Law Office of William B. Wynne
2501 Orient Rd., Suite D
Tampa, FL 33619
Law Office of William B. Wynne
2501 Orient Rd., Suite D
Tampa, FL 33619
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 as outlined in Florida law.
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, is an offender who is on felony probation for a designated qualifying offense or is on felony probation for any offense and has previously been convicted of a qualifying offense.
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.1
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, for a violation other than a failure to pay costs, fines, or restitution, who has:
Pursuant to section 948.06(8)(c), the qualifying offenses that trigger the VFOSC designation include any of the following:
Sadly, 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.
The VFOSC designation is perhaps most widely known for its impact on an offender’s ability (or inability) to post bond. Pursuant to 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. That means an offender designated as a VFOSC, could be sitting in jail for a long time before his case is resolved.
Being designated as a Violent Felony Offender of Special Concern can subject 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. Yet, courts rarely impose sentences this harsh. In fact, the court has the discretion to reinstate, modify, or continue probation, if it so decides.
However, when an offender has been designated as a Violent Felony Offender of Special Concern, there are additional procedural requirements the court must follow as 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.
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.”2 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. Keep in mind, this does not impact the court’s ability to grant a downward departure. Clearly, the VFOSC designation significantly raises the stakes for offenders, narrowing the court’s options and often leading to more severe consequences.
Above, we discussed how the VFOSP 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 undertaken, 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.”3
The Dangerousness Hearing (as its name implies) is simply a hearing held by the court to determine whether or not the offender poses a danger to the community at large. It is important, because it is a requirement that must be met if the court wishes to impose the punitive sentencing measures of the VFOSC designation. So, if after a “dangerousness hearing,” the court finds that the offender is not a danger to the community, the VFOSC punitive measures will not be imposed, and the court is free to reinstate, modify, or continue the offender’s probation.
At the Dangerousness Hearing, the court will base its findings on one more of the following factors outlined in section 948.06(8)(e)(1)(a-e), Florida Statutes:
Both the defense and the prosecutor can present evidence at this hearing—including witnesses and testimony. Legal representation at these hearings can greatly improve an offender’s chances of a favorable outcome. Indeed, an experienced criminal defense attorney can strategically present evidence to the court and make a persuasive and compelling argument in support of the offender. From an offender’s standpoint, this can make the difference between getting another shot at finishing probation or going back to prison.
Navigating the complex legal landscape of the VFOSC designation can be daunting. Here are the essential takeaways from this article:
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.