If someone secures a credit card in a ficticous name and pays the card, is this fraud?
Full Question:
A person using a fictious name (fictious person for name does not exist}receives a credit card offer for the fictious person and accepts.He then uses the card and makes monthly payments to the account.Does this become fraud and can it result in a legal arrest without a complaint by the card provider.
10/31/2007 |
Category: Debts and Cr... » Credit Cards |
State: Florida |
#11359
Answer:
The following are Florida statutes:
817.568 Criminal use of personal identification information. —
(1) As used in this section, the term:
(a) "Access device" means any card, plate, code, account number,
electronic serial number, mobile identification number, personal
identification number, or other telecommunications service, equipment, or
instrument identifier, or other means of account access that can be used,
alone or in conjunction with another access device, to obtain money, goods,
services, or any other thing of value, or that can be used to initiate a
transfer of funds, other than a transfer originated solely by paper
instrument.
(b) "Authorization" means empowerment, permission, or competence to act.
(c) "Harass" means to engage in conduct directed at a specific person
that is intended to cause substantial emotional distress to such person and
serves no legitimate purpose. "Harass" does not mean to use personal
identification information for accepted commercial purposes. The term does
not include constitutionally protected conduct such as organized protests
or the use of personal identification information for accepted commercial
purposes.
(d) "Individual" means a single human being and does not mean a firm,
association of individuals, corporation, partnership, joint venture, sole
proprietorship, or any other entity.
(e) "Person" means a "person" as defined in s. 1.01(3).
(f) "Personal identification information" means any name or number that
may be used, alone or in conjunction with any other information, to
identify a specific individual, including any:
1. Name, postal or electronic mail address, telephone number, social
security number, date of birth, mother's maiden name, official state-issued
or United States-issued driver's license or identification number, alien
registration number, government passport number, employer or taxpayer
identification number, Medicaid or food stamp account number, bank account
number, credit or debit card number, or personal identification number or
code assigned to the holder of a debit card by the issuer to permit
authorized electronic use of such card;
2. Unique biometric data, such as fingerprint, voice print, retina or
iris image, or other unique physical representation;
3. Unique electronic identification number, address, or routing code;
4. Medical records;
5. Telecommunication identifying information or access device; or
6. Other number or information that can be used to access a person's
financial resources.
(g) "Counterfeit or fictitious personal identification information"
means any counterfeit, fictitious, or fabricated information in the
similitude of the data outlined in paragraph (f) that, although not
truthful or accurate, would in context lead a reasonably prudent person
to credit its truthfulness and accuracy.
(2)(a) Any person who willfully and without authorization fraudulently
uses, or possesses with intent to fraudulently use, personal identification
information concerning an individual without first obtaining that
individual's consent, commits the offense of fraudulent use of personal
identification information, which is a felony of the third degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Any person who willfully and without authorization fraudulently uses
personal identification information concerning an individual without first
obtaining that individual's consent commits a felony of the second degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the
pecuniary benefit, the value of the services received, the payment sought
to be avoided, or the amount of the injury or fraud perpetrated is $5,000
or more or if the person fraudulently uses the personal identification
information of 10 or more individuals, but fewer than 20 individuals,
without their consent. Notwithstanding any other provision of law, the
court shall sentence any person convicted of committing the offense
described in this paragraph to a mandatory minimum sentence of 3 years'
imprisonment.
(c) Any person who willfully and without authorization fraudulently uses
personal identification information concerning an individual without first
obtaining that individual's consent commits a felony of the first degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the
pecuniary benefit, the value of the services received, the payment sought
to be avoided, or the amount of the injury or fraud perpetrated is $50,000
or more or if the person fraudulently uses the personal identification
information of 20 or more individuals, but fewer than 30 individuals,
without their consent. Notwithstanding any other provision of law, the
court shall sentence any person convicted of committing the offense
described in this paragraph to a mandatory minimum sentence of 5 years'
imprisonment. If the pecuniary benefit, the value of the services received,
the payment sought to be avoided, or the amount of the injury or fraud
perpetrated is $100,000 or more, or if the person fraudulently uses the
personal identification information of 30 or more individuals without their
consent, notwithstanding any other provision of law, the court shall
sentence any person convicted of committing the offense described in this
paragraph to a mandatory minimum sentence of 10 years' imprisonment.
(3) Neither paragraph (2)(b) nor paragraph (2)(c) prevents a court from
imposing a greater sentence of incarceration as authorized by law. If the
minimum mandatory terms of imprisonment imposed under paragraph (2)(b) or
paragraph (2)(c) exceed the maximum sentences authorized under s. 775.082,
s. 775.084, or the Criminal Punishment Code under chapter 921, the
mandatory minimum sentence must be imposed. If the mandatory minimum terms
of imprisonment under paragraph (2)(b) or paragraph (2)(c) are less than
the sentence that could be imposed under s. 775.082, s. 775.084, or the
Criminal Punishment Code under chapter 921, the sentence imposed by the
court must include the mandatory minimum term of imprisonment as required
by paragraph (2)(b) or paragraph (2)(c).
(4) Any person who willfully and without authorization possesses, uses,
or attempts to use personal identification information concerning an
individual without first obtaining that individual's consent, and who does
so for the purpose of harassing that individual, commits the offense of
harassment by use of personal identification information, which is a
misdemeanor of the first degree, punishable as provided in s. 775.082 or s.
775.083.
(5) If an offense prohibited under this section was facilitated or
furthered by the use of a public record, as defined in s. 119.011, the
offense is reclassified to the next higher degree as follows:
(a) A misdemeanor of the first degree is reclassified as a felony of the
third degree.
(b) A felony of the third degree is reclassified as a felony of the
second degree.
(c) A felony of the second degree is reclassified as a felony of the
first degree.
For purposes of sentencing under chapter 921 and incentive gain-time
eligibility under chapter 944, a felony offense that is reclassified
under this subsection is ranked one level above the ranking under s.
921.0022 of the felony offense committed, and a misdemeanor offense that
is reclassified under this subsection is ranked in level 2 of the offense
severity ranking chart in s. 921.0022.
(6) Any person who willfully and without authorization fraudulently uses
personal identification information concerning an individual who is less
than 18 years of age without first obtaining the consent of that individual
or of his or her legal guardian commits a felony of the second degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(7) Any person who is in the relationship of parent or legal guardian, or
who otherwise exercises custodial authority over an individual who is less
than 18 years of age, who willfully and fraudulently uses personal
identification information of that individual commits a felony of the
second degree, punishable as provided in s. 775.082, s. 775.083, or s.
775.084.
(8)(a) Any person who willfully and fraudulently uses, or possesses with
intent to fraudulently use, personal identification information concerning
a deceased individual commits the offense of fraudulent use or possession
with intent to use personal identification information of a deceased
individual, a felony of the third degree, punishable as provided in s.
775.082, s. 775.083, or s. 775.084.
(b) Any person who willfully and fraudulently uses personal
identification information concerning a deceased individual commits a
felony of the second degree, punishable as provided in s. 775.082, s.
775.083, or s. 775.084, if the pecuniary benefit, the value of the
services received, the payment sought to be avoided, or the amount of
injury or fraud perpetrated is $5,000 or more, or if the person
fraudulently uses the personal identification information of 10 or more
but fewer than 20 deceased individuals. Notwithstanding any other
provision of law, the court shall sentence any person convicted of
committing the offense described in this paragraph to a mandatory minimum
sentence of 3 years' imprisonment.
(c) Any person who willfully and fraudulently uses personal
identification information concerning a deceased individual commits the
offense of aggravated fraudulent use of the personal identification
information of multiple deceased individuals, a felony of the first
degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084,
if the pecuniary benefit, the value of the services received, the payment
sought to be avoided, or the amount of injury or fraud perpetrated is
$50,000 or more, or if the person fraudulently uses the personal
identification information of 20 or more but fewer than 30 deceased
individuals. Notwithstanding any other provision of law, the court shall
sentence any person convicted of the offense described in this paragraph
to a minimum mandatory sentence of 5 years' imprisonment. If the
pecuniary benefit, the value of the services received, the payment sought
to be avoided, or the amount of the injury or fraud perpetrated is
$100,000 or more, or if the person fraudulently uses the personal
identification information of 30 or more deceased individuals,
notwithstanding any other provision of law, the court shall sentence any
person convicted of an offense described in this paragraph to a mandatory
minimum sentence of 10 years' imprisonment.
(9) Any person who willfully and fraudulently creates or uses, or
possesses with intent to fraudulently use, counterfeit or fictitious
personal identification information concerning a fictitious individual, or
concerning a real individual without first obtaining that real individual's
consent, with intent to use such counterfeit or fictitious personal
identification information for the purpose of committing or facilitating
the commission of a fraud on another person, commits the offense of
fraudulent creation or use, or possession with intent to fraudulently use,
counterfeit or fictitious personal identification information, a felony of
the third degree, punishable as provided in s. 775.082, s. 775.083, or s.
775.084.
(10) Any person who commits an offense described in this section and
for the purpose of obtaining or using personal identification information
misrepresents himself or herself to be a law enforcement officer; an
employee or representative of a bank, credit card company, credit
counseling company, or credit reporting agency; or any person who
wrongfully represents that he or she is seeking to assist the victim with
a problem with the victim's credit history shall have the offense
reclassified as follows:
(a) In the case of a misdemeanor, the offense is reclassified as a felony
of the third degree.
(b) In the case of a felony of the third degree, the offense is
reclassified as a felony of the second degree.
(c) In the case of a felony of the second degree, the offense is
reclassified as a felony of the first degree.
(d) In the case of a felony of the first degree or a felony of the first
degree punishable by a term of imprisonment not exceeding life, the offense
is reclassified as a life felony.
For purposes of sentencing under chapter 921, a felony offense that is
reclassified under this subsection is ranked one level above the ranking
under s. 921.0022 or s. 921.0023 of the felony offense committed, and a
misdemeanor offense that is reclassified under this subsection is ranked
in level 2 of the offense severity ranking chart.
(11) The prosecutor may move the sentencing court to reduce or suspend
the sentence of any person who is convicted of a violation of this
section and who provides substantial assistance in the identification,
arrest, or conviction of any of that person's accomplices, accessories,
coconspirators, or principals or of any other person engaged in
fraudulent possession or use of personal identification information. The
arresting agency shall be given an opportunity to be heard in aggravation
or mitigation in reference to any such motion. Upon good cause shown, the
motion may be filed and heard in camera. The judge hearing the motion may
reduce or suspend the sentence if the judge finds that the defendant
rendered such substantial assistance.
(12) This section does not prohibit any lawfully authorized
investigative, protective, or intelligence activity of a law enforcement
agency of this state or any of its political subdivisions, of any other
state or its political subdivisions, or of the Federal Government or its
political subdivisions.
(13)(a) In sentencing a defendant convicted of an offense under this
section, the court may order that the defendant make restitution under s.
775.089 to any victim of the offense. In addition to the victim's
out-of-pocket costs, restitution may include payment of any other costs,
including attorney's fees incurred by the victim in clearing the victim's
credit history or credit rating, or any costs incurred in connection with
any civil or administrative proceeding to satisfy any debt, lien, or other
obligation of the victim arising as the result of the actions of the
defendant.
(b) The sentencing court may issue such orders as are necessary to
correct any public record that contains false information given in
violation of this section.
(14) Prosecutions for violations of this section may be brought on behalf
of the state by any state attorney or by the statewide prosecutor.
(15) The Legislature finds that, in the absence of evidence to the
contrary, the location where a victim gives or fails to give consent to the
use of personal identification information is the county where the victim
generally resides.
(16) Notwithstanding any other provision of law, venue for the
prosecution and trial of violations of this section may be commenced and
maintained in any county in which an element of the offense occurred,
including the county where the victim generally resides.
(17) A prosecution of an offense prohibited under subsection (2),
subsection (6), or subsection (7) must be commenced within 3 years after
the offense occurred. However, a prosecution may be commenced within 1 year
after discovery of the offense by an aggrieved party, or by a person who
has a legal duty to represent the aggrieved party and who is not a party to
the offense, if such prosecution is commenced within 5 years after the
violation occurred.
775.082 Penalties; applicability of sentencing structures; mandatory
minimum sentences for certain reoffenders previously released from prison.
—
(1) A person who has been convicted of a capital felony shall be punished
by death if the proceeding held to determine sentence according to the
procedure set forth in s. 921.141 results in findings by the court that
such person shall be punished by death, otherwise such person shall be
punished by life imprisonment and shall be ineligible for parole.
(2) In the event the death penalty in a capital felony is held to be
unconstitutional by the Florida Supreme Court or the United States Supreme
Court, the court having jurisdiction over a person previously sentenced to
death for a capital felony shall cause such person to be brought before the
court, and the court shall sentence such person to life imprisonment as
provided in subsection (1). No sentence of death shall be reduced as a
result of a determination that a method of execution is held to be
unconstitutional under the State Constitution or the Constitution of the
United States.
(3) A person who has been convicted of any other designated felony may be
punished as follows:
(a)1. For a life felony committed prior to October 1, 1983, by a term of
imprisonment for life or for a term of years not less than 30.
2. For a life felony committed on or after October 1, 1983, by a term of
imprisonment for life or by a term of imprisonment not exceeding 40 years.
3. Except as provided in subparagraph 4., for a life felony committed
on or after July 1, 1995, by a term of imprisonment for life or by
imprisonment for a term of years not exceeding life imprisonment.
4. For a life felony committed on or after September 1, 2005, which is a
violation of s. 800.04(5)(b), by:
a. A term of imprisonment for life; or
b. A split sentence that is a term of not less than 25 years'
imprisonment and not exceeding life imprisonment, followed by probation
or community control for the remainder of the person's natural life, as
provided in s. 948.012(4).
(b) For a felony of the first degree, by a term of imprisonment not
exceeding 30 years or, when specifically provided by statute, by
imprisonment for a term of years not exceeding life imprisonment.
(c) For a felony of the second degree, by a term of imprisonment not
exceeding 15 years.
(d) For a felony of the third degree, by a term of imprisonment not
exceeding 5 years.
(4) A person who has been convicted of a designated misdemeanor may be
sentenced as follows:
(a) For a misdemeanor of the first degree, by a definite term of
imprisonment not exceeding 1 year;
(b) For a misdemeanor of the second degree, by a definite term of
imprisonment not exceeding 60 days.
(5) Any person who has been convicted of a noncriminal violation may not
be sentenced to a term of imprisonment nor to any other punishment more
severe than a fine, forfeiture, or other civil penalty, except as provided
in chapter 316 or by ordinance of any city or county.
(6) Nothing in this section shall be construed to alter the operation of
any statute of this state authorizing a trial court, in its discretion, to
impose a sentence of imprisonment for an indeterminate period within
minimum and maximum limits as provided by law, except as provided in
subsection (1).
(7) This section does not deprive the court of any authority conferred by
law to decree a forfeiture of property, suspend or cancel a license, remove
a person from office, or impose any other civil penalty. Such a judgment or
order may be included in the sentence.
(8)(a) The sentencing guidelines that were effective October 1, 1983, and
any revisions thereto, apply to all felonies, except capital felonies,
committed on or after October 1, 1983, and before January 1, 1994, and to
all felonies, except capital felonies and life felonies, committed before
October 1, 1983, when the defendant affirmatively selects to be sentenced
pursuant to such provisions.
(b) The 1994 sentencing guidelines, that were effective January 1, 1994,
and any revisions thereto, apply to all felonies, except capital felonies,
committed on or after January 1, 1994, and before October 1, 1995.
(c) The 1995 sentencing guidelines that were effective October 1, 1995,
and any revisions thereto, apply to all felonies, except capital felonies,
committed on or after October 1, 1995, and before October 1, 1998.
(d) The Criminal Punishment Code applies to all felonies, except capital
felonies, committed on or after October 1, 1998. Any revision to the
Criminal Punishment Code applies to sentencing for all felonies, except
capital felonies, committed on or after the effective date of the revision.
(e) Felonies, except capital felonies, with continuing dates of
enterprise shall be sentenced under the sentencing guidelines or the
Criminal Punishment Code in effect on the beginning date of the criminal
activity.
(9)(a)1. "Prison releasee reoffender" means any defendant who commits, or
attempts to commit:
a. Treason;
b. Murder;
c. Manslaughter;
d. Sexual battery;
e. Carjacking;
f. Home-invasion robbery;
g. Robbery;
h. Arson;
i. Kidnapping;
j. Aggravated assault with a deadly weapon;
k. Aggravated battery;
l. Aggravated stalking;
m. Aircraft piracy;
n. Unlawful throwing, placing, or discharging of a destructive device or
bomb;
o. Any felony that involves the use or threat of physical force or
violence against an individual;
p. Armed burglary;
q. Burglary of a dwelling or burglary of an occupied structure; or
r. Any felony violation of s. 790.07, s. 800.04, s. 827.03, or s.
827.071;
within 3 years after being released from a state correctional facility
operated by the Department of Corrections or a private vendor or within 3
years after being released from a correctional institution of another
state, the District of Columbia, the United States, any possession or
territory of the United States, or any foreign jurisdiction, following
incarceration for an offense for which the sentence is punishable by more
than 1 year in this state.
2. "Prison releasee reoffender" also means any defendant who commits or
attempts to commit any offense listed in sub-subparagraphs (a)1.a.-r. while
the defendant was serving a prison sentence or on escape status from a
state correctional facility operated by the Department of Corrections or a
private vendor or while the defendant was on escape status from a
correctional institution of another state, the District of Columbia, the
United States, any possession or territory of the United States, or any
foreign jurisdiction, following incarceration for an offense for which the
sentence is punishable by more than 1 year in this state.
3. If the state attorney determines that a defendant is a prison releasee
reoffender as defined in subparagraph 1., the state attorney may seek to
have the court sentence the defendant as a prison releasee reoffender. Upon
proof from the state attorney that establishes by a preponderance of the
evidence that a defendant is a prison releasee reoffender as defined in
this section, such defendant is not eligible for sentencing under the
sentencing guidelines and must be sentenced as follows:
a. For a felony punishable by life, by a term of imprisonment for life;
b. For a felony of the first degree, by a term of imprisonment of 30
years;
c. For a felony of the second degree, by a term of imprisonment of 15
years; and
d. For a felony of the third degree, by a term of imprisonment of 5
years.
(b) A person sentenced under paragraph (a) shall be released only by
expiration of sentence and shall not be eligible for parole, control
release, or any form of early release. Any person sentenced under paragraph
(a) must serve 100 percent of the court-imposed sentence.
(c) Nothing in this subsection shall prevent a court from imposing a
greater sentence of incarceration as authorized by law, pursuant to s.
775.084 or any other provision of law.
(d)1. It is the intent of the Legislature that offenders previously
released from prison who meet the criteria in paragraph (a) be punished to
the fullest extent of the law and as provided in this subsection, unless
the state attorney determines that extenuating circumstances exist which
preclude the just prosecution of the offender, including whether the victim
recommends that the offender not be sentenced as provided in this
subsection.
2. For every case in which the offender meets the criteria in paragraph
(a) and does not receive the mandatory minimum prison sentence, the state
attorney must explain the sentencing deviation in writing and place such
explanation in the case file maintained by the state attorney. On an annual
basis, each state attorney shall submit copies of deviation memoranda
regarding offenses committed on or after the effective date of this
subsection, to the president of the Florida Prosecuting Attorneys
Association, Inc. The association must maintain such information, and make
such information available to the public upon request, for at least a
10-year period.
(10) The purpose of this section is to provide uniform punishment for
those crimes made punishable under this section and, to this end, a
reference to this section constitutes a general reference under the
doctrine of incorporation by reference.
775.083 Fines. —
(1) A person who has been convicted of an offense other than a capital
felony may be sentenced to pay a fine in addition to any punishment
described in s. 775.082; when specifically authorized by statute, he or she
may be sentenced to pay a fine in lieu of any punishment described in s.
775.082. A person who has been convicted of a noncriminal violation may be
sentenced to pay a fine. Fines for designated crimes and for noncriminal
violations shall not exceed:
(a) $15,000, when the conviction is of a life felony.
(b) $10,000, when the conviction is of a felony of the first or second
degree.
(c) $5,000, when the conviction is of a felony of the third degree.
(d) $1,000, when the conviction is of a misdemeanor of the first degree.
(e) $500, when the conviction is of a misdemeanor of the second degree or
a noncriminal violation.
(f) Any higher amount equal to double the pecuniary gain derived from the
offense by the offender or double the pecuniary loss suffered by the
victim.
(g) Any higher amount specifically authorized by statute.
Fines imposed in this subsection shall be deposited by the clerk of the
court in the fine and forfeiture fund established pursuant to s. 142.01.
If a defendant is unable to pay a fine, the court may defer payment of
the fine to a date certain.
(2) In addition to the fines set forth in subsection (1), court costs
shall be assessed and collected in each instance a defendant pleads nolo
contendere to, or is convicted of, or adjudicated delinquent for, a felony,
a misdemeanor, or a criminal traffic offense under state law, or a
violation of any municipal or county ordinance if the violation constitutes
a misdemeanor under state law. The court costs imposed by this section
shall be $50 for a felony and $20 for any other offense and shall be
deposited by the clerk of the court into an appropriate county account for
disbursement for the purposes provided in this subsection. A county shall
account for the funds separately from other county funds as crime
prevention funds. The county, in consultation with the sheriff, must expend
such funds for crime prevention programs in the county, including safe
neighborhood programs under ss. 163.501-163.523.
(3) The purpose of this section is to provide uniform penalty
authorization for criminal offenses and, to this end, a reference to this
section constitutes a general reference under the doctrine of
incorporation by reference.
775.084 Violent career criminals; habitual felony offenders and habitual
violent felony offenders; three-time violent felony offenders; definitions;
procedure; enhanced penalties or mandatory minimum prison terms. —
(1) As used in this act:
(a) "Habitual felony offender" means a defendant for whom the court may
impose an extended term of imprisonment, as provided in paragraph (4)(a),
if it finds that:
1. The defendant has previously been convicted of any combination of two
or more felonies in this state or other qualified offenses.
2. The felony for which the defendant is to be sentenced was committed:
a. While the defendant was serving a prison sentence or other sentence,
or court-ordered or lawfully imposed supervision that is imposed as a
result of a prior conviction for a felony or other qualified offense; or
b. Within 5 years of the date of the conviction of the defendant's last
prior felony or other qualified offense, or within 5 years of the
defendant's release from a prison sentence, probation, community control,
control release, conditional release, parole or court-ordered or lawfully
imposed supervision or other sentence that is imposed as a result of a
prior conviction for a felony or other qualified offense, whichever is
later.
3. The felony for which the defendant is to be sentenced, and one of the
two prior felony convictions, is not a violation of s. 893.13 relating to
the purchase or the possession of a controlled substance.
4. The defendant has not received a pardon for any felony or other
qualified offense that is necessary for the operation of this paragraph.
5. A conviction of a felony or other qualified offense necessary to the
operation of this paragraph has not been set aside in any postconviction
proceeding.
(b) "Habitual violent felony offender" means a defendant for whom the
court may impose an extended term of imprisonment, as provided in paragraph
(4)(b), if it finds that:
1. The defendant has previously been convicted of a felony or an attempt
or conspiracy to commit a felony and one or more of such convictions was
for:
a. Arson;
b. Sexual battery;
c. Robbery;
d. Kidnapping;
e. Aggravated child abuse;
f. Aggravated abuse of an elderly person or disabled adult;
g. Aggravated assault with a deadly weapon;
h. Murder;
i. Manslaughter;
j. Aggravated manslaughter of an elderly person or disabled adult;
k. Aggravated manslaughter of a child;
l. Unlawful throwing, placing, or discharging of a destructive device or
bomb;
m. Armed burglary;
n. Aggravated battery; or
o. Aggravated stalking.
2. The felony for which the defendant is to be sentenced was committed:
a. While the defendant was serving a prison sentence or other sentence,
or court-ordered or lawfully imposed supervision that is imposed as a
result of a prior conviction for an enumerated felony; or
b. Within 5 years of the date of the conviction of the last prior
enumerated felony, or within 5 years of the defendant's release from a
prison sentence, probation, community control, control release, conditional
release, parole, or court-ordered or lawfully imposed supervision or other
sentence that is imposed as a result of a prior conviction for an
enumerated felony, whichever is later.
3. The defendant has not received a pardon on the ground of innocence for
any crime that is necessary for the operation of this paragraph.
4. A conviction of a crime necessary to the operation of this paragraph
has not been set aside in any postconviction proceeding.
(c) "Three-time violent felony offender" means a defendant for whom the
court must impose a mandatory minimum term of imprisonment, as provided in
paragraph (4)(c), if it finds that:
1. The defendant has previously been convicted as an adult two or more
times of a felony, or an attempt to commit a felony, and two or more of
such convictions were for committing, or attempting to commit, any of the
following offenses or combination thereof:
a. Arson;
b. Sexual battery;
c. Robbery;
d. Kidnapping;
e. Aggravated child abuse;
f. Aggravated abuse of an elderly person or disabled adult;
g. Aggravated assault with a deadly weapon;
h. Murder;
i. Manslaughter;
j. Aggravated manslaughter of an elderly person or disabled adult;
k. Aggravated manslaughter of a child;
l. Unlawful throwing, placing, or discharging of a destructive device or
bomb;
m. Armed burglary;
n. Aggravated battery;
o. Aggravated stalking;
p. Home invasion/robbery;
q. Carjacking; or
r. An offense which is in violation of a law of any other jurisdiction if
the elements of the offense are substantially similar to the elements of
any felony offense enumerated in sub-subparagraphs a.-q., or an attempt to
commit any such felony offense.
2. The felony for which the defendant is to be sentenced is one of the
felonies enumerated in sub-subparagraphs 1.a.-q. and was committed:
a. While the defendant was serving a prison sentence or other sentence
imposed as a result of a prior conviction for any offense enumerated in
sub-subparagraphs 1.a.-r.; or
b. Within 5 years after the date of the conviction of the last prior
offense enumerated in sub-subparagraphs 1.a.-r., or within 5 years after
the defendant's release from a prison sentence, probation, community
control, or other sentence imposed as a result of a prior conviction for
any offense enumerated in sub-subparagraphs 1.a.-r., whichever is later.
3. The defendant has not received a pardon on the ground of innocence for
any crime that is necessary for the operation of this paragraph.
4. A conviction of a crime necessary to the operation of this paragraph
has not been set aside in any postconviction proceeding.
(d) "Violent career criminal" means a defendant for whom the court must
impose imprisonment pursuant to paragraph (4)(d), if it finds that:
1. The defendant has previously been convicted as an adult three or more
times for an offense in this state or other qualified offense that is:
a. Any forcible felony, as described in s. 776.08;
b. Aggravated stalking, as described in s. 784.048(3) and (4);
c. Aggravated child abuse, as described in s. 827.03(2);
d. Aggravated abuse of an elderly person or disabled adult, as described
in s. 825.102(2);
e. Lewd or lascivious battery, lewd or lascivious molestation, lewd or
lascivious conduct, or lewd or lascivious exhibition, as described in s.
800.04;
f. Escape, as described in s. 944.40; or
g. A felony violation of chapter 790 involving the use or possession of a
firearm.
2. The defendant has been incarcerated in a state prison or a federal
prison.
3. The primary felony offense for which the defendant is to be sentenced
is a felony enumerated in subparagraph 1. and was committed on or after
October 1, 1995, and:
a. While the defendant was serving a prison sentence or other sentence,
or court-ordered or lawfully imposed supervision that is imposed as a
result of a prior conviction for an enumerated felony; or
b. Within 5 years after the conviction of the last prior enumerated
felony, or within 5 years after the defendant's release from a prison
sentence, probation, community control, control release, conditional
release, parole, or court-ordered or lawfully imposed supervision or other
sentence that is imposed as a result of a prior conviction for an
enumerated felony, whichever is later.
4. The defendant has not received a pardon for any felony or other
qualified offense that is necessary for the operation of this paragraph.
5. A conviction of a felony or other qualified offense necessary to the
operation of this paragraph has not been set aside in any postconviction
proceeding.
(e) "Qualified offense" means any offense, substantially similar in
elements and penalties to an offense in this state, which is in violation
of a law of any other jurisdiction, whether that of another state, the
District of Columbia, the United States or any possession or territory
thereof, or any foreign jurisdiction, that was punishable under the law of
such jurisdiction at the time of its commission by the defendant by death
or imprisonment exceeding 1 year.
(2) For the purposes of this section, the placing of a person on
probation or community control without an adjudication of guilt shall be
treated as a prior conviction.
(3)(a) In a separate proceeding, the court shall determine if the
defendant is a habitual felony offender or a habitual violent felony
offender. The procedure shall be as follows:
1. The court shall obtain and consider a presentence investigation prior
to the imposition of a sentence as a habitual felony offender or a habitual
violent felony offender.
2. Written notice shall be served on the defendant and the defendant's
attorney a sufficient time prior to the entry of a plea or prior to the
imposition of sentence in order to allow the preparation of a submission on
behalf of the defendant.
3. Except as provided in subparagraph 1., all evidence presented shall
be presented in open court with full rights of confrontation,
cross-examination, and representation by counsel.
4. Each of the findings required as the basis for such sentence shall be
found to exist by a preponderance of the evidence and shall be appealable
to the extent normally applicable to similar findings.
5. For the purpose of identification of a habitual felony offender or a
habitual violent felony offender, the court shall fingerprint the defendant
pursuant to s. 921.241.
6. For an offense committed on or after October 1, 1995, if the state
attorney pursues a habitual felony offender sanction or a habitual violent
felony offender sanction against the defendant and the court, in a separate
proceeding pursuant to this paragraph, determines that the defendant meets
the criteria under subsection (1) for imposing such sanction, the court
must sentence the defendant as a habitual felony offender or a habitual
violent felony offender, subject to imprisonment pursuant to this section
unless the court finds that such sentence is not necessary for the
protection of the public. If the court finds that it is not necessary for
the protection of the public to sentence the defendant as a habitual felony
offender or a habitual violent felony offender, the court shall provide
written reasons; a written transcript of orally stated reasons is
permissible, if filed by the court within 7 days after the date of
sentencing. Each month, the court shall submit to the Office of Economic
and Demographic Research of the Legislature the written reasons or
transcripts in each case in which the court determines not to sentence a
defendant as a habitual felony offender or a habitual violent felony
offender as provided in this subparagraph.
(b) In a separate proceeding, the court shall determine if the defendant
is a three-time violent felony offender. The procedure shall be as follows:
1. The court shall obtain and consider a presentence investigation prior
to the imposition of a sentence as a three-time violent felony offender.
2. Written notice shall be served on the defendant and the defendant's
attorney a sufficient time prior to the entry of a plea or prior to the
imposition of sentence in order to allow the preparation of a submission on
behalf of the defendant.
3. Except as provided in subparagraph 1., all evidence presented shall
be presented in open court with full rights of confrontation,
cross-examination, and representation by counsel.
4. Each of the findings required as the basis for such sentence shall be
found to exist by a preponderance of the evidence and shall be appealable
to the extent normally applicable to similar findings.
5. For the purpose of identification of a three-time violent felony
offender, the court shall fingerprint the defendant pursuant to s. 921.241.
6. For an offense committed on or after the effective date of this act,
if the state attorney pursues a three-time violent felony offender sanction
against the defendant and the court, in a separate proceeding pursuant to
this paragraph, determines that the defendant meets the criteria under
subsection (1) for imposing such sanction, the court must sentence the
defendant as a three-time violent felony offender, subject to imprisonment
pursuant to this section as provided in paragraph (4)(c).
(c) In a separate proceeding, the court shall determine whether the
defendant is a violent career criminal with respect to a primary offense
committed on or after October 1, 1995. The procedure shall be as follows:
1. Written notice shall be served on the defendant and the defendant's
attorney a sufficient time prior to the entry of a plea or prior to the
imposition of sentence in order to allow the preparation of a submission on
behalf of the defendant.
2. All evidence presented shall be presented in open court with full
rights of confrontation, cross-examination, and representation by counsel.
3. Each of the findings required as the basis for such sentence shall be
found to exist by a preponderance of the evidence and shall be appealable
only as provided in paragraph (d).
4. For the purpose of identification, the court shall fingerprint the
defendant pursuant to s. 921.241.
5. For an offense committed on or after October 1, 1995, if the state
attorney pursues a violent career criminal sanction against the defendant
and the court, in a separate proceeding pursuant to this paragraph,
determines that the defendant meets the criteria under subsection (1) for
imposing such sanction, the court must sentence the defendant as a violent
career criminal, subject to imprisonment pursuant to this section unless
the court finds that such sentence is not necessary for the protection of
the public. If the court finds that it is not necessary for the protection
of the public to sentence the defendant as a violent career criminal, the
court shall provide written reasons; a written transcript of orally stated
reasons is permissible, if filed by the court within 7 days after the date
of sentencing. Each month, the court shall submit to the Office of Economic
and Demographic Research of the Legislature the written reasons or
transcripts in each case in which the court determines not to sentence a
defendant as a violent career criminal as provided in this subparagraph.
(d)1. A person sentenced under paragraph (4)(d) as a violent career
criminal has the right of direct appeal, and either the state or the
defendant may petition the trial court to vacate an illegal sentence at any
time. However, the determination of the trial court to impose or not to
impose a violent career criminal sentence is presumed appropriate and no
petition or motion for collateral or other postconviction relief may be
considered based on an allegation either by the state or the defendant that
such sentence is inappropriate, inadequate, or excessive.
2. It is the intent of the Legislature that, with respect to both direct
appeal and collateral review of violent career criminal sentences, all
claims of error or illegality be raised at the first opportunity and that
no claim should be filed more than 2 years after the judgment and sentence
became final, unless it is established
