Violent Felony Offenders of Special Concern (VFOSC) in Florida

Understanding Violent Felony Offenders of Special Concern

One of the perils of being placed on probation is the looming possibility of a probation violation. An offender who violates their probation can face up to the maximum sentence that could have been originally imposed at the time they were placed on probation. For example, an offender placed on probation for Grand Theft in Florida—a third-degree felony punishable by up to five years in prison—could face that entire five-year term if they violate their probation, minus any jail credit they have already served.

Adding the designation of a Violent Felony Offender of Special Concern (VFOSC) raises the stakes in this already precarious situation. To fully appreciate the nuances and consequences of the VFOSC designation, it’s beneficial to examine both its origins and its specific provisions.

History and Summary of VFOSC Provisions

In 2007, in an effort to keep so-called dangerous criminals off the streets, the Florida Legislature promulgated the Anti-Murder Act. The provisions of the act are set forth in section 948.06, Florida Statutes, (2022). The Anti-Murder Act is perhaps best known for creating the designation of Violent Felony Offender of Special Concern. In summation, a Violent Felony Offender of Special Concern (VFOSC) is a legal classification in Florida for offenders who violate felony probation associated with serious crimes designated as “qualifying offenses.”

Primarily, the VFOSC designation has two major punitive measures. First, it can prevent an offender from being released on bond. Second, it can force a judge to sentence an offender to prison by restricting their ability to reinstate, modify, or continue probation. “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.” Barber v. State, 207 So. 3d 379 (Fla. 5th DCA 2016).

What Constitutes a Violent Felony Offender of Special Concern?

Pursuant to section 948.06(8)(b), Florida Statutes, a Violent Felony Offender of Special Concern refers to any offender charged with violating felony probation (excluding violations related to the failure to pay costs, fines, or restitution) under any of the following circumstances:

1. Current Probation for a Qualifying Offense: The offender is on felony probation for a qualifying offense.
2. Previous Conviction for a Qualifying Offense: The offender has previously been convicted of a qualifying offense.
3. New Qualifying Offense While on Probation: The offender has been charged with committing a new qualifying offense while on felony probation.
4. Habitual Violent Felony Offender: The offender has been previously designated as a Habitual Violent Felony Offender and commits a new qualifying offense.
5. Three-Time Violent Felony Offender: The offender has been previously designated as a Three-Time Violent Felony Offender and commits a new qualifying offense.
6. Sexual Predator Status: The offender has been previously designated as a Sexual Predator and commits a new qualifying offense.

Section 948.06(8)(c) sets forth the following qualifying offenses that trigger the VFOSC designation:

1. Kidnapping and False Imprisonment Offenses:
   • False imprisonment of a child under the age of 13 (s. 787.02(3))
   • Kidnapping or attempted kidnapping (s. 787.01)
2. Homicidal Offenses:
   • Attempted felony murder (s. 782.051)
   • Manslaughter (s. 782.07)
   • Murder or attempted murder (s. 782.04)
3. Battery and Assault Offenses:
   • Aggravated assault (s. 784.021)
   • Aggravated battery or attempted aggravated battery (s. 784.045)
4. Lewd or Lascivious Offenses:
   • Lewd or lascivious battery or attempted lewd or lascivious battery (s. 800.04(4))
   • Lewd or lascivious conduct (s. 800.04(6)(b))
   • Lewd or lascivious exhibition (s. 800.04(7)(b))
   • Lewd or lascivious exhibition on computer (s. 847.0135(5)(b))
   • Lewd or lascivious molestation (s. 800.04(5)(b) or (c)2)
   • Lewd or lascivious offense upon or in the presence of an elderly or disabled person or attempted offense (s. 825.1025)
5. Computer and Child Exploitation Offenses:
   • Computer pornography (s. 847.0135(2) or (3))
   • Luring or enticing a child (s. 787.025(2)(b) or (c))
   • Selling or buying of minors (s. 847.0145)
   • Sexual performance by a child or attempted sexual performance (s. 827.071)
   • Transmission of child pornography (s. 847.0137)
6. Robbery and Theft Offenses:
   • Any burglary offense or attempted burglary offense that is either a first-degree or second-degree felony (s. 810.02(2) or (3))
   • Carjacking or attempted carjacking (s. 812.133)
   • Home invasion robbery or attempted home invasion robbery (s. 812.135)
   • Robbery or attempted robbery (s. 812.13)
7. Other Serious Offenses:
   • Abuse of a dead human body (s. 872.06)
   • Aggravated stalking (s. 784.048(3), (4), (5), or (7))
   • Arson or attempted arson (s. 806.01(1))
   • Aircraft piracy (s. 860.16)
   • Poisoning food or water (s. 859.01)
   • Sexual battery or attempted sexual battery (s. 794.011(2), (3), (4), or (8)(b) or (c))
   • Treason (s. 876.32)
   • Unlawful throwing, placing, or discharging of a destructive device or bomb (s. 790.161(2), (3), or (4))
8. Offenses from Other Jurisdictions: Any offense committed in another jurisdiction which would be an offense listed herein if that offense had been committed in this state.

It does not take much to be designated as a VFOSC in Florida. Simply having a single conviction for a qualifying offense (regardless of how long ago), can trigger the VFOSC enhancement. Even offenders with no prior criminal record can qualify if they violate their felony probation by committing any qualifying offense.

No-Bond Consequences of VFOSC Designation

The VFOSC designation is perhaps most widely known for its impact on an offender’s ability (or inability) to post bond. Under section 948.06(8)(d), Florida Statutes, if an offender violates felony probation—for anything other than the failure to pay fines, restitution, or costs of supervision—and is designated as a Violent Felony Offender of Special Concern, the offender shall remain in custody pending the resolution of the probation or community control violation. § 948.06(8)(d), Fla. Stat. (2020). That means an offender designated as a VFOSC, could be sitting in jail for a long time before his case is resolved.

VFOSC Enhanced Sentencing Provisions

Being designated as a Violent Felony Offender of Special Concern subjects an offender to harsher criminal consequences, by restricting a judge’s ability to reinstate, modify, or continue probation. Typically, an offender who is found guilty of violating their probation can be sentenced to the statutory maximum that could have been imposed at the time they were originally placed on probation. However, courts generally retain the discretion to opt for less severe alternatives, such as reinstating, modifying, or continuing probation, as deemed appropriate.

VFOSC Procedural Requirements

However, the VFOSC designation significantly changes this. A court order designating an offender as a Violent Felony Offender of Special Concern must adhere to a strict set of procedural requirements set forth in section 948.06(8), Florida Statutes. Bailey v. State, 136 So. 3d 617 (Fla. 2d DCA 2013). At a violation of probation hearing, the court must first determine if the offender violated their probation. Next the court must determine whether the offender qualifies as a Violent Felony Offender of Special Concern. Lastly, the court must hold a Dangerousness Hearing and determine whether the offender is a danger to the community.

Harsher Sentencing Outcomes

If the court finds that the offender is a danger to the community, it “shall revoke probation and shall sentence the offender up to the statutory maximum, or longer if permitted by law.” § 948.06(8)(e)(2)(a), Fla. Stat. (2020). This means that the court does not have the discretion to continue, modify, or reinstate probation: it must sentence the offender to incarceration pursuant to the sentencing guidelines. However, this does not impact the court’s ability to grant a downward departure. The VFOSC designation therefore significantly escalates the stakes for offenders, narrowing judicial options and often leading to harsher sentencing outcomes.

VFOSC Danger Hearings

Above, we discussed how the VFOSC designation can enhance an offender’s sentence by forcing the court to sentence the offender up to the statutory maximum in prison. However, before this punitive measure can be applied, the court must first “make written findings as to whether or not the Violent Felony Offender of Special Concern poses a danger to the community.” § 948.06(8)(e)(1), Fla. Stat. (2020).

Assessing Community Risk

The Dangerousness Hearing, true to its name, is a court proceeding specifically designed to assess whether the offender poses a danger to the community at large. The outcome of this hearing determines whether the court can impose the VFOSC punitive sentencing measures. If the court determines the offender is not a danger to the community following this hearing, it may choose to reinstate, modify, or continue the offender’s probation instead of applying harsher penalties.

Factors Considered at Danger Hearings

At the Dangerousness Hearing, the court will base its findings on several factors outlined in section 948.06(8)(e)(1)(a-e), Florida Statutes:

1. The nature and circumstances of the violation and any new offenses charged.
2. The offender’s present conduct, including criminal convictions.
3. The offender’s amenability to non-prison sanctions based on their 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.
4. The weight of the evidence against the offender.
5. Any other facts the court considers relevant.

Both the defense and the prosecution have the opportunity to present evidence at this hearing, including witnesses and testimony. Effective legal representation can significantly enhance an offender’s prospects for a favorable outcome. An experienced criminal defense attorney can present a strategic and compelling case to the court, potentially making the difference between an offender being given another opportunity at probation or facing imprisonment.

Frequently Asked Questions

Conclusion and Key Takeaways

The Violent Felony Offender of Special Concern (VFOSC) designation in Florida imposes significant bond restrictions and harsh sentencing enhancements on offenders who violate their felony probation. Here are the essential takeaways:

• No-Bond Consequence: An offender designated as a VFOSC cannot post bond, leading to extended time in jail prior to case resolution.
• Dangerousness Hearing: Before imposing enhanced penalties, a court must decide whether the offender poses a danger to the community. This determination considers factors such as the nature of the violation, prior conduct, and evidence against the offender.
• Enhanced Sentencing: A VFOSC designation can limit judicial discretion to modify, continue, or reinstate probation, mandating a judge to sentence an offender to a term of imprisonment in accordance with the sentencing guidelines.

An offender accused of violating his felony probation is in a perilous situation. And, being designated as a Violent Felony Offender of Special Concern, raises the stakes even higher. If you—or a loved one—are facing this dilemma, it is imperative that you speak with an experienced criminal defense attorney. Contact the Law Office of William B. Wynne, 813-532-5057 for a free consultation.