The Florida Anti-Murder Act's Impact on VOP Cases

Florida Anti-Murder Act

Effective March 12, 2007, the Florida legislature passed the Anti-Murder Act (AMA) which addresses concerns about the release of violent felony offenders of special concern and certain other individuals accused of committing a Florida violation of probation or community control.

The Florida Department of Corrections attempts to identify those defendants affected by the Florida Anti-Murder Act as Violence Felony Offenders of Special Concern (VFO) by marking the term "VFO" on their violation of probation or community control affidavit.

If at the violation of probation hearing, the court finds that the defendant poses a danger to the community based on a list of criteria described below, then the court must revoke probation or community control and sentence the defendant up to the legal maximum sentence allowed for the underlying offense. If after the hearing, the court finds that the defendant does not pose a danger to the community, the court may revoke, modify or continue the probation or community control.

Further, the Florida Anti-Murder Act provides certain requirements on violent felony offenders of special concern, defendant on felony probation who are arrested for certain listed offenses, and defendants who are on felony probation who have previously been found to be on probation for certain listed offenses, or are classified as sexual predators, three-time violent felony offenders, habitual violence felony offenders.

Who Qualified Under Florida Law as a Violence Felony Offender of Special Concern (VFO)?

Under Florida law, Violence Felony Offenders of Special Concern (VFO) include:

1. Any defendant on probation or community control for a qualifying offense committed on or after March 12, 2007; or
2. Any defendant on probation or community control for any felony committed on or after March 12, 2007 if:
   • The defendant has prior convictions for any qualifying offense; or
   • The defendant has a committed qualifying offense (or is determined to have done so by the greater weight of of the evidence during a volation of probation or community control hearing).
3. The defendant is on probation or community control for any felony (regardless of the date) if both of the following conditions are met:

• The defendant was previously designated as one of the following:
  • a Habitual Violence Felony Offender (HVFO), or
  • a Third-Time Violence Felony Offender, or
  • a Sexual Predator; AND
• The defendant has committed a qualifying offense on or after March 12, 2007 as determined by the greater weight of the evidence during a violation of probation or community control hearing.

Prohibitions on Release under Florida Statute Section 948.06(4) and 948.06(8)(d)

The following defendants who are on felony probation or community control may not be released on bail or any other form of pre-trial release prior to resolution of the violation of probation or community control hearing:

1. Any defendant who qualifies as a VFO or violent felony offender of special concern (except when the violation if based solely on the failure to pay costs, fines or restitution);
2. Any defendant on probation or community control for any felony committed on or after March 12, 2007 who is arrested for a qualifying offense;
3. Any defendant on felony probation or community control (regardless of the date of offense) who meets the following two conditions:
   • the defendant has previously been designated as one of the following:
     • a Habitual Violence Felony Offender, or
     • a Third-Time Violent Felony Offender or
     • a Sexual Predator, AND
   • the defendant has been arrested for a qualifying offense committed on or after March 12, 2007.
4. The Court SHALL not dismiss the Florida violation of probation or violation of community control affidavit against any qualifying defendant without holding a recorded violation of probation or community control hearing during which both the prosecutor for the State of Florida and the defendant are properly represented.

Danger to the Community Finding under Florida Statutes Section 948.06(8)(e)

If the Court determines that a Violent Felony Offender of Special Concern (VFO) has committed a violation of probation or violation of community control (other than failure to pay restitution, fines or court costs) then the Court SHALL do all of the following:

1. Make written findings to show whether or not the violent felony offender of special concern does or does not pose a danger to the community;
2. Decide whether to revoke probation or community control with the following requirements:
   • If the Court finds that the defendant does pose a danger to the community, then the Court MUST revoke probation or community control and MUST sentence the defendant to the statutory maximum or longer if permitted by law.
   • If the Court finds that the defendant does NOT pose a danger to the community then the court MAY revoke, modify, or continue the defendant on probation or community control.

The Florida Anti-Murder Act provides that when a violent felony offender of special concern and certain other offenders are arrested for a violation of probation or community control the warrant for violation can not be dismissed before the violation hearing, and the defendant may not be granted pre-hearing release.

What Qualifies as a Qualifying Offense under Florida Statute Section 948.06(8)(c)?

The following offenses constitute qualifying offenses under Florida Statutes Section 948.06:

For purposes of this section, the term "qualifying offense" means any of the following:

1. Kidnapping or attempted kidnapping under Florida Statute Section 787.01;
2. False imprisonment of a child under the age of 13 under Florida Statute Section 787.02;
3. Luring or enticing a child under Florida Statute Section 787.025(2)(b) or (c);
4. Murder or attempted murder under Florida Statute Section 782.04;
5. Attempted felony murder under Florida Statute Section 782.051;
6. Manslaughter under Florida Statute Section 782.07;
7. Aggravated battery or attempted aggravated battery under Florida Statute Section 784.045;
8. Sexual battery or attempted sexual battery under Florida Statute Section 794.011 (2), (3), (4), or (8)(b) or (c);
9. Lewd or lascivious battery or attempted lewd or lascivious battery under Florida State Statute Section 800.04(4);
10. Lewd or lascivious molestation under Florida State Statute 800.04(5)(b) or (c);
11. Lewd or lascivious conduct under Florida State Statute 800.04(6)(b)
12. Lewd or lascivious exhibition under Florida State Statute 800.04(7)(b);
13. Lewd or lascivious exhibition on computer under Florida State Statute 847.0135(5)(b);
14. Robbery or attempted robbery under Florida State Statute 812.13;
15. Carjacking or attempted carjacking under Florida State Statute 812.133;
16. Home invasion robbery or attempted home invasion robbery under Florida Statute Section 812.135;
17. Robbery or attempted robbery under Florida Statute Section 812.13;
18. Carjacking or attempted carjacking under Florida Statute Section 812.133;
19. Home invasion robbery or attempted home invasion robbery under Florida Statute Section 812.135;
20. Lewd or lascivious offense upon or in the presence of an elderly or disabled person or attempted lewd or lascivious offense upon or in the presence of an elderly or disabled person under Florida Statute Section 825.1025;
21. Sexual performance by a child or attempted sexual performance by a child under Florida Statute Section 827.071;
22. Computer pornography under Florida Statute Section 847.0135(2) or (3);
23. Transmission of child pornography under Florida Statute Section 847.0137;
24. Selling or buying of minors under Florida Statute Section 847.0145;
25. Poisoning food or water under Florida Statute Section 859.01;
26. Abuse of a dead human body under Florida Statute Section 872.06;
27. Any burglary offense or attempted burglary offense that is either a first degree felony or second degree felony under Florida Statute Section 810.02(2) or (3);
28. Arson or attempted arson under Florida Statute Section 806.01(1);
29. Aggravated assault under Florida Statute Section 784.021;
30. Aggravated stalking under Florida Statute Section 784.048(3), (4), (5), or (7);
31. Aircraft piracy under Florida Statute Section 860.16;
32. Unlawful throwing, placing, or discharging of a destructive device or bomb under Florida Statute Section 790.161 (2), (3), or (4);
33. Treason under Florida Statute Section 876.32;
34. Any offense committed in another jurisdiction which would be an offense listed in this paragraph if that offense had been committed in this state.

Jessica Lunsford Act

Effective on September, 1, 2005, the Florida legislature passed the Jessica Lunsford Act which attempts to addresses concerns about the release of high-risk sexual offenders who allegedly violated a condition of probation or community control.

When an individual is on probation or community control for particular sex crime offenses, or when the individual is a registered sex offender or registered sexual predator, and is arrested for violation probation, the court must hold a hearing (commonly called the “Danger Hearing”) and make a finding that the offender is not a danger to the public before releasing him on bail or a bond. The Danger Hearing may not be held sooner than twenty-four (24) hours after arrest and the prosecutor can not ask for a delay unless making a “good cause” showing.

The Defendant has the right to be heard in person or through counsel, the right to present evidence, and to cross-examine witnesses. Certain factors are listed for the court’s consideration in determining whether the defendant poses a danger to the public.