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What Does Habitual Felony Offender Mean?

In Florida, a number of "career criminal" designations are used by the State Attorney's Office to label certain defendants. For example, if a 3rd-degree felony normally carries a maximum of 5 years in prison, a Habitual Felony Offender (or an "HO") will face 10 years. For a 2nd degree felony, an HO faces 30 years instead of 15, and for a 1st-degree felony, an HO faces life in prison, instead of 30 years.

I am discussing the Habitual Felony Offender designation because it is the most common, and unfortunately the easiest to attain. An accused person can be labeled as an HO if they have two prior felony convictions, with one of those convictions occurring within the five years prior to the arrest on the new charge. In fact, even a withhold of adjudication followed by probation or community control can count toward your HO status, even though it is technically not a "conviction."

Certain prior felonies, however, do not count toward your HO status. Those convictions include:

  • Possession of any controlled substance
  • Possession with intent to sell any controlled substance
  • Purchase of a controlled substance
  • Possession with intent to purchase any controlled substance
  • and felony petit theft.

However, if you have one of these prior offenses AND any other felony conviction that is not one of the offenses listed above, you may qualify as an HO if one of those convictions occurred within the last five years.

Now don't be alarmed. These prior convictions must have separate sentencing dates. That is, somebody charged with aggravated assault and possession of cocaine in the same information cannot be an HO if they get arrested on another felony within the next five years. Those two offenses would qualify someone as an HO if the sentencing dates were different. For example, Client has a prior aggravated assault charge, which he pleaded guilty to on January 1, 2000, and received a withhold of adjudication followed by one year of probation. Some years later, Client gets arrested again and is charged with grand theft. On January 1, 2006, he pleads guilty and receives an adjudication with credit for time served.

On January 1, 2010, Client gets arrested and is charged with burglary of an unoccupied dwelling, or a home burglary. Due to the prior record, Client would be designated as an HO.

When this happens, the State Attorney's Office will usually file a notice in court on the day of Client's arraignment. They will formally announce that Client is an HO, and that he is now facing a maximum of 30 years in prison, instead of 15, which is standard for a burglary. The State Attorney's Office may also seek to increase Client's bond, even if Client bonded out on his charge weeks ago. The State will argue that the increase in possible prison time makes Client a flight risk. It is not uncommon in this situation for judges to take accused persons back into custody and raise a bond, sometimes as high as $100,000. That means if your original bond was $7,500, and your family paid a bondsman $750, they must now pay a bondsman $10,000 to get you back out!

Both the Miami-Dade State Attorney's Office and the Broward State Attorney's Office treat these cases very carefully, with plea offers almost always including prison time. When I was a prosecutor in Miami-Dade County, I prosecuted hundreds of Habitual Felony Offenders. Many times, those were the cases that went to trial.

If you or a loved one has been designated a Habitual Felony Offender, or is at risk of being designated one due to their prior record, contact me so that we may discuss the available options. I know how seriously these cases are treated by prosecutors. It's important that your criminal defense attorney know how to properly handle these types of matters.

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