Sentencing Enhancements for Habitual Felony Offenders

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The Habitual Felony Offender (HFO) sentencing scheme under Fla. Stat. 775.084 has the effect of increasing the maximum sentences available to the Court for various levels of felony offenses, to wit:

  • Life felony and First-degree felonies are both punishable by life in prison. First-degree felonies under the criminal punishment code are punishable by up to 30 years in prison.
  • Second degree felonies are increased from 15 years to 30 years in prison.
  • Third degree felonies are increased from 5 years to 10 years in prison.

Requirements for Possible Enhanced Sentence

In order for a defendant to qualify as an HFO, the person present before the court for sentencing must

  • have two prior felony convictions with one of those convictions cannot be for possession or purchase of a controlled substance,
  • the current conviction cannot be for possession or purchase of a controlled substance, and
  • the current conviction must have occurred with while in prison, on probation, on community control, or within five years from release from any form of incarceration or supervision.

Procedure for Possible Enhanced Sentence

If the person qualifies as a Habitual Felony Offender, in order for the court to be able to sentence the defendant under this scheme, the State must serve notice to the defendant and his/her attorney that they are seeking a HFO sentence. The court must also order and consider a Presentence Investigation Report. The court then must hold a hearing to determine by a preponderance of the evidence whether the Defendant qualifies as an HFO.

Light behind prison cell bars. Jail punishment and imprisonmentIf the court finds that the person does qualify as an HFO, the court must sentence the defendant as such unless the court finds that such a sentence is not necessary for the protection of the public.

The Sentence and Gain Time

Assuming that a court finds the defendant qualifies as an HFO and that he or she should be sentenced as such, the court could impose any sentence within the increased maximum for the various levels of felonies. For example, for a second-degree felony, the court could sentence an HFO defendant up to 30 years in prison or as little as probation only. However, with HFO sentences, it is highly unlikely that a court simply imposes probation or community control. The State generally seeks these sentences for individuals who they find deserving of more punishment than for which the Criminal Punishment Code would allow.

Additionally, for multiple crimes that were committed during the same criminal episode, HFO sentences cannot be further lengthened by making them run consecutively. Mason v. State, 288 So.3d 101 (Fla. 5th DCA 2019).

However, one of the good parts of an HFO sentence is that the person so sentenced is eligible to earn gain-time while in prison. At present, Fla. Stat. 944.275(4)(a) allows for up to 10 days of gain-time for every month of a sentence. For example, a person sentenced to 30 months in the Department of Corrections would be eligible to receive 300 days of gain-time over the course of that sentence.

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Adam Bantner, II is a Board Certified Criminal Trial Law Attorney representing those accused of crimes in Hillsborough and Polk Counties. When you are facing criminal charges, you want an expert in your corner. The Florida Bar has recognized Adam as an expert criminal defense attorney.

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