I know what you're asking yourself, "why should I care about the Anti-Murder Act, I didn't kill anyone?". Well, don't let the title fool you. This has very little to do with murder. Basically, the Act prevents a judge from placing certain offenders back on probation if they're found to be a "danger to the community". So, many folks who violate their probation under the Act will not be reinstated to probation. Unfortunately, that means VOP's under this act will not be released from jail any time soon.
To understand how the Anti-Murder Act works, let's take a look at who qualifies under the Act.
I've put this section underneath the VOP part of the website because this statute only deals with violations of probation. And, it only deals with a few specific offenders, those who are called "violent felony offenders of special concern." If you're not a violent felony offender of special concern, stop reading this. Most folks who have this title don't even know it. Typically, the violation of probation affidavit is stamped on the top right corner "Violent Felony Offender of Special Concern". Yes, they have a rubber stamp for this.
This law, found in Florida Statutes 948.06(8), deals with bond issues and sentencing on Violations of Probation (VOP) or Violations of Community Control for those considered "Violent Felony Offenders of Special Concern".
The Anti-Murder Act makes life more difficult for those who violate probation, in three ways. First, the statute can make it impossible to have a bond set on the VOP. So, if you're on probation for, say, burglary of a dwelling, and then arrested on a violation--no bond hearing for you. The anti-murder act requires "no bond" for such violations unless the violation is based on a failure to pay fines or restitution.
Second, the statute ties the hands of the sentencing judge by making it impossible to reinstate probation when the defendant is found to be a "danger to the community". These so-called "danger hearings" are interesting, but we often know how the judge is going to rule before the hearing is held. Basically, these danger hearings have become a formality to comply with this statute. The rules for determining whether or not a defendant is a "danger to the community" depend on several factors, but an important aspect of this finding is that the judge must make this determination in writing.
Third, the Anti-Murder Statute causes the points on a defendant's VOP scoresheet to increase substantially (the scoresheet points for a VOP technical violation are typically 6 points, but under the Anti-Murder Statute they doubled to 12 points. Same goes for a new felony conviction, non-anti-murder VOP is only 12 points, but an anti-murder VOP on a new felony scores an additional 24 points).Who Qualifies as a Violent Felony Offender of Special Concern?
Here are a few common ways to qualify. First, you fall under the Anti-Murder Act if you're on probation or community control for certain offenses, including, but not limited to, Robbery, Lewd Act, Aggravated Battery, Sexual Battery, Murder (of course), Kidnapping, and Aggravated Assault. Also, the Anti-Murder Act applies to a defendant's VOP if the new felony accusation is one of the above-listed offenses, or for those defendant's who have a serious conviction in their past criminal history.
There are approximately 45 "qualifying offenses" that will tag a person "Anti-Murder". What this means is that if you're on probation for any of these offenses, or violated probation by being arrested for such an offense, or have a prior such offense (even a withhold of adjudication counts), then you qualify under the Anti-Murder Act. Here's the list of qualifying offenses:
- Offenses involving children, like kidnapping, false imprisonment, or luring or enticing a child
- Murder, attempted murder, or manslaughter
- Aggravated battery
- Sexual battery
- Lewd or lascivious molestation/battery/conduct/exhibition
- Robbery, carjacking, home invasion
- Sexual performance by a child
- Computer pornography, transmission of such, or selling or buying of minors
- Poisoning food or water
- Abuse of a dead human body
- Burglary offenses (if its a first or second-degree offense, burglary of a conveyance is a third-degree felony, and thus, it is not a qualifying charge)
- Aggravated Assault
- Aggravated Stalking
- Aircraft Piracy
- Unlawful throwing, placing, or discharging of a bomb
- Any of these offenses committed in another state or country may still county as a "qualifying offense"
- An "Attempt" of any of the above may also constitute a "qualifying offense"
Some judges have a brief hearing called a "danger hearing". Again, this Act requires a finding that a probationer is either (A) a danger to the community (meaning the court cannot reinstate probation) or (B) not a danger to the community (meaning it is legally permissible to reinstate supervision). Either way, the Anti-Murder Act requires the judge to make a written determination as to whether or not the person who violated probation is a danger to the community.
Florida Statute 948.06(8)(e) lists the factors the court should consider in making its "danger" determination. Technically, we don't hold too many danger hearings because this determination is typically baked right into the plea agreement. What I mean is, if we negotiate a VOP sentence that involves reinstatement, the prosecutor would have to stipulate to the fact that my client is not a danger to the community. The state's agreement is not enough, the judge must still make a written finding to the sentencing document which says, in effect, "Defendant poses no danger to the community."
When there isn't a plea agreement in place and we conduct an "actual" danger hearing, the judge will have to consider the following factors:
- the nature and circumstances of the violation, and the nature of any new charges,
- the nature of the current case for which the offender is on probation, and his prior record,
- the defendant's willingness to non-jail sanctions (For example, are you willing to do treatment? Some people are, some are not),
- the strength of the VOP evidence against the defendant
- any other factors the judge wants to throw in there (Yes, every statute seems to have a "catch-all" provision).
As you can see from the above five factors, a judge's determination on this issue will be pretty subjective. After all, to qualify as a violent felony offender, you must have a serious felony lurking someone, and this charge can be used under subsection (a) or (b) to label an offender a danger to the community. Seems a bit circular, right? Anyway, before attempting to navigate this tricky VOP statute, feel free to call criminal defense attorney John Guidry for a free consultation regarding your rights. Yes, you heard me, the call is free, so don't be shy.