Are Violent Special Offenders of Special Concern Always Dangerous?

The term “violent felony offender of special concern” refers to an individual who is on felony probation or community control related to the commission of a qualifying offense, Florida Statute § 948.06(b)(1), or an individual who is on felony probation or community control for any offense and has previously been convicted of a qualifying offense, § 948.06(b)(2), or an individual who is on felony probation or community control for any offense and is found to have violated that probation or community control by committing a qualifying offense, §948.06(b)(4), or an individual who is on felony probation or community control and has previously been found by a court to be a 3-time violent felony offender as defined by statute and has committed a qualifying offense, § 948.06(b)(5), or an individual who is on felony probation or community control and has previously been found by a court to be a sexual predator as defined by statute and has committed a qualifying offense. § 948.06(b)(6).

If that is not a long enough list, there are nineteen (19) different crime categories that define the term “qualifying offense.”

• 1. Kidnapping or attempted kidnapping under s. 787.01, false imprisonment of a child under the age of 13 under s. 787.02(3), or luring or enticing a child under s. 787.025(2)(b) or (c).
• 2. Murder or attempted murder under s. 782.04, attempted felony murder under s. 782.051, or manslaughter under s. 782.07.
• 3. Aggravated battery or attempted aggravated battery under s. 784.045.
• 4. Sexual battery or attempted sexual battery under s. 794.011(2), (3), (4), or (8)(b) or (c).
• 5. Lewd or lascivious battery or attempted lewd or lascivious battery under s. 800.04(4), lewd or lascivious molestation under s. 800.04(5)(b) or (c)2., lewd or lascivious conduct under s. 800.04(6)(b), lewd or lascivious exhibition under s. 800.04(7)(b), or lewd or lascivious exhibition on computer under s. 847.0135(5)(b).
• 6. Robbery or attempted robbery under s. 812.13, carjacking or attempted carjacking under s. 812.133, or home invasion robbery or attempted home invasion robbery under s. 812.135.
•  7. Lewd or lascivious offense upon or in the presence of an elderly or disabled person or attempted lewd or lascivious offense upon or in the presence of an elderly or disabled person under s. 825.1025.
• 8. Sexual performance by a child or attempted sexual performance by a child under s. 827.071.
• 9. Computer pornography under s. 847.0135(2) or (3), transmission of child pornography under s. 847.0137, or selling or buying of minors under s. 847.0145.
• 10. Poisoning food or water under s. 859.01.
• 11. Abuse of a dead human body under s. 872.06.
• 12. Any burglary offense or attempted burglary offense that is either a first degree felony or second degree felony under s. 810.02(2) or (3).

However, even if a defendant meets the above criteria to qualify as a “violent felony offender of special concern” and admits to a violation of the terms of probation or community control, he or she can still challenge the revocation of probation or community control and the sentence imposed, as the purpose of the sentencing hearing in such cases is to determine if the defendant is a danger to the community where revocation is required.

When the sentencing court fails to make findings of dangerousness, contrary to § 948.06(8)(e)(1)2, the failure requires a resentencing hearing. See Whittaker v. State, 223 So.3d 270, 273-274 (Fla. 4th DCA 2017).

The importance of experienced counsel cannot be understated, and our law office keeps up to date on legal decisions to ensure that “no stone goes unturned” when freedom is at stake. Bottomline, even “violent special offenders of special concern” are not always found to pose a danger which necessarily requires revocation of probation or community control.

• 13. Arson or attempted arson under s. 806.01(1).
• 14. Aggravated assault under s. 784.021.
• 15. Aggravated stalking under s. 784.048(3), (4), (5), or (7).
• 16. Aircraft piracy under s. 860.16.
• 17. Unlawful throwing, placing, or discharging of a destructive device or bomb under s. 790.161(2), (3), or (4).
• 18. Treason under s. 876.32.
• 19. Any offense committed in another jurisdiction which would be an offense listed in this paragraph if that offense had been committed in this state.

2(e) If the court, after conducting the hearing required by paragraph (d), determines that a violent felony offender of special concern has committed a violation of probation or community control other than a failure to pay costs, fines, or restitution, the court shall:

1. Make written findings as to whether or not the violent felony offender of special concern poses a danger to the community. In determining the danger to the community posed by the offender’s release, the court shall base its findings on one or more of the following:

• a. The nature and circumstances of the violation and any new offenses charged.
• b. The offender’s present conduct, including criminal convictions.
• c. The offender’s amenability to nonincarcerative 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.
• d. The weight of the evidence against the offender.
• e. Any other facts the court considers relevant.

2. Decide whether to revoke the probation or community control.

• a. If the court has found that a violent felony offender of special concern poses a danger to the community, the court shall revoke probation and shall sentence the offender up to the statutory maximum, or longer if permitted by law.
• b. If the court has found that a violent felony offender of special concern does not pose a danger to the community, the court may revoke, modify, or continue the probation or community control or may place the probationer into community control as provided in this section.