the petitioner as a sexual predator which removes such designation, the petitioner shall forward a certified copy of the written findings or order to the department in order to have the sexual predator designation removed from the sexual predator registry.

(7)  COMMUNITY AND PUBLIC NOTIFICATION.--

(a)  Law enforcement agencies must inform members of the community and the public of a sexual predator's presence. Upon notification of the presence of a sexual predator, the sheriff of the county or the chief of police of the municipality where the sexual predator establishes or maintains a permanent or temporary residence shall notify members of the community and the public of the presence of the sexual predator in a manner deemed appropriate by the sheriff or the chief of police. Within 48 hours after receiving notification of the presence of a sexual predator, the sheriff of the county or the chief of police of the municipality where the sexual predator temporarily or permanently resides shall notify each licensed day care center, elementary school, middle school, and high school within a 1-mile radius of the temporary or permanent residence of the sexual predator of the presence of the sexual predator. Information provided to members of the community and the public regarding a sexual predator must include:

1.  The name of the sexual predator;

2.  A description of the sexual predator, including a photograph;

3.  The sexual predator's current address, including the name of the county or municipality if known;

4.  The circumstances of the sexual predator's offense or offenses; and

5.  Whether the victim of the sexual predator's offense or offenses was, at the time of the offense, a minor or an adult.

This paragraph does not authorize the release of the name of any victim of the sexual predator.

(b)  The sheriff or the police chief may coordinate the community and public notification efforts with the department. Statewide notification to the public is authorized, as deemed appropriate by local law enforcement personnel and the department.

(c)  The department shall notify the public of all designated sexual predators through the Internet. The Internet notice shall include the information required by paragraph (a).

(d)  The department shall adopt a protocol to assist law enforcement agencies in their efforts to notify the community and the public of the presence of sexual predators.

(8)  VERIFICATION.--The department and the Department of Corrections shall implement a system for verifying the addresses of sexual predators. The system must be consistent with federal requirements that apply to the laws of this state governing sexual predators. The Department of Corrections shall verify the addresses of sexual predators who are not incarcerated but who reside in the community under the supervision of the Department of Corrections. The department shall verify the addresses of sexual predators who are not under the care, custody, control, or supervision of the Department of Corrections.

(9)  IMMUNITY.--When the court has made a written finding that an offender is a sexual predator, an elected or appointed official, public employee, school administrator or employee, agency, or any individual or entity acting at the request or upon the direction of any law enforcement agency is immune from civil liability for damages resulting from the release of information under this section.

(10)  PENALTIES.--

(a)  Except as otherwise specifically provided, a sexual predator who fails to register or who fails, after registration, to maintain, acquire, or renew a driver's license or identification card or provide required location information, or who otherwise fails, by act or omission, to comply with the requirements of this section, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b)  A sexual predator who has been convicted of or found to have committed, or has pled nolo contendere or guilty to, regardless of adjudication, any violation of s. 794.011(2), (3), (4), (5), or (8); s. 794.023; s. 800.04; s. 827.071; s. 847.0133; or s. 847.0145, or a violation of a similar law of another jurisdiction, when the victim of the offense was a minor, and who works, whether for compensation or as a volunteer, at any business, school, day care center, park, playground, or other place where children regularly congregate, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c)  Any person who misuses public records information relating to a sexual predator, as defined in this section, or a sexual offender, as defined in s. 943.0435 or s. 944.607, to secure a payment from such a predator or offender; who knowingly distributes or publishes false information relating to such a predator or offender which the person misrepresents as being public records information; or who materially alters public records information with the intent to misrepresent the information, including documents, summaries of public records information provided by law enforcement agencies, or public records information displayed by law enforcement agencies on web sites or provided through other means of communication, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 1, ch. 93-277; s. 1, ch. 95-264; s. 54, ch. 95-283; s. 61, ch. 96-388; s. 5, ch. 97-299; s. 3, ch. 98-81; s. 1, ch. 98-267.

775.24  Duty of the court to uphold laws governing sexual predators and sexual offenders.--

(1)  The Legislature finds that, for the purpose of approving a plea agreement or for other reasons, certain courts enter orders that effectively limit or nullify requirements imposed upon sexual predators and sexual offenders pursuant to the laws of this state and prevent persons or entities from carrying out the duties imposed, or exercising the authority conferred, by such laws. The laws relating to sexual predators and sexual offenders are substantive law. Furthermore, the Congress of the United States has expressly encouraged every state to enact such laws, and has provided that, to the extent that a state's laws do not meet certain federal requirements, the state will lose significant federal funding provided to the state for law enforcement and public safety programs. Unless a court that enters such an order determines that a person or entity is not operating in accordance with the laws governing sexual predators or sexual offenders, or that such laws or any part of such laws are unconstitutional or unconstitutionally applied, the court unlawfully encroaches on the Legislature's exclusive power to make laws and places at risk significant public interests of the state.

(2)  If a person meets the criteria in this chapter for designation as a sexual predator or meets the criteria in s. 943.0435, s. 944.606, s. 944.607, or any other law for classification as a sexual offender, the court may not enter an order, for the purpose of approving a plea agreement or for any other reason, which:

(a)  Exempts a person who meets the criteria for designation as a sexual predator or classification as a sexual offender from such designation or classification, or exempts such person from the requirements for registration or community and public notification imposed upon sexual predators and sexual offenders;

(b)  Restricts the compiling, reporting, or release of public records information that relates to sexual predators or sexual offenders; or

(c)  Prevents any person or entity from performing its duties or operating within its statutorily conferred authority as such duty or authority relates to sexual predators or sexual offenders.

(3)  If the court enters an order that affects an agency's performance of a duty imposed under the laws governing sexual predators or sexual offenders, or that limits the agency's exercise of authority conferred under such laws, the Legislature strongly encourages the affected agency to file a motion in the court that entered such order. The affected agency may, within 60 days after the receipt of any such order, move to modify or set aside the order or, if such order is in the nature of an injunction, move to dissolve the injunction. Grounds for granting any such motion include, but need not be limited to:

(a)  The affected agency was not properly noticed.

(b)  The court is not authorized to enjoin the operation of a statute that has been duly adjudged constitutional and operative unless the statute is illegally applied or unless the statute or the challenged part of it is unconstitutional on adjudicated grounds.

(c)  Jurisdiction may not be conferred by consent of the parties.

(d)  To the extent that the order is based upon actions the agency might take, the court's order is premature and, if and when such actions are taken, these actions may be challenged in appropriate proceedings to determine their enforceability.

(e)  The injunction affects the public interest and would cause injury to the public.

(f)  The order creates an unenforceable, perpetual injunction.

(g)  The order seeks to restrict the agency in the performance of its duties outside the court's territorial jurisdiction.

History.--s. 4, ch. 98-81.

775.25  Prosecutions for acts or omissions.--A sexual predator or sexual offender who commits any act or omission in violation of s. 775.21, s. 943.0435, s. 944.605, s. 944.606, s. 944.607, or s. 947.177 may be prosecuted for the act or omission in the county in which the act or omission was committed, the county of the last registered address of the sexual predator or sexual offender, or the county in which the conviction occurred for the offense or offenses that meet the criteria for designating a person as a sexual predator or sexual offender. In addition, a sexual predator may be prosecuted for any such act or omission in the county in which he or she was designated a sexual predator.

History.--s. 5, ch. 98-81.