Violent Felony Offenders of Special Concern – Whittaker v. State

The Law Office of Matthew Glassman is back again with another installment of our weekly caselaw update.  This week brings us a Fourth District case (pdf): Whittaker v. State, 4D16-1036, which gives a great analysis of the proper procedure that trial courts should use when handling a violation of probation for someone who might be considered a Violent Felony Offender of Special Concern (usually abbreviated to VFO or VFOSC). As always, the information provided in this blog is for educational purposes only, and should not be considered legal advice.  If you or someone you know has violated their probation, be sure to reach out to me as soon as possible so that I can begin to protect all of your rights at this vital stage in the proceedings. 

Factual Summary

Mr. Whittaker was originally charged with aggravated battery with a deadly weapon (FS 784.045).  This charge is a second degree felony, punishable by up to 15 years in Florida State Prison.  The trial court judge sentenced Mr. Whittaker to 5 years of probation.  Unfortunately, Mr. Whittaker was accused of six probation violations, including one violation for committing a new offense of resisting an officer without violence (FS 843.02), a first degree misdemeanor punishable by up to a year in the county jail.  Mr. Whittaker entered an open plea to the violation, and the trial court found him to not be a danger, revoked his probation, and sentenced him to a guidelines sentence of 49.05 months Florida State Prison. (For more information on guidelines and scoresheets, check out my sentencing legal resources page.)

Legal Analysis

The Appellate Court’s main issue with Mr. Whittaker’s case was how the probation violation was handled by the trial court.  In most circumstances, when an individual violates probation, the court has many options in how to handle the violation. The court could dismiss the violation, reinstate probation, modify the probation (by perhaps including additional treatment measures or a stay in county jail), or revoke the probation. If the court revokes the probation, the court must sentence the defendant to at least the bottom of the guidelines and can sentence the defendant up to the maximum permissible sentence (in Mr. Whittaker’s case, 15 years Florida State Prison). 

If, however, the defendant is a Violent Felony Offender of Special Concern, the options available to the court are more limited, and more punitive.  A person is considered a VFOSC if the person is on probation for a qualifying offense as listed in the statute, FS 948.06(8)(c).  The most common qualifying offenses are: burglary of a dwelling, robbery, aggravated battery or aggravated assault, murder or attempted murder, and sexual battery. If the person qualifies, then before proceeding to sentencing, the court must first hold a “danger hearing” to determine whether the individual poses a danger to the community.   The court must put its reasoning for the finding in writing and must base that finding on the following factors: 

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

If the court finds the offender to be a danger to the community, then the court must sentence the defendant to at least the guidelines sentence, and up to the maximum possible sentence. In this case, the sentencing judge did not make this detailed written finding about whether Mr. Whittaker was in fact a danger, so the case was returned to the lower court for a new sentencing hearing.

In additional to undergoing this danger hearing process, a person who is a VFOSC is penalized on the guidelines scoresheet by having each probation violation count for double the amount of points that a non-VFOSC would receive.  A probationer who is a VFOSC and commits a new felony offense on probation receives 24 additional points on their scoresheet, versus the normal 12 (or 12 instead of the normal 6 if the violation is only technical in nature).  As the court notes, these additional points on the scoresheet are added to anyone who qualifies as a VFOSC, regardless of whether the court finds the person to be a danger to the public.  Every additional point that a defendant receives on their scoresheet means that the lowest permissible sentence is increased. 

Essentially, the Violent Felony Offender of Special Concern provisions of the probation statute mean that a defendant is more likely to be sent to prison on a probation violation, and for a longer time, than a person who is not designated a VFOSC.  It is, therefore, incredibly important that you reach out to qualified counsel if you find yourself charged with violating your probation on a qualifying offense.  I am available 24-7 to offer a consultation either by phone at 954-908-3399 or email at matt@matthewglassmanlaw.com.

Thanks again for reading!