Florida/Georgia Personal Injury & Workers Compensation

...See § 775.084, Fla. Stat. (2001). However, there are other statutes which allow the courts to reclassify the offense and thus exceed the statutory maximum sentence: section 775.0845, Florida Statutes (2001), wearing a mask during the commission of a crime; section 775.085, Florida Statutes (2001), hate crimes; section 775.087, Florida Statutes (2001), possession of a weapon during the commission of a crime; and section 775.0875, Florida Statutes (2001), use of a firearm taken from a law enforcement officer....

...they’re in high school. 3 contempt, ridicule or obloquy.”2 He also believed that, given the racially motivated content of the pamphlet, the crime could be enhanced to a felony under Fla. Stat. § 775.085, a law that allows the enhancement of a crime that “evidences prejudice.”3 Alexander spoke with an Assistant State Attorney on the telephone, who conferred with colleagues and agreed that there was probable cause to arrest under § 836.11 and that the crime could be enhanced to a felony under § 775.085. The students were arrested and transported to either the Juvenile Assessment Center or the Turner Guilford Knight Correctional Facility (“TGK”), depending on whether they were over eighteen years old. 2 The rel...

...any religious group to hatred, contempt, ridicule or obloquy unless [the name and address of those responsible for the publication] is clearly printed or written thereon. Fla. Stat. Ann. § 836.11 (West 2001). 3 The relevant portion of § 775.085 states: The penalty for any felony or misdemeanor shall be reclassified as provided in this subsection if the commission of such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnici...

...national origin, mental or physical disability, or advanced age of the victim: **** 2. A misdemeanor of the first degree is reclassified to a felony of the third degree. Fla. Stat. Ann. § 775.085 (West 2001). 4  Cuesta, who was over eighteen years old, was taken to TGK....

...tes and found § 836.11. Officer Alexander then called the State Attorney’s Office and spoke with Assistant State Attorney Carlos Guzman about the possibility of making an arrest under § 836.11, and the possibility of enhancing the crime under §775.085....

...If you find only that the defendant committed (crime charged) but did not wear a hood, mask or other device that concealed [his][her] identity, then you should find the defendant guilty only of (crime charged). (18) 3.05(f) AGGRAVATION OF A FELONY BY EVIDENCING PREJUDICE F.S. 775.085 [New] If you find that (defendant) committed (crime charged) and you also find that during the commission of the crime (defendant) 1....

...ames T. Miller, Co-Chairman, L. Donald Murrell, President, and Robert S. Griscti, Turner & Griscti, P.A., Gainesville, amicus curiae for FL Ass'n of Crim. Defense Lawyers (FACDL). *1073 SHAW, Justice. We have for review a trial court order declaring section 775.085, Florida Statutes (1989), commonly referred to as Florida's Hate Crimes Statute, unconstitutional....

...." and "Jewish kike, come on Jewish lawyer ... I'm going to kick your ass... ." Stalder was charged with violating section 784.03(1), Florida Statutes (1989) (simple battery) for pushing Cohen, and the penalty was subject to reclassification pursuant to section 775.085(1) from a first-degree misdemeanor to a third-degree felony....

...The State appealed and the district court certified the matter as requiring immediate resolution by this Court. [1] Stalder contends that the statute is both vague and overbroad and punishes pure thought and expression in violation of the First Amendment. The State, on the other hand, contends that section 775.085 is neither unconstitutionally vague nor overbroad — the statute simply enhances punishment for those crimes that are committed because the victim has one of several identified characteristics....

...It is the State's position that the statute punishes criminal action, not speech, and thus does not implicate the First Amendment. We note that Florida's district courts are in disagreement on this issue. See Richards *1074 v. State, 608 So.2d 917 (Fla. 3d DCA 1992) (section 775.085 void for vagueness); Dobbins v. State, 605 So.2d 922 (Fla. 5th DCA 1992) (section 775.085 neither vague, overbroad, nor violative of the First Amendment). Section 775.085 requires penalty enhancement where the commission of any felony or misdemeanor evidences prejudice based on certain characteristics of the victim: 775.085 Evidencing prejudice while committing offense; enhanced penalties....

...(b) A misdemeanor of the first degree shall be punishable as if it were a felony of the third degree. (c) A felony of the third degree shall be punishable as if it were a felony of the second degree. (d) A felony of the second degree shall be punishable as if it were a felony of the first degree. Section 775.085(1), Fla....

...lecting a victim, not the defendant's ideology, that is targeted. *1076 We conclude that our Florida statute contains elements similar to both the St. Paul ordinance struck down in R.A.V. and the Wisconsin statute upheld in Mitchell. As noted above, section 775.085 proscribes bias-evidencing crimes....

...This tenuous nexus, which amounts to mere temporal coincidence, is irrelevant for constitutional purposes. The proscribed conduct consists of pure expression indistinguishable from the bias-inspired expression targeted by the St. Paul ordinance in R.A.V. and cannot be selectively banned. The question before us is whether section 775.085 can pass constitutional muster by being read narrowly as proscribing the first class of conduct....

...nflicts great individual and societal harm and is thus deserving of enhanced punishment. The legislature's apparent intent is to discourage criminal acts directed against groups that have historically been subjected to prejudicial acts. A reading of section 775.085 as embracing only bias-motivated crimes is entirely consistent with this intent....

...The statute requires that it is the commission of the crime that must evidence the prejudice; the fact that racial prejudice *1077 may be exhibited during the commission of the crime is itself insufficient. Dobbins, 605 So.2d at 923. Based on the foregoing, we hold that section 775.085, Florida Statute (1989), applies only to bias-motivated crimes....

..."While the First Amendment confers on each citizen a powerful right to express oneself, it gives the [citizen] no boon to jeopardize the health, safety, and rights of others." Operation Rescue v. Women's Health Center, Inc., 626 So.2d 664, 675 (Fla. 1993). We quash the trial court's order finding section 775.085, Florida Statutes (1989), unconstitutional and remand for proceedings consistent with this opinion....

...legislation. Brown v. State, 358 So.2d 16, 20 (Fla. 1978) ("The Florida Constitution requires a certain precision defined by the legislature, not legislation articulated by the judiciary."); see also art. II, § 3, Fla. Const. The apparent goals of section 775.085, Florida Statutes (1989) are laudable, and I firmly believe that bias-motivated conduct is reprehensible and deserving of enhanced punishment. Yet no matter how commendable I find an enhanced penalty for bias-motivated criminal conduct, section 775.085 — by design or by unartful wording — also imposes an enhanced penalty for conduct that "evidences prejudice while committing [an] offense." [9] The Legislature's use of the verb *1080 "evidence" indicates that the statute applies no...

...ade County v. Bridges, 402 So.2d 411, 414 (Fla. 1981), receded from on other grounds by Makemson v. Martin County, 491 So.2d 1109 (Fla. 1986), cert. denied, 479 U.S. 1043, 107 S.Ct. 908, 93 L.Ed.2d 857 (1987). The majority has impermissibly narrowed section 775.085 and now puts its own legislative gloss on the statute....

...BARKETT, C.J., concurs. NOTES [1] The record before us in State v. Leatherman, No. 80,126, contains scant facts. Leatherman was charged with aggravated assault for pointing a handgun at and threatening the victim. He also was charged with violating section 775.085(1), Florida Statutes (1989), for evidencing prejudice during the assault....

...ons. The district court certified the case here and the two cases were consolidated. The State has submitted essentially the same brief in both cases and Leatherman has chosen to take no action pending our ruling in State v. Stalder, No. 79,924. [2] Section 775.085 has since been amended to include "sexual orientation" in its list of proscribed factors and to provide: (3) It shall be an essential element of this section that the record reflect that the defendant perceived, knew, or had reasonable grounds to know or perceive that the victim was within the class delineated herein. § 775.085, Fla....

...A woman may hate blacks, but she cannot refuse to hire one simply because of race. Id. A landlord may think Jews evil, but he cannot refuse to rent to a Jewish couple because of their ethnic background. § 760.23, Fla. Stat. (1991). [9] As noted in the majority opinion, the title of section 775.085, Florida Statutes (1989) reads: "Evidencing prejudice while committing offense; enhanced penalties." (Emphasis added.) Subsection (1) says: "The penalty for any felony or misdemeanor shall be reclassified as provided in this subsectio...

...316.1935(1) Category Two: Reckless Driving Fla. Stat. 316.192 _________ Comment This instruction is based on the text of section 316.1935(3), Florida Statutes, (Supp.1998). [13: A Revised Instruction for Crimes Motivated by Prejudice] AGGRAVATION OF A FELONY BY EVIDENCING PREJUDICE F.S. 775.085 If you find that (defendant) committed (crime charged) and you also find that during the commission of the crime (defendant) 1....

...crime charged) evidencing prejudice. If you find that the defendant committed (crime charged) but did so without evidencing prejudice, then you should find the defendant guilty only of (crime charged). AGGRAVATION OF A FELONY BY EVIDENCING PREJUDICE § 775.085 The punishment provided by law for the crime of (crime charged) is greater if the defendant was motivated by prejudice to commit the crime....

...and has one or more physical or mental limitations that restrict the victim's ability to perform the normal activities of daily living. "Advanced age" means that the victim is older than 65 years of age. ________ Comment This instruction is based on section 775.085, Florida Statutes (Supp.1998)....

...wore a device concealing his or her identity during the felony. See Wright v. State, 810 So.2d 873 (Fla.2002). *149 This instruction was adopted in July 1997 and amended in 2011. 3.3(f) AGGRAVATION OF A CRIME BY SELECTING A VICTIM BASED ON PREJUDICE § 775.085, Fla....

...licly or privately operated shelter designed to provide temporary living accommodations or (2) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings Comments This instruction is based on section 775.085, Florida Statutes (Supp.1998)....

...nd Florida Constitutions. It is so ordered. GRIMES, C.J., and SHAW, HARDING and WELLS, JJ., concur. OVERTON, J., concurs in result only. NOTES [1] We have mandatory jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. [2] Section 775.085, Florida Statutes (1989).

...sexual battery; chapter 800, relating to lewdness and indecent exposure; or chapter 827, relating to child abuse, commits a felony of the third degree.... *488 § 847.0135(3), Fla. Stat. (2001) (emphasis added). In defending the constitutionality of section 775.085, Florida Statutes, Florida's Hate Crimes Statute, the Florida Supreme Court has held that "[w]hen protected speech translates into criminal conduct, even the Free Speech Clause balks....

...During the beating, Dobbins and others made such statements as "Jew boy," and "Die Jew boy." Dobbins was tried and convicted under the battery statute (Fla. Stat. 784.03(1)(a)) and sentenced under the enhancement provisions of the hate crime statute (Fla. Stat. 775.085)....

...We find the evidence sufficient to uphold the jury's verdict that Dobbins committed the proscribed act and that the commission of the act evidenced prejudice based on Daly's "ancestry, ethnicity, religion or national origin". The sole issue that we find merits discussion is the constitutionality of section 775.085, Florida Statutes (1989)....

...This argument seems to concede that if the statute permits enhancement only upon proof, beyond a reasonable doubt, that appellant committed the battery motivated, in whole or in part, because Daly was Jewish, the enhanced penalty would be appropriate. That is precisely the way we read the statute. Section 775.085 provides: The penalty for any felony or misdemeanor shall be reclassified as provided in this subsection if the commission of such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnicity, religion or national origin of the victim....

...eligion or gender ..." This clearly makes criminal the public expression of an intolerant opinion. We agree that the First Amendment prohibits intrusion into the rights of one to *924 freely hold and express unpopular, even intolerant, opinions. But section 775.085 does not punish intolerant opinions....

...terest in order and morality." * * * * * * We have long held, for example, that nonverbal expressive activity can be *925 banned because of the action it entails, but not because of the ideas it expresses. R.A.V., 112 S.Ct. at 2542-4. The purpose of section 775.085 is to discourage through greater penalties the discrimination against someone (by making such person the victim of a crime) because of race, color, or religion....

...In such cases it is not the content of the speech that is prohibited, but such act of discrimination. It does not matter why a woman is treated differently than a man, a black differently than a white, a Catholic differently than a Jew; it matters only that they are. So also with section 775.085....

...ighting words that are directed at certain persons or groups (which would be facially valid if it met the requirements of the Equal Protection Clause) ... Id., ___ U.S. at ___, 112 S.Ct. at 2548. In our case there is no equal protection challenge to section 775.085 which does prohibit "fighting words" directed at certain groups....

...ach, for appellant. Alan H. Schreiber, Public Defender, and Diane M. Cuddihy, Assistant Public Defender, Fort Lauderdale, for appellee. GROSS, Judge. Appellee William Hart was charged with corruption by threat under section 838.021(1) as enhanced by section 775.085 [1] , Florida Statutes (1995)....

...He moved to dismiss the enhancement portion of the charge under Florida Rule of Criminal Procedure 3.190(c)(4). After hearing testimony at an evidentiary hearing conducted under Rule 3.190(d), the trial court granted the motion and dismissed that part of the charge based on section 775.085....

...During transport from the breath testing facility to the Broward Sheriff's Office, Hart continually used the slur "nigger" in conjunction with threats of violence and intimidation. The trial court based its dismissal upon State v. Stalder, 630 So.2d 1072 (Fla.1994). In Stalder the supreme court construed section 775.085 as applying only to "bias-motivated crimes," which it defined as "any crime wherein the perpetrator intentionally selects the victim because of the victim's `race, color, ethnicity, religion, or national origin.'" Id....

...The targeted conduct here—the expression of bias— is related to the underlying crime in only the most tangential way: The expression and crime share the same temporal framework, nothing more. Id. A crime which shows prejudice only during its commission and not in its genesis falls outside the section 775.085 proscription. To qualify criminal conduct for sentencing enhancement under section 775.085, Stalder does not require that prejudice be the sole motivating factor for the underlying crime....

...5th DCA 1992), affirmed, 631 So.2d 303 (Fla.1994), which stated that an enhanced penalty was *387 appropriate under the statute if a battery was motivated "in whole or in part" because of religious prejudice. State v. Stalder, 630 So.2d at 1076. The essence of criminality under section 775.085 is that prejudice be a significant factor in bringing about the commission of the underlying crime, i.e., but for the racial enmity, the underlying crime would not have occurred....

...To use the Stalder analogy quoted above, jealousy could be one motive for A's battery of B, but the prosecution could demonstrate that the beating was planned and implemented because of the victim's race, a showing which would trigger sentencing enhancement under section 775.085....

...Comparing Hart's treatment of the Caucasian officer with that of the African American officer, and considering the quantity, detail, and venom of Hart's racist comments, a factfinder might also conclude that prejudice was a significant factor inducing him to make the threats, thus justifying a section 775.085 enhancement....

...ruction from the court. See Richards v. State, 643 So.2d 89, 91 (Fla. 3d DCA 1994). For these reasons, resolution of this case on a rule 3.190(c)(4) motion to dismiss was erroneous. REVERSED AND REMANDED. GLICKSTEIN and STONE, JJ., concur. NOTES [1] Section 775.085(1) mandates that the penalty for a crime be enhanced "if the commission of such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, or national origin of the victim."

...In addition, we approve for publication and use, with the modifications discussed below, instructions 3.3(f), 11.11, 14.5, and 14.6. [1] First, with respect to the proposed amendment to instruction 3.3(f) — Aggravation of a Felony by Evidencing Prejudice, section 775.085, Florida Statutes (2006), Florida's Hate Crimes Statute, provides for the reclassification of penalties for offenses committed against a victim based upon prejudice for reasons of race, color, ancestry, ethnicity, religion, sexual ori...

...part" on that perception or knowledge. The Committee proposed the quoted phrase, citing Dobbins v. State, 605 So.2d 922 (Fla. 5th DCA 1992), approved, 631 So.2d 303 (Fla.1994), a decision approved by this Court in upholding the constitutionality of section 775.085, Florida Statutes (1989). See State v. Stalder, 630 So.2d 1072, 1077 (Fla.1994). Because section 775.085 does not include the proposed language, however, we decline to add the phrase "in whole or in part" to instruction 3.3(f)....

...pening argument and a rebuttal argument after the opponent defendant has spoken. Comment This instruction was approved in 1981 and amended in 2007. 3.3(f) AGGRAVATION OF A FELONY BY EVIDENCING PREJUDICE CRIME BY SELECTING A VICTIM BASED ON PREJUDICE § 775.085, Fla....

...illness, and has one or more physical or mental limitations that restrict the victim's ability to perform the normal activities of daily living. "Advanced age" means that the victim is older than 65 years of age. Comment This instruction is based on section 775.085, Florida Statutes (Supp.1998)....

...5th DCA 1998), rev. granted, 728 So.2d 203 (Fla.1999). Aggravated assault with a deadly weapon without intent to kill is a third degree felony. See § 784.021(2), Fla. Stat. (1997). However, the trial court listed counts V-VIII as a second degree felony citing section 775.085, Florida Statutes (1997), which provides, in relevant part: 775.085....

...Appellants remaining points are either not preserved for appeal or are without merit. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DAUKSCH and PETERSON, JJ., concur. NOTES [1] § 790.10, Fla. Stat. (1997). [2] § 784.021(1)(a), Fla. Stat. (1997). [3] § 775.085, Fla. Stat. (1997). [4] § 775.087(2), Fla. Stat. (1997). [5] § 775.085, Fla....

...On appeal, the defendant alleges that his conviction must be reversed and a new trial granted because: (1) the jury was instructed on an alternative theory of battery not charged in the information; (2) prejudicial evidence was improperly introduced at trial; (3) section 775.085, Florida Statutes (2002), Florida's "hate crime" sentencing statute, is unconstitutional both on its face and as applied to him; and (4) the Miami-Dade County Miranda Form, which was used to inform the defendant of his rights was legally insufficient. We affirm. BACKGROUND INFORMATION The defendant was charged with one count of battery evidencing prejudice under sections 784.03 and 775.085, Florida Statutes (2002), for an incident that occurred at a convenience store in Cutler Ridge....

...d additionally found that the battery was motivated by the defendant's racial prejudice. The trial court sentenced the defendant as a habitual violent offender to seven years imprisonment with a mandatory minimum of five years under sections 784.03, 775.085, and 775.084(4), Florida Statutes (2002)....

...1987) (holding that the trial court's erroneous admission of evidence of the defendant's drug use was at most harmless error where there was ample direct evidence of the defendant's guilt); see also Bricker v. State, 462 So.2d 556 (Fla. 3d DCA 1985); Clark v. State, 378 So.2d 1315 (Fla. 3d DCA 1980). The Constitutionality of Section 775.085 The defendant also alleges that section 775.085 is unconstitutional on its face and as applied to him. The defendant contends that section 775.085 violates his First Amendment rights under the United States Constitution and Article I, section 4 of the Florida Constitution. This argument, however, has been rejected by the Florida Supreme Court in State v. Stalder, 630 So.2d 1072, 1076 (Fla.1994). In Stalder, the Court held that section 775.085 applies only to bias-motivated crimes— that is, those crimes wherein "the perpetrator intentionally selects the victim because of the victim's `race, color, ethnicity, religion, or national origin.'" Id. at 1077. The Florida Supreme Court in Stalder upheld the facial constitutionality of section 775.085 by limiting the statute to those crimes that are motivated by prejudice, as opposed to those incidents where the accused merely exhibits prejudice during the commission of the crime....

...wledge [of his race], [they] should find the defendant is motivated by prejudice to commit the crime." The jury instruction and verdict form used in this case correctly reflect the requirements specified in Stalder. Lastly, the defendant claims that section 775.085 is unconstitutional because it subjects him to double jeopardy in violation of the Fifth Amendment....

...North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). The defendant claims that the enhancement of his sentence under section 775.085 constitutes a double *1240 jeopardy violation because it punishes him for his act of committing the battery and for his thoughts in committing the battery....

...The battery in the instant case was reclassified because the battery on the victim was racially motivated. The wording of the statute confirms that the commission of a battery motivated by the perpetrator's racial prejudice against the victim is, in fact, a reclassification of the offense, rather than an enhancement: 775.085....

...Richards from final judgments of conviction and sentences for aggravated battery, as a reclassified first-degree felony, and simple battery, as a reclassified third-degree felony. The defendant contends that it was improper to reclassify these offenses under Section 775.085(1), Florida Statutes (1991), because, he asserts, this statute is unconstitutionally void for vagueness. He concedes, however, that he was properly convicted for aggravated battery, as a second-degree felony, and simple battery, as a first-degree misdemeanor. The central issue which is, therefore, presented by this appeal is whether section 775.085(1), Florida Statutes (1991), which reclassifies and enhances the criminal penalties for any felony or misdemeanor if the commission of such felony or misdemeanor "evidences prejudice based on the race, color, ancestry, ethnicity, reli...

...(1991)], and (2) a simple battery on Marcel Bruff [§ 784.03, Fla. Stat. (1991)]; both counts further charged that in committing the above offenses, the defendant "evinced prejudice based upon the race, color[,] ancestry, ethnicity, religion[,] or national original of the victim in violation of [§] 775.085 [Fla. Stat. (1991)]." (R.5-6). The defendant made a pretrial motion to strike the above-quoted allegations from the information or to limit its interpretation on the ground that section 775.085, Florida Statutes (1991), upon which such allegations rested, was unconstitutionally "vague and overly broad" in that the statute "contains no standards or definition of evidencing prejudice in the commission of a misdemeanor or felony." (R.20)....

...Meah saw the defendant strike Pringle in the jaw during the fight, but heard no racial epithets from anyone. At the close of all the evidence and after closing argument of counsel, the trial court instructed the jury, over objection (TR.194-95), concerning the elements for enhanced punishment under section 775.085, Florida Statutes (1991): "The punishment provided by law for the crimes of aggravated battery and battery is greater if the aggravated battery and battery were committed under certain circumstances....

...lowed by two-years probation. The defendant appeals. II The central point on appeal raised by the defendant is that the trial court erred in denying his motion to strike the enhancement allegations of both counts of the information; it is urged that section 775.085(1), Florida Statutes (1991), upon which the enhancement allegations were based, is unconstitutionally void for vagueness. Accordingly, the defendant contends that his convictions should be reduced to aggravated battery, as a second-degree felony, and simple battery, as a first-degree misdemeanor. We agree. A Section 775.085(1), Florida Statutes (1991) provides: "(1) The penalty for any felony or misdemeanor shall be reclassified as provided in this subsection if the commission of such felony or misdemeanor evidences prejudice based on the race, color, an...

...vagueness, where there is doubt, the doubt should be resolved in favor of the citizen and against the state," as "[c]riminal statutes are to be strictly construed according to the letter thereof." [4] B Measured by these standards, we conclude that section 775.085(1), Florida Statutes (1991), is unconstitutionally void for vagueness because, simply stated, it does not define with sufficient due process particularity what additional criminal act is required in order to reclassify and thus enhance the punishment of a felony or misdemeanor....

...The statute provides that the penalty for any felony or misdemeanor shall be reclassified so as to enhance the punishment for said offense "if the commission of such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, or national origin of the victim." § 775.085(1), Fla....

...1 (1990). We express no views, generally, on the constitutionality of such legislation, but do note that many such statutes differ in material respects from the Florida statute by utilizing arguably more specific statutory terms. We conclude only that section 775.085(1), Florida Statutes (1991), is unconstitutional as being void for vagueness; the fact that the statute may have been passed based on the noblest of intentions cannot change this result....

...did then and there commit a battery upon [the victim] by actually and intentionally touching or striking [her] against her will and the commission of this offense evidences prejudice based on ... sexual orientation... of [the] victim ... contrary to F.S. 784.041, F.S. 777.011 and F.S. 775.085.......

...Kenneth W. Shapiro of Berger & Shapiro, P.A., Ft. Lauderdale, amicus curiae for Anti-Defamation League of B'NAI B'RITH. SHAW, Justice. We have for review Dobbins v. State, 605 So.2d 922 (Fla. 5th DCA 1992), wherein the district court expressly ruled section 775.085, Florida Statutes (1989), commonly known as Florida's Hate Crimes Statute, constitutional....

...*439 Robert A. Butterworth, Atty. Gen., Laura Rush, Asst. Atty. Gen., Tallahassee, for appellee. ON MOTION FOR REHEARING PER CURIAM. Upon consideration of appellee's motion for rehearing and review of the trial court's order, we determine that because section 775.085, Florida Statutes (1989), was not in effect at the time the crimes were committed, such statute should not be considered in determining the validity of the departure sentence....

...As to reason seven, the record supports the finding that the motives of the crime were racial in nature. The underlying racial motivation for an offense is an unscoreable aspect of the crime on the guidelines scoresheet, and, prior to October 1, 1989, was not an element of any crime or a statutory-enhancing factor. § 775.085, Fla....

...Berger & Shapiro and Kenneth W. Shapiro, Ft. Lauderdale, for Anti-Defamation League of B'nai B'rith, as amicus curiae. Before HUBBART, COPE and GODERICH, JJ. HUBBART, Judge. In a prior appearance of this case, we held that Florida's Hate Crimes Enhancement Statute [§ 775.085, Fla....

...1994), in which the issue presented here was decided, we reverse the decision of the district court of appeal and remand for further proceedings consistent with our opinion in Stalder." State v. Richards, 638 So.2d 44 (Fla. 1994). In Stalder, the Court upheld the constitutionality of Section 775.085, Florida Statutes (1991), against an attack that the statute violated the Free Speech clause of the United States Constitution....

...and conclude that the trial court did not commit reversible error, as urged, in denying the defendant's pretrial motion to strike the enhancement allegations of both counts of the information below under the Florida Hate Crimes Enhancement Statute [§ 775.085, Fla....

...Karl Freudenberger was convicted and sentenced for three offenses that he committed against a Lutheran church: arson in the second degree, criminal mischief to a place of worship, and burglary of a structure. Mr. Freudenberger's sentences on the arson and burglary charges were enhanced under section 775.085, Florida Statutes (2003), commonly referred to as Florida's "Hate Crimes Statute." We affirm the judgments....

...damage greater than $200, section 806.13(2), a third-degree felony (count two); and burglary of a structure, section 810.02(4)(a), a third-degree felony (count three). The State sought to enhance the penalty for the arson and burglary offenses under section 775.085....

...Count two: criminal mischief to a place of worship resulting in damage greater than $200, five years. Count three: burglary of a structure, fifteen years. The length of the sentences for the arson and burglary offenses reflected the reclassification of these felonies to the felony of the next higher degree in accordance with section 775.085....

...This argument is without merit, and we affirm Mr. Freudenberger's convictions on the underlying offenses without further discussion. Second, Mr. Freudenberger argues that the trial court erred in enhancing the degrees of the offenses on the arson and burglary charges under section 775.085, the Hate Crimes Statute....

...Freudenberger concedes that the information supports a judgment of conviction on all counts. Instead, he argues that the information does not "properly allege the enhancement" and thus does not adequately put him on notice of the State's intent to pursue an enhanced sentence under section 775.085....

...We begin by comparing the pertinent statutory language with the enhancement allegations contained in the information: [ Statute: ] The penalty for any felony . . . shall be reclassified as provided in this subsection if the commission of such felony . . . evidences prejudice based on the . . . religion . . . of the victim. § 775.085(1)(a) (emphasis added). [ Information ] ... and during the commission of this [felony] did evidence prejudice based on the religion of APOSTLE'S [sic] LUTHERAN CHURCH. (Emphasis added.) We also note that the information included a reference to section 775.085 by the statute number....

...mployment of the preposition "during" in the information. We are guided in these grammatical investigations by the teaching of our supreme court in State v. Stalder, 630 So.2d 1072 (Fla.1994). In Stalder, the court adopted a limiting construction of section 775.085....

...s not subject to reclassification under the statute based on the limiting construction adopted in Stalder. Expanding on this theme, Mr. Freudenberger argues that the information does not allege conduct that would invoke the enhancement provisions of section 775.085 because the language used failed to allege that he selected the church as his victim because of its Lutheran faith....

...arging *556 document is substantially less than in the cases upon which he relies. The penalty enhancer that the State sought to apply to Mr. Freudenberger is not subject to increase or decrease in the degree of its severity. Unlike section 775.087, section 775.085 does not have multiple parts and a complex set of penalty provisions....

...judice." There are no such crimes, and arson and burglary of a structure are not lesser included offenses of them. As this court has previously noted, the term "hate crime" is a misnomer. See Woolfork v. State, 623 So.2d 823, 823 (Fla. 2d DCA 1993). Section 775.085 does not create a new category of crimes consisting of existing offenses that become elevated in degree when the element of motivation based on bias is present. Instead, section 775.085 is an enhancement statute providing for the reclassification of offenses under certain circumstances....

...Freudenberger merely exhibited prejudice based on religion during the commission of the arson and burglary offenses. Such a finding is insufficient under Stalder to warrant the enhancement of the penalty for the arson and burglary offenses in accordance with section 775.085. The State argues that the "as charged" language in the verdicts cures any deficiency because the information included a reference to section 775.085 by the statute number....

...[4] Nevertheless, the Woolfork court concluded that "[a]dding the words `as charged' [to the jury verdict form did] not help the situation because the charge was also incorrectly worded." Id. at 824. The deficiency in the jury's verdict in Woolfork prevented the application of the section 775.085 enhancement. Id. We also note that the Fourth District has found a similar jury verdict to be insufficient to support an enhancement under section 775.085....

...[5] *558 The language of the information and of the jury verdict in Woolfork is very similar to the language used in the information and in the jury verdicts under review in this case. As in Woolfork, we hold that the deficiency in the jury's verdicts prevents the application of the enhancement under section 775.085. Accordingly, we reverse Mr. Freudenberger's sentences on the arson and burglary offenses, and we remand this case to the trial court for resentencing on those offenses without the application of the section 775.085 enhancement....

...We affirm the sentence on the criminal mischief conviction. Judgments affirmed; sentences affirmed in part and reversed in part; and remanded. WHATLEY and SILBERMAN, JJ., Concur. NOTES [1] The standard jury instruction for "aggravation of a felony by evidencing prejudice," § 775.085, Fla....

...ry offenses with a motion filed under Florida Rule of Criminal Procedure 3.800(b)(2). See Whitehead v. State, 884 So.2d 139 (Fla. 2d DCA 2004); Jackson v. State, 852 So.2d 941 (Fla. 4th DCA 2003). [3] The 1997 version of the jury instruction for the section 775.085 enhancement directs the members of the jury that if they find certain facts then they are to "find the defendant guilty of (crime charged) evidencing prejudice." In re Standard Jury Instructions in Criminal Cases (97-1), 697 So.2d 84, 96-97 (Fla.1997)....

...rejudice." The revised version of the instruction approved in 2000 does not use the formulation "(crime charged) evidencing prejudice." In re Standard Jury Instructions—Criminal Cases (99-1), 765 So.2d at 705-06. [4] A standard jury instruction for section 775.085 was not adopted until July 1997....

...The authority for allowing a departure sentence for a racially motivated crime is found in Grant v. State, 586 So.2d 438 (Fla. 1st DCA 1991). Defendant attempts to distinguish Grant because in Grant the crime occurred prior to the effective date of section 775.085, Florida Statutes (1989), the hate crime statute....

...ed by ten years probation. This appeal followed. Judicial interpretation of a Florida statute is purely a legal question and, as such, is subject to de novo review. Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So.2d 376, 377 (Fla. 5th DCA 1998). Section 775.085, Florida Statutes, known as the "10/20/Life" statute, took effect July 1, 1999....

...CONCLUSION For the reasons explained above, we approve the result of the Third District's decision in Ponton and disapprove the decision in Rutherford. It is so ordered. CANADY, C.J., and LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur. NOTES [1] For purposes of this analysis, we rely upon the 1993 version of section 775.085 because the 1995 version of section 775.084 was amended by ch....

...Schultz, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. This appeal arises from the trial court's jury instructions during appellant's trial for aggravated assault with a deadly weapon, and appellant's penalty enhancement under section 775.085, Florida Statutes (1995), based on appellant's use of derogatory racial slurs during the commission of the crime....

...use the statute applies only to bias-motivated crimes under State v. Stalder, 630 So.2d 1072 (Fla.1994), the jury's finding that the defendant was guilty of a crime "evidencing racial prejudice" was insufficient to increase appellant's penalty under section 775.085....

...The bias-motivated and mask-wearing enhancement statutes are worded very similarly. In this case, appellant was convicted of aggravated assault with a deadly weapon, a third degree felony, but sentenced, because of the finding of racial prejudice, as a second degree felon under section 775.085(1)(c)....

...We now address the only argument made by the state, that the appellant did not object to the jury instruction or the form of verdict or sentence which flowed from the erroneous instruction. The finding of fact made by the jury in its verdict, that the appellant evidenced prejudice, is insufficient for enhancement under section 775.085, which, as interpreted in Stalder, requires that the crime be bias-motivated....

...Gen., Tallahassee, for appellee. PER CURIAM. Edward James Groover appeals the sentences imposed after he pled nolo contendere to one count of manslaughter by culpable negligence which evidenced prejudice based on race, contrary to sections 782.07 and 775.085, Florida Statutes (1991), and two counts of culpable negligence which evidenced prejudice based on race, contrary to sections 784.05(2) and 775.085, Florida Statutes (1991). Groover argues that section 775.085, commonly referred to as Florida's Hate Crimes Statute, is both facially unconstitutional and unconstitutional as applied. We affirm. We reject Groover's argument that section 775.085 is facially unconstitutional....

...Stadler, 630 So.2d 1072 (Fla. 1994), the supreme court rejected arguments that the statute is both vague and overbroad and punishes pure thought and expression in violation of the First Amendment by placing a narrowing construction on the statute. The supreme court held that section 775.085 "applies only to bias-motivated crimes," which was defined as "any crime wherein the perpetrator intentionally selects the victim because of the victim's `race, color, ethnicity, religion, or national origin.'" Id. at 1077. We also reject Groover's argument that reversal is required because section 775.085 is unconstitutional as applied....

...No facts regarding the offenses were placed on the record at the plea hearing. Groover's counsel, at the sentencing hearing on May 8, 1992, asked that the imposition of sentencing be delayed so that she could file a motion attacking the enhancement of the sentence under section 775.085....

...Stat.) or trespass (§§ 810.08, 810.09, Fla. Stat.); and the penalty might have been enhanced if the commission of the offense "evidence[d] prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, or national origin of the victim." § 775.085, Fla....

...(2010) (listing manslaughter, aggravated manslaughter of an elderly person or disabled adult, aggravated manslaughter of a child, and aggravated manslaughter of an officer, a firefighter, an emergency medical technician, or a paramedic as separate crimes), with § 775.085, Fla....

application of Florida’s “Hate Crime Statute,” section 775.085, Florida Statutes (1991). The words “hate crime”

PER CURIAM. We reverse and remand for further proceedings on the basis of State v. Stalder, 630 So.2d 1072 (Fla.1994) (section 775.085, Florida Statutes (1991), is constitutional)....

resen-tencing only to remove the enhancement under section 775.085, Florida Statutes (1995). See id. at 925. We

PER CURIAM. In this case, the trial court found that section 775.085, Florida Statutes (1991), Florida’s so-called Hate Crimes Statute, was an unconstitutional violation of appellees’ First Amendment rights and, on that basis, struck the resulting enhancement of appellees’ sentences. Since the Florida Supreme Court has recently, in State v. Stalder, 630 So.2d 1072 (Fla.1994), held contrary to that determination that section 775.085 does not unconstitutionally violate the First Amendment, we reverse....

(Fla. 3d DCA 1992) (holding unconstitutional section 775.085(1), Florida Statutes (1991), which enhanced

...statutes: section 784.07 reclassification of assault or battery to the next higher degree if the victim was a law enforcement officer; section 775.0845 reclassification of almost any offense to the next higher degree where the defendant wore a mask; section 775.085 reclassification of any crime to the next higher degree where the crime was based on prejudice against the victim for race, ethnicity, color, ancestry, national origin, religion, -5- statu...

...The record supports the conclusion that the victim was killed in the course of Appellant’s committing a hate crime. The details are more fully set forth in our opinion in the codefendant’s appeal, Wray v. State, 639 So.2d 621 (Fla. 4th DCA 1994). As indicated in Wray , since Appellant committed a life felony, section 775.085, Florida Statutes, is not applicable....

...s (§§ 810.08, 810.09, Fla. Stat.); and the penalty might have been enhanced if the commission of the offense “evidence[d] prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, or national origin of the victim.” § 775.085, Fla.Stat....

...t to section 775.087(1), Florida Statutes, which permits reclassification of crimes to a higher degree when they involve firearm use. Anderson, 988 So. 2d at 146. In Freudenberger, the offenses were reclassified to higher degree felonies pursuant to section 775.085(1), Florida Statutes, which permits reclassification of crimes to a higher degree when they involve evidence of prejudice based on race or other characteristics. Freudenberger, 940 So. 2d at 552. Sections 775.085(1) and 775.087(1) are obvious sentence enhancement provisions. They generally apply to any crime if a certain fact appears—in those cases use of a firearm or evidence of prejudice—and require the permitted sentence to be increased. As such, errors involving application of sections 775.085(1) or 775.087(1) can easily be characterized as “sentencing errors” that can be raised by 3.800(b) motion, as the courts in Anderson and Freudenberger stated. But unlike sections 775.085(1) or 775.087(1), which merely provide a method to reclassify the available penalty for any crime, section 810.02 describes and criminalizes a specific act, burglary. Like many crimes, the felony level of burglary depends on the existence of certain facts, as set forth in the statute....

...and any probative value was substantially outweighed by the risk of unfair prejudice. Appellant’s argument conveniently overlooks the fact that the State charged Appellant with aggravated battery of Elmer on the basis that this attack was racially motivated. See § 775.085(1)(a), Fla....

...e. Reeves appeals his conviction of violating section 790.19, Florida Statutes (1991), for wantonly or maliciously shooting a firearm into an occupied building on May 3, 1992, evidencing prejudice based on the sexual orientation of the victim. Under section 775.085, Florida Statutes (1991) commonly known as “Florida’s Hate Crimes Statute,” the penalty for violating section 790.19 was reclassified from a second degree felony to a first degree felony. Reeves moved to dismiss this count, arguing that section 775.085 violated the Free Speech and Due Process Clauses of both state and federal constitutions....

...The trial court withheld adjudication and placed Reeves on two years probation, with the additional condition that he spend thirty nights in county jail on each of the two counts, to be served concurrently. Reeves contends that the trial court erred in denying his motion to dismiss because section 775.085 is unconstitutionally vague for the reasons cited in Richards v. State, 608 So.2d 917 (Fla. 3d DCA 1992). The Florida Supreme Court recently issued its opinion in State v. Stalder, 630 So.2d 1072 (Fla.1994), expressly disapproving of Richards v. State and upholding the constitutionality of section 775.085 against challenges based on vagueness, overbreadth, and First Amendment grounds....

BY SELECTING A VICTIM BASED ON PREJUDICE § 775.085, Fla. Stat. and § 775.0863, Fla. Stat. If