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Violent Felony Offender of Special Concern

Does your paperwork show that you are designated as a “VFO SC”? If so, then you need an attorney well versed in the statutory intricacies for anyone who qualify as a violent felony offender of special concern (VFO SO) under section 948.06, Florida Statutes.

For any violation of probation case, even if the defendant is not designated as a VFO SC, the statutory scheme provides that the court “may impose any sentence that it could have imposed at the time the offender was placed on probation or community control.” § 948.012(2)(b), Fla. Stat. (2015). This means that if you violate probation for a third-degree felony, you can be sentenced to five years in prison.

Despite the fact that courts can impose that statutory maximum for a probation violation, the courts rarely do so. But any violation of probation allegation for a VFO SC, the chances of being detained while the probation violation case is pending and for a longer period after the probation hearing is often inevitable. Because the stakes are so high, it is especially important to have an experienced criminal defense attorney in these types of cases.

Attorney for VFO SC Probation Violations in Tampa, FL

The attorneys at the Sammis Law Firm are experienced in fighting felony violation of probation cases in Tampa and throughout Hillsborough County, FL. Our lawyers also fight VOP cases throughout the greater Tampa Bay area including Hernando County, Pasco County, Pinellas County, Manatee County, Sarasota County and Polk County, FL.

If your probation officer indicates that you violated probation, you should contact an attorney before the warrant for your arrest is issued. An attorney can help you come into compliance with your probation or fight any allegation that you committed a new felony or misdemeanor crime. 

At a probation hearing, the court must first determine if the defendant violated probation. Second, the court must determine if the offender qualifies for the designation of VFO SC. Third, the court must determine if the offender poses a danger to the community. § 948.06(8)(e), Fla. Stat.

If the court concludes the offender does pose a danger, the court is required to revoke probation and sentence the offender “up to the statutory maximum, or longer if permitted by law.” § 948.06(8)(e)2.a., Fla. Stat. (2014). On the other hand, if the court finds that the violent felony offender of special concern does not pose a danger to the community, then the court may revoke, modify, or continue the probation or community control or place the probationer into community control. § 948.06(8)(e)(2)(b); see also Fla. R.Crim. P. 3.790(b)(3)(D).

Let us put our experience to work for you. Call (813) 250-0500 today to discuss your case. 


Importance of the Written Findings in a VFO SC Case

The statute for a probation revocation involving a violent felony offender of special concern (VFO SC) under section 948.06, Florida Statutes required that if an individual meets the requirements for that designation, the trial court must make written findings as to whether the individual is a danger to the community. See § 948.06(8)(e) 1., Fla. Stat. (2015).

When the trial court fails to make the required written findings, then the case can be appealed to determine the proper remedy for that statutory noncompliance. The defense attorney will often ask the court to strike the designation as a violent felony offender of special concern and vacate any prison sentence imposed in favor of reinstating probation. Furthermore, even before an allegation of a probation violation, if the court improperly imposed a designation as a VFO SC, then the defendant can file a motion to correct

When the trial court fails to make the required written findings, then the case can be appealed to determine the proper remedy for that statutory noncompliance. The defense attorney will often ask the court to strike the designation as a violent felony offender of special concern and vacate any prison sentence imposed in favor of reinstating probation.

Furthermore, even before an allegation of a probation violation, if the court improperly imposed a designation as a VFO SC, then the defendant can file a motion to correct the sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b).

Whether a trial court erred in designating a defendant as a violent felony offender of special concern is reviewed by an appellate court de novo. See Jeffers v. State, 106 So.3d 37, 38 (Fla. 2d DCA 2013).


History of the “Violent Felony Offender of Special Concern” Provisions

Section 948.06 is an important part of the Anti–Murder Act (“the Act”) enacted in 2007 as chapter 2007–2, Section 5, Laws of Florida. The provisions of the Anti-Murder Act in section 948.06 require an individual qualifying as a violent felony offender of special concern to be denied pretrial release when accused of violations of non-monetary conditions of probation.

The statute also requires imposition of mandatory incarceration in certain circumstances “to obviate the thought-to-be undesirable spectacle of a person on probation for a designated serious crime violating that trust only to be restored to the same or equivalent status.” State v. Martinez, 103 So.3d 1013, 1016 (Fla. 3d DCA 2012).

Compliance with these statutory requirements ensures that the community is protected from further criminal conduct, including murder, by those individuals designated violent felony offenders of special concern until their hearings or until those designated violators, who are found to pose a danger to the community, are released from prison.


The Two Sections of Florida Statute Section 948.06(8)

Section 948.06(8) contains two sections. The first section of Florida Statute Section 948.06(8) deals with provisions related to who qualifies as a violent felony offender of special concern. The statute includes provisions for pretrial detention for those who qualify. See § 948.06(8)(b)-(d), Fla. Stat. (2015); see also Fla. R. Crim. P. 3.790(b)(3)(A).

The second section of Florida Statute Section 948.06(8) sets out the rules for defendants who are found by the trial court to be in violation of a non-monetary condition and who are violent felony offenders of special concern found to pose a danger to the community. See § 948.06(8)(e), Fla. Stat. (2015); see also Fla. R. Crim. P. 3.790(b)(3)(B).

The court in Barber v. State, 207 So. 3d 379, 383 (Fla. Dist. Ct. App. 2016) explained the connection between these two sections:

“The designation under the first part of the statute does not depend on findings that the individual poses a danger to the community. However, for sentencing purposes under the second part of the statute, the designation under the first part is a necessary ingredient. Hence, the designation under the first part is applicable and has significance in the pretrial context before the case progresses to sentencing. If the defendant is found to be a danger to the community, that finding results in the designation under the second part of the statute. If not, there is nothing in the statute to indicate that the designation under the first part must be eliminated.”


Sufficiency of Written Findings in VFO SC Cases

In Bailey v. State, 136 So.3d 617 (Fla. 2d DCA 2013), the court was concerned with the sufficiency of the written findings filed by the trial court to support its conclusion that the defendant qualified as a violent felony offender of special concern who posed a danger to the community under section 948.06(8)(e). Id. at 620–21.

The court noted that the defendant did not contest the fact that he qualified for designation under sections 948.06(b)-(d). Id. at 619. The court held that, because the written findings were insufficient for the designation under section 948.06(8)(e), the designation must be stricken. Id. at 620–21. There is nothing in the opinion indicating that the court meant to strike the designation under sections 948.06(8)(b)-(d).

The statute specifically provides that “the court shall” make written findings if the court determines that a violent felony offender of special concern has committed a violation of probation. § 948.06(8)(e), Fla. Stat. (2015). The written findings are substantive provisions that are required in order to impose a prison sentence for certain probation violators for the protection of the public. For this reason, the written findings requirement of section 948.06(8)(e) are mandatory, not discretionary.

The statute provides that there are a number of factors the trial court should consider in making the dangerousness determination, and that decision must be based on one or more of them. § 948.06(8)(e)1.a.-e., Fla. Stat.

If the designation as a violent felony offender of special concern fails to comply with the statutory requirements found in section 948.06(8)(e), Florida Statutes, the designation should be stricken by the court if the appropriate motions or appeals are filed.

The criminal defense attorney for the defendant will often seek relief by filing a motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) raising issues regarding his designation as a violent felony offender of special concern other than the lack of written findings.


Statutory Requirements in Revocation Proceedings in a VFO SC Case

Section 948.06(8) imposes additional requirements on the trial court when a probationer before it on revocation proceedings is a violent felony offender of special concern. The statute first defines who qualifies as a “violent felony offender of special concern”:

(a) In addition to complying with the provisions of subsections (1)-(7), this subsection provides further requirements regarding a probationer or offender in community control who is a violent felony offender of special concern. The provisions of this subsection shall control over any conflicting provisions in subsections (1)-(7). For purposes of this subsection, the term “convicted” 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.

(b) For purposes of this section and ss. 903.0351, 948.064, and 921.0024, the term “violent felony offender of special concern” means a person who is on:

    1. Felony probation or community control related to the commission of a qualifying offense committed on or after the effective date of this act;
    2. Felony probation or community control for any offense committed on or after the effective date of this act, and has previously been convicted of a qualifying offense;
    3. Felony probation or community control for any offense committed on or after the effective date of this act, and is found to have violated that probation or community control by committing a qualifying offense;
    4. Felony probation or community control and has previously been found by a court to be a habitual violent felony offender as defined in s.775.084(1)(b) and has committed a qualifying offense on or after the effective date of this act;
    5. Felony probation or community control and has previously been found by a court to be a three-time violent felony offender as defined in s. 775.084(1)(c) and has committed a qualifying offense on or after the effective date of this act; or
    6. Felony probation or community control and has previously been found by a court to be a sexual predator under s. 775.21 and has committed a qualifying offense on or after the effective date of this act.

§ 948.06(8).

The statute then provides a list of nineteen categories of offenses that are “qualifying offenses” under the statute. § 948.06(8)(c). Subsection (d) then requires that probationers who qualify as violent felony offenders of special concern remain in custody pending a hearing on any alleged violation of probation or community control, and it sets forth specific requirements for the conduct of a revocation hearing involving a violent felony offender of special concern.

Lastly, the statute requires that the trial court shall make certain findings in writing if the court finds that a violent felony offender of special concern has violated probation or community control.

(e) If the court, after conducting the hearing required by paragraph (d), determines that a violent felony offender of special concern has committed a violation of probation or community control other than a failure to pay costs, fines, or restitution, the court shall:

    1. Make written findings as to whether or not the violent felony offender of special concern poses a danger to the community. In determining the danger to the community posed by the offender's release, the court shall base its findings on one or more of the following:

a. The nature and circumstances of the violation and any new offenses charged.
b. The offender's present conduct, including criminal convictions.
c. The offender's amenability to non-incarcerative sanctions based on his or her history and conduct during the probation or community control supervision from which the violation hearing arises and any other previous supervisions, including disciplinary records of previous incarcerations.
d. The weight of the evidence against the offender.
e. Any other facts the court considers relevant.


Sentencing Options for the Court in a VFO SC Case

The court must decide whether to revoke the probation or community control.

a. If the court has found that a violent felony offender of special concern poses a danger to the community, the court shall revoke probation and shall sentence the offender up to the statutory maximum, or longer if permitted by law.

b. If the court has found that a violent felony offender of special concern does not pose a danger to the community, the court may revoke, modify, or continue the probation or community control or may place the probationer into community control as provided in this section. § 948.06(8)(e) (emphasis added).


Problems with Pre-Printed Forms for Compliance with Section 948.06(8)

Because the statute is so complicated, the courts will often use a written order rendered in a document entitled “Written Findings Pursuant to Section 948.06(8), Fla. Statutes.” This document is a pre-printed form with blanks for listing the defendant's name and the applicable case number. The body of the form provides:

The body of the form often provides:

NOW on this day, a recorded hearing having been held, and the state and the above-captioned defendant being present and represented by counsel, the Court does find that:

  • _____ the defendant has admitted or been found in violation of probation or community control;
  • _____ the defendant is a violent felony offender of special concern and ____ does ____ does not pose a danger to ______________ the community;
  • The state has stipulated that the defendant does not pose a danger to the community at this time and the state agrees to the disposition ordered herein;
  • the defendant is a violent felony offender of special concern but the violations remaining consist only of a failure to pay costs, fines or restitution

By using the forms, the courts are then given options to base its decision on one or more of the following factors checked and/or explained below:

  • _____ the defendant has stipulated that he/she poses a threat to the community;
  • _____ the nature and circumstances of the violation and any new criminal offenses charged indicate that the offender poses a threat to the community;
  • ______ the offender's present conduct, including criminal convictions indicate that the offender poses a threat to the community;
  • _____ the offender poses a threat to the community due to a lack of amenability to non-incarcerative sanctions based on the following:
  • _____ the offender's history and conduct during the current supervision;
  • _____ the offender's history and conduct during previous supervisions;
  • _____ the offender's disciplinary record from previous incarcerations;
  • ______the weight of the evidence against the offender indicates that the offender poses a threat to the community;
  • _____ other facts the Court considers relevant:

Using this form, the trial court is presumably expected to place an “X” in the appropriate blank or blanks based on the findings it makes for the probationer before it.

The courts have found that given the intricacies of section 948.06(8), the use of such a pre-printed form is sufficient to demonstrate that the trial court complied with its statutory obligation to make specific findings on the enumerated issues. Even when such a form is used, the trial court's written findings must still comply with the statutory requirements.

For instance, it is not enough for the court to find that the defendant was a violent felony offender of special concern who posed a danger to the community. Instead, at a minimum, the court must also indicate which specific facts listed in section 948.06(8)(e) it was relying on to find that the defendant qualified as such.

The trial court must also orally pronounce any findings that were consistent with any of the statutory requirements. Cf. Martin v. State, 87 So.3d 813 (Fla. 2d DCA 2012) (concluding that because the trial court made oral findings concerning Martin's qualifications as violent felony offender of special concern, the court could affirm imposition of the designation and simply remand for entry of a written order that comported with the oral ruling). Otherwise, the written order is facially deficient.

If the written order designating the defendant as a violent felony offender of special concern does not satisfy the requirements of section 948.06(8)(e), on appeal, the court will strike that designation and remand for further proceedings. At any resentencing hearing, the court may reimpose the designation if it makes written findings supported by record evidence that would establish that the defendant so qualifies.


This article was last updated on Wednesday, April 26, 2017.