What is a Violent Felony Offender of Special Concern?

Violent Felony Offenders of Special Concern

Being classified as a Violent Felony Offender of Special Concern (VFOSC) may subject an offender (facing probation violations) to enhanced criminal sanctions. 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, for a free consultation.

One of the perils of being placed on probation, is the looming possibility of a probation violation. In fact, 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. Take, for instance, an offender that is placed on probation for Grand Theft. In Florida, Grand Theft is a third-degree felony, punishable by up to five years in prison. This means that if the offender violates the probation, he or she can face up to 5 years in prison—minus any jail credit they have already served. Make no mistake, violating felony probation can have profoundly serious consequences. Being designated as a Violent Felony Offender of Special Concern, raises the stakes even higher.

History and Summary of Florida’s 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 Florida Statutes, section 948.06(8). 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.” Barber v. State, 207 So. 3d 379 (Fla. 5th DCA 2016).

Violent Felony Offender of Special Concern Qualifications

Pursuant to section § 948.06(8)(b), a Violent Felony Offender of Special Concern, is any offender charged with violating felony probation, for a violation other than a failure to pay costs, fines, or restitution, who has:

• Been charged with violating his or her probation by committing a qualifying offense
• Previously been convicted of a qualifying offense
• Been found by a court to be a Habitual Violent Felony Offender
• Been found by a court to be a Sexual Predator

Pursuant to section § 948.06(8)(c), some of the qualifying offenses that trigger the VFOSC designation include—but are not limited to—the following:

• Homicide, felony murder, manslaughter
• Aggravated battery, aggravated assault, aggravated stalking
• Kidnapping and false imprisonment involving children
• Sexual battery offenses
• Lewd or lascivious offenses (which can include statutory rape crimes)
• Robbery, carjacking, and home invasion offenses
• Computer pornography charges
• Certain burglary offenses
• Arson or attempted arson

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 an offender with no prior criminal record can qualify if they are accused of violating their felony probation by simply committing a qualifying offense.

No Bond for Violent Felony Offenders of Special Concern

The VFOSC designation is perhaps most widely known for its impact on an offender’s ability (or inability) to post bond. 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

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.

When the offender has been designated as a Violent Felony Offender of Special Concern, there are a few additional procedural requirements the court must follow. That is, 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. 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.” § 948.06(8)(e)(2)(a), Fla. Stat. (2020). This means that the court does not have the discretion to continue, modify, ore 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.

The Danger Hearing

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.” § 948.06(8)(e)(1), Fla. Stat. (2020). This is known as a Dangerousness Hearing.

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:

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 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.
4. The weight of the evidence against the offender.
5. Any other facts the court considers relevant.

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.

Even an offender with no prior criminal record can qualify if they are accused of violating their felony probation by simply committing a qualifying offense.

Final Thoughts

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 criminal charges, contact our office today. Our initial consultations are always free of charge.