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The Florida legislature has enacted several laws over the last decade that provide for enhanced penalties for individuals with criminal records who are convicted of new felony offenses. While there are a total of six different potential classifications, two are confronted with far more frequency than the others; habitual felony offender (HFO) and prison release reoffender (PRR). It is important early on in the case to identify any potential enhancement that might apply as some are mandatory where the judge is required to apply the enhancement and others are discretionary where the judge can decide not to apply it.

Habitual Felony Offender

HFO is a discretionary classification. A judge may, but is not required to, sentence a defendant as HFO if certain criteria met. First, the prosecutor must file a notice asking the court to apply the HFO enhancement. Second, the defendant must have at least two prior felony convictions that occurred on occasions separate from each other and separately from the current offense. Notably, convictions where adjudication was ‘withheld’ count as prior convictions. Third, the current offense must be a felony and it must have been committed within five years of the date of conviction of the last prior felony or within five years of release from prison, whichever is later. Finally, the defendant must not have received a pardon for either of the prior convictions or had any conviction set aside on appeal.

If all the criteria are met, the judge may sentence the defendant as an HFO after affording him or her a hearing to potentially challenge the validity of any of the criteria. Being a HFO means that the maximum possible prison sentence is effectively doubled. Thus, for a third degree felony, normally punishable by a maximum of five years, the maximum becomes ten. For a second degree felony, the maximum becomes thirty instead of fifteen. And for a first degree or life felony, the maximum becomes life. HFO defendants do still qualify for “gain time” off their sentence.

Prison Release Reoffender

PRR is a mandatory enhancement. If the state proves the defendant qualifies as a PRR, the judge has no choice but to apply the enhancement. Again, the process must be initiated by the state by filing a notice and they must prove that the defendant’s present offense is one of the enumerated felonies and the present offense was committed within three years of being released from prison. If the enhancement applies, the judge must sentence the defendant to the maximum term of imprisonment. The most common of the enumerated felonies are murder, sexual battery, home-invasion robbery, robbery, aggravated assault with a deadly weapon, aggravated battery, burglary of a dwelling or occupied structure, and any felony that involves the use or threat of physical force or violence against an individual. PRR defendants are not eligible for “gain time” credit off their sentence.

The author is a Jacksonville criminal defense attorney.