Florida’s Three Strikes Law, formally known as the Habitual Felony Offender or “HFO” Law, imposes severe penalties on repeat felony offenders and aims to deter habitual criminal behavior through sentencing enhancements that give judges and prosecutors significant leverage in plea negotiations and greater discretion at sentencing for enhanced prison time.
Under Florida Statutes 775.084(1)(a), individuals with two or more prior predicate felony convictions who get arrested for a third or subsequent qualifying felony can face extended prison sentences by being subjected to enhanced (often doubled) statutory maximum sentences.
This guide explains how the Habitual Felony Offender Law works, the role of felony classifications, and strategies for defending against these charges and enhancements. Florida’s Habitual Violent Felony Offender, Violent Career Criminal, and Three-Time Violent Felony Offender Laws will be discussed in future guides by Woolsey Morcom.
Florida’s Three Strikes Law Explained
Florida’s Three Strikes Law, formally called the Habitual Felony Offender (HFO) Law, targets repeat offenders with two or more prior predicate felony convictions who get arrested and charged with a third (or subsequent) qualifying felony conviction. Key aspects include:
● Sentencing Enhancements: A third (or subsequent) qualifying felony conviction triggers enhanced penalties, such as doubling maximum sentences for third-degree felonies and second-degree felonies, and making a first-degree felony punishable by up to life imprisonment.
● Qualifying Prior Felony Convictions: Only one of the two prior qualifying felonies can be for a third-degree Possession of a Controlled Substance or similar possession of narcotics conviction. In other words, if a defendant’s only prior felony convictions are both for Possession of Cocaine, and the defendant is charged with a third felony conviction for Sale of Cocaine, the defendant would not be subject to being classified as a Habitual Felony Offender (or what is commonly referred to as being “habitualized”). Misdemeanor convictions can never be used to habitualize a defendant for HFO purposes.
● Qualifying Current Felony Charge: Just like a defendant’s prior two felony convictions for third-degree felony possession of narcotics offenses cannot be used by themselves to render a defendant eligible to be classified as a Habitual Felony Offender, the third or subsequent charge also cannot be a third-degree felony possession of a controlled substance or related narcotics offense. In other words, even if a defendant had 10 prior felony convictions ranging from drug trafficking to burglary convictions, if the new arrest charge is only a third-degree possession of a controlled substance or related narcotics possession offense, the defendant is not subject to being enhanced as a Habitual Felony Offender.
● Timing Requirements: The current HFO eligible felony arrest must occur within five years of the defendant’s last qualifying felony conviction date or release from a prison or jail sentence, probation, community control, or conditional release, whichever comes latest in time. As an example, if a defendant, who had two prior felony convictions for Burglary to a Conveyance, with the last conviction/release from jail on January 1, 2020, gets arrested on December 21, 2024 for Possession of a Firearm by a Convicted Felon (a second-degree felony ordinarily punishable by up to 15 years in prison), the defendant would be eligible to be classified as a Habitual Felony Offender and face an enhanced maximum sentence of up to 30 years in prison. If, however, the new arrest did not occur until January 15, 2025, the defendant would not be subject to enhancement under the HFO Law.
| Felony Degree | Example Crimes | Standard Penalty | HFO Penalty |
| Third-Degree | Burglary to a Structure or ConveyanceAggravated assaultGrand Theft AutoBattery on a Person 65 Years or Older | Up to 5 years | Up to 10 years |
| Second-Degree | Burglary to a DwellingSale or Delivery of CocainePossession of a Firearm by a Convicted Felon Strong Armed Robbery | Up to 15 years | Up to 30 years |
| First-Degree | Drug TraffickingArsonKidnappingArmed Possession of Narcotics | Up to 30 years | Up to Life Imprisonment |
Consequences of Habitual Offender Designation
A Habitual Felony Offender designation drastically alters sentencing ranges and the Court’s discretion:
● Extended Prison Terms: For example, a Second-Degree Felony ordinarily punishable by up to 15 years becomes punishable by up to a 30-year sentence.
● Collateral Impacts: Loss of voting rights, difficulty securing employment, and heightened scrutiny during future legal proceedings.
How to Fight Repeat Felony Charges and Defend Against Becoming a Habitual Felony Offender
Challenging a Habitual Felony Offender designation requires strategic defenses tailored to criminal defense law in Florida:
- Challenge HFO Enhancement Procedure – did the State of Florida and the court follow the statutory requirements in Florida Statute 775.084 prior to imposing a Habitual Felony Offender sentence?
For a defendant to be legally eligible to have his or her sentenced enhanced as a Habitual Felony Offender, the court must determine in a separate proceeding if the defendant is a Habitual Felony Offender, which mandates: (1) the court obtain and consider a presentence investigation report prior to the imposition of a sentence as a habitual felony offender; (2) the State of Florida must file and serve on the defendant a legally proper and sufficient written notice in order to allow a sufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant; (3) all evidence presented shall be in open court with full rights of confrontation, cross-examination, and representation by counsel; (4) each of the findings required as the basis for such a sentence shall be found to exist by a preponderance of the evidence; (5) the court shall fingerprint the defendant for the purpose of identification of a habitual felony offender. See Fla. Stat. 775.084(3)(a)(1-5). If any of these procedures are not followed exactly as required by the HFO statute, a defendant’s Habitual Felony Offender sentence may be subject to later attack through the appellate courts or a motion for rehearing.
- Challenge Prior Convictions
Invalidating prior convictions due to procedural errors (e.g., lack of legal representation, no fingerprints attached to the prior conviction for comparison purposes against the defendant’s known fingerprints) can remove or negate prior felony convictions or “strikes” from a defendant’s record.
- Negotiate Charge Reductions
An experienced criminal defense attorney may be able to negotiate plea deals to downgrade felony charges which would render HFO enhancement impossible (e.g., reducing a Second-Degree Felony Possession with Intent to Sell or Distribute Cocaine to a lesser third-degree Possession of Cocaine offense).
- Dispute Evidence Admissibility and Validity
Suppress improperly or illegally obtained “fruit of the poisonous tree” evidence to weaken the prosecution’s case.
- Argue Mitigating Factors
Demonstrate rehabilitation efforts, such as completing or willingness to complete a substance abuse program, prior or current mental health diagnoses, experience of prior trauma, prior military or community service or volunteer efforts, to advocate for a court to exercise its discretion and find that it is not necessary for the protection of the public to sentence the defendant as a Habitual Felony Offender as set forth in Florida Statute 775.084(6) .
Why Hire a Criminal Defense Attorney in Florida?
Navigating Florida’s Three Strikes Law cases demands expertise in criminal defense law. An experienced attorney can:
● Analyze prior convictions for weaknesses.
● Negotiate with prosecutors to avoid habitual offender classification.
● Present evidence to counter the prosecution’s claims.
Frequently Asked Questions
Can judges deviate from mandatory sentences?
Yes. While the HFO Law imposes strict guidelines, judges retain broad discretion on their sentencing options. Even if a defendant is properly “habitualized” by the State of Florida prior to sentencing, judges do not have to impose the enhanced statutory maximums, and, in fact, if the court finds that sentencing a defendant as a Habitual Felony Offender is not necessary for the protection of the public, the court does not have to sentence a defendant as a Habitual Felony Offender at all as long as the court makes the written findings required by Florida Statute 775.084(3)(a)(6).
Does the law apply to non-violent crimes?
Yes. The HFO law applies not only to violent felony charges, but also to non-violent felony charges such as sale of narcotics, burglaries, grand thefts, and related offenses. As explained above, the HFO law does not apply to third-degree felony possession of a controlled substance or related possession charges.
What if I received a withhold of adjudication on one or more of my prior felony convictions? Can the State of Florida still use that to enhance me as a Habitual Felony Offender? Generally, yes. Pursuant to Florida Statute 775.084(2), “For the purposes of this section, the placing of a person on probation or community control without an adjudication of guilt shall be treated as a prior conviction.”
What if my prior felony convictions are from out of state? Can they still be used to classify me as a Habitual Felony Offender? It depends. In many cases, the State of Florida may not be able to obtain certified copies of prior felony convictions from other state agencies which have fingerprints attached to them of sufficient comparison value to be able to compare against the defendant’s fingerprints. If the State of Florida is not able to establish that the defendant is not the same person as named in the out of state felony judgment, the out of state judgment may not be used for HFO enhancement purposes.
Conclusion
Florida’s Three Strikes Law imposes life-altering penalties for repeat felony offenders, but the skilled Criminal Defense Attorneys at Woolsey Morcom can help mitigate the risks. By challenging prior convictions, negotiating charges, and leveraging defenses under criminal defense law in Florida, defendants can avoid harsh sentencing outcomes. If facing habitual felony offender allegations, contact one of our criminal defense attorneys at Woolsey Morcom immediately to protect your rights and future.
