Implications of the Anti-Murder Act for Local Courts and Attorneys

By Jowita Wysocka

Despite the estimated $270 million price tag, most of which consists of the cost of building and furnishing new prison facilities, the Florida legislature unanimously passed SB 146, the “Anti-Murder Act” (AMA) in March.  The bill was signed by Governor Charlie Crist on March 12, 2007 and went into effect the same day.  Even before the law’s rapid passage, the local judiciary had a comprehensive plan in place to handle the anticipated influx of arrests and inmates and to comply with the new notification and database maintenance requirements.  Local criminal defense attorneys also began preparing themselves for a spike in violation of probation cases.

The AMA is the initiative of Governor Crist and requires that certain offenders who violate probation be held in jail until there is a hearing to determine whether they should be released on bail.  For certain offenders with a repeated history of violent crimes, the judge must also determine whether the individual poses a danger to the community. While the legislative intent was apparently to focus on violent offenders, a consequence of the new law is that a defendant who is on probation for any felony act but who has a qualifying offense in his past is also subject to the AMA.

The AMA continues to draw criticism about its high prison costs and unproven effectiveness.  When the Department of Corrections adopted a “zero-tolerance policy” for all probation violations following the murder of Carlie Brucia in 2004, it created an enormous strain on the state and local criminal justice systems.  Under that policy, probation and law enforcement officers were given the discretion to arrest, but a judge could issue a bond the next day and allow them to remain free.  By contrast, the AMA removes the courts’ ability to issue these bonds.  Therefore, while the AMA arguably narrows the focus of the previous “zero-tolerance policy” to primarily violent probation violators, it will nevertheless “increase the burden on the court and prison systems,” says J.S. Lucas Fleming, a former state prosecutor who is now a criminal defense attorney at the Fleming Law Group in St. Petersburg.

Last year, approximately one out of every four new cases received by Fleming’s firm included violations of probation and house arrest.  Fleming and his associates have seen firsthand the strain on the system created when the zero-tolerance policy was adopted in 2004, and they anticipate an even greater burden on the system when the AMA goes into effect.  As Fleming observed,

We see more clients coming in with violation of probation issues needing our help, when in the past, individuals thought they could handle violations of probation on their own.  We anticipate more people needing help with these violations of probation, especially when they need to have a hearing before they can be released.

Scope of the Anti-Murder Act

In addition to creating two new criminal statutes, the AMA amends and re-enacts several existing ones.  Its overriding purpose is to prevent future violent crimes by imposing stricter mandates on alleged probation or community control violations by:

(1) specified violent felony offenders of special concern;

(2) individuals on felony probation who are arrested for a qualifying offense; and

(3) individuals on felony probation who have previously been found to be either habitual violent felony offenders, three-time violent felony offenders, or sexual predators, and who are arrested for committing a qualifying offense.

The term “violent felony offender of special concern” (VFOSC) applies to individuals who are on felony probation or community control for committing certain offenses, including murder, kidnapping, aggravated or sexual battery, robbery, arson, stalking, aircraft piracy, and computer pornography.  § 903.0351, F.S. 

Bail, Hearing and Sentencing

The most significant provision in the AMA provides that individuals falling under any of these three categories must remain in custody and shall not be granted bail or any other form of pretrial release until there is a hearing.  §§ 903.0351; 948.06(4)(d)-(e), F.S.  In the case of VFOSC offenders, the judge also must determine whether the individual poses a danger to the community.  Neither the “no bond” requirement nor the hearing requirement applies to probation or community control violations based solely on the failure to pay costs, fines, or restitution.

If, after the hearing, the court determines that a VFOSC has committed a violation of probation or community control (other than a failure to pay costs, fines, or restitution), § 948.06(4)(e)(2)(a) requires that the court revoke probation and sentence the offender up to the statutory maximum. 

“Qualifying Offense” Defined

 Under the amended § 948.06, F.S., a “qualifying offense” is any of the following*: 

• kidnapping or attempted kidnapping (including false imprisonment as well as luring or enticing a child);

• murder or attempted murder (including attempted felony murder or manslaughter);

• aggravated battery or attempted aggravated battery;

• sexual battery or attempted sexual battery;

• lewd or lascivious battery or attempted lewd and lascivious battery (including molestation, lewd or lascivious conduct, or lewd or lascivious exhibition);

• robbery or attempted robbery (including carjacking or home invasion);

• lewd or lascivious or attempted lewd or lascivious offense upon or in the presence of an elderly or disabled person;

• sexual or attempted sexual performance by a child;

• computer pornography (including transmission of child pornography or selling/buying of minors);

• poisoning food or water;

• abuse of a dead human body;

• any burglary or attempted burglary offense (first or second degree felony);

• arson or attempted arson;

• aggravated assault;

• aggravated stalking;

• aircraft piracy;

• unlawful throwing, placing, or discharging of a destructive device or bomb;

• treason;

• any offense committed in another jurisdiction which would be an offense listed in this paragraph if that offense had been committed in this state.Readers are encouraged, however, to reference the specific statutory sections for the above list, since there are some fairly specific exceptions. For example, the AMA does not apply to acts of sexual battery with no force or violence.

Notification Requirements

The AMA also now imposes certain notification requirements on the Department of Corrections, the appropriate county, the courts, and the state attorney or prosecutor with regard to an individual’s status as a VFOSC.  Specifically, § 948.064, F.S. requires the Department of Corrections to develop a system for identifying the offenders in its database and post a listing of all VFOSCs under community supervision on the Department of Law Enforcement’s Criminal Justice Intranet.

Additionally, the county where the arrested person is booked must now provide the court with the information it needs to proceed with the hearing.  The court, in turn, is required to assist the Department by creating and maintaining an automated system to provide the information listed in the previous paragraph to the court with the jurisdiction to conduct the hearing.  Finally, the state attorney or statewide prosecutor must advise the court at each critical stage in the judicial process as to whether an alleged or convicted offender falls under one of the three categories of offenses created by the AMA, as well as whether the person was arrested for committing a qualifying offense.

The Verdict

In light of the increased number of hearings, inmates, and administrative requirements imposed by the AMA, local attorneys, courts, and jails are bracing themselves.  Although Governor Crist is prepared to provide the necessary funds to accommodate the increase in jail beds, jail personnel, probation officers, and judges, critics are skeptical that the state will be able to meet the demands created by the new law.  “All in all, the system will surely be burdened even more than it was in 2003,” says Fleming. 

© 2007 The Fleming Law Group – All rights reserved.