Let’s talk about hate crimes in Florida. In Florida and, more broadly, the United States, we have a powerful First Amendment right to say just about anything we please. It can be beautiful poetry or prose or it can be ugly, insensitive racial slurs. It’s one of the tradeoffs of living in a free society that we sometimes have to endure some incredibly offensive language.

With that said, Florida has determined that crimes that evidence being motivated by prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, national origin, homeless status, or advanced age of the victim shall be enhanced in severity. In short, a crime evidencing such prejudice will be increased in severity by one level, i.e., a second-degree misdemeanor because a first, a first-degree misdemeanor becomes a third-degree felony, and so forth.

  • 775.085. Evidencing prejudice while committing offense; reclassification

(1) (a) The penalty for any felony or misdemeanor shall be reclassified as provided in this subsection if the commission of such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, national origin, homeless status, or advanced age of the victim:

  1. A misdemeanor of the second degree is reclassified to a misdemeanor of the first degree.
  2. A misdemeanor of the first degree is reclassified to a felony of the third degree.
  3. A felony of the third degree is reclassified to a felony of the second degree.
  4. A felony of the second degree is reclassified to a felony of the first degree.
  5. A felony of the first degree is reclassified to a life felony.

(b) As used in paragraph (a), the term:

  1. “Advanced age” means that the victim is older than 65 years of age.
  2. “Homeless status” means that the victim:
  3. Lacks a fixed, regular, and adequate nighttime residence; or
  4. Has a primary nighttime residence that is:

(I) A supervised publicly or privately operated shelter designed to provide temporary living accommodations; or

(II) A public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.

(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 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.


Is Florida’s Hate-Crime Statute Constitutional?

The short answer is yes, it is Constitutional. However, the Florida Supreme Court had to narrowly read the statute to save it from infringing upon our First Amendment rights to be jerks (my words, not theirs, lol). In State v. Stalder, 630 So.2d 1072 (Fla. 1994), Stalder assaulted a Jewish lawyer. Prior to battering him, he said things like “Jew boy, you fat Jewish lawyer get the hell off my property….’ and ‘Jewish kike, come on Jewish lawyer … I’m going to kick your ass….’…” State v. Stalder, 630 So.2d 1072 (Fla. 1994). These statements were made prior to Stalder hitting the alleged victim.

Stalder challenged the hate crime enhancement on First Amendment grounds. The Supreme Court upheld the statute by making a difference between those crimes that are motivated by a particular prejudice and those crimes that may be motivated by something wholly unrelated but where the assailant may make derogatory comments during the commission of the crime. Those in the first class are enhanceable. Those in the second class are not enhanceable.

The Court held:

Based on the foregoing, we hold that section 775.085, Florida Statute (1989), applies only to bias-motivated crimes. So read, the statute is constitutional. A bias-motivated crime for purposes of this statute is any crime wherein the perpetrator intentionally selects the victim because of the victim’s “race, color, ethnicity, religion, or national origin.”

It may seem doubly vile to members of our legal community to denigrate another for being a “Jewish lawyer,” as Mr. Stalder allegedly did, but such an act standing alone is every citizen’s right–so long as the First Amendment breathes. To assault another solely because he or she is a “Jewish lawyer,” on the other hand, is no one’s right. When protected speech translates into criminal conduct, even the Free Speech Clause balks. “While the First Amendment confers on each citizen a powerful right to express oneself, it gives the [citizen] no boon to jeopardize the health, safety, and rights of others.”… State v. Stalder, 630 So.2d 1072 (Fla. 1994).


Jury Instruction

Because of this limitation read into the statute by the Supreme Court, the jury instructions for the enhancement reflect this modification. In order for the State to convict a person of hate crime, they must prove two elements (in addition to the elements of the underlying crime) beyond a reasonable doubt. They are:

  1. The Defendant perceived, knew, or had reasonable ground to perceive or know (victim’s) [race] [color] [ancestry] [ethnicity] [religion] [sexual orientation] [national origin] [homeless status] [mental or physical disability] [advanced age], and
  2. The Defendant intentionally selected (victim) because of that perception or knowledge.


Should the State prove these two elements in addition to the elements of the underlying crime, the crime will be enhanced as referenced in the statute.

Want to learn more? Reach out.