Florida/Georgia Personal Injury & Workers Compensation

...Gibson, Public Defender, and Larry B. Henderson, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for appellee. PARIENTE, J. We have on appeal the Fifth District's decision in O.C. v. State, 722 So.2d 839 (Fla. 5th DCA 1998), declaring section 874.04, Florida Statutes (Supp.1996), unconstitutional....

...guilty of attempted aggravated battery and misdemeanor battery. O.C., 722 So.2d at 840-41 (alteration in original). Subsequent to the finding of guilt, the State moved to have O.C. declared a gang member for penalty enhancement purposes pursuant to section 874.04. O.C. opposed the State's motion, asserting that section 874.04 is unconstitutional "because it omits an intent requirement, violates free speech and freedom of association and imputes guilt by association." O.C., 722 So.2d at 840....

...ry, aggravated battery with a knife, possession of a short barrel shotgun and grand theft auto. At least three of the arrests had occurred within the past year. Id. at 841. After the hearing, the trial court denied O.C.'s constitutional challenge to section 874.04, found O.C. to be a criminal street gang member, and stated that O.C.'s third-degree felony and misdemeanor would be enhanced upward by one degree to second- and third-degree felonies pursuant to the provisions of section 874.04....

...We agree with the Fifth District's conclusion that the statute is unconstitutional as a violation of substantive due process. Chapter 874, the Criminal Street Gang Prevention Act of 1996, provides for enhancement of criminal penalties for a defendant who is a member of a "criminal street gang": 874.04 Criminal street gang activity; enhanced penalties.—Upon a finding by the court at sentencing that the defendant is a member of a criminal street gang, [1] the penalty for any felony or misdemeanor, or any delinquent act or violation of law wh...

...(2)(a) A felony of the third degree may be punished as if it were a felony of the second degree. (b) A felony of the second degree may be punished as if it were a felony of the first degree. (c) A felony of the first degree may be punished as if it were a life felony. § 874.04 (emphasis supplied)....

...individual rights and liberties'" by "punish[ing] entirely innocent activities" such as hailing a cab or signaling to a friend in an automobile. Id. at 237 (quoting Walker, 444 So.2d at 1138). Applying the reasoning of these cases, we conclude that section 874.04 violates a defendant's substantive due process rights because the statute subjects the defendant to conviction for a higher degree crime than originally charged, resulting in an increased penalty range, based only upon a defendant's "simple association" with others, who may or may not be criminals....

...that a felony of the third degree is punished as if it were a penalty of the second degree, a felony of the second degree punished as if it were a felony of the first degree, and a felony of the first degree punished as if it were a life felony. See § 874.04(2)(a)-(c)....

...[5] In this case, O.C. was sentenced based on a second-degree felony, although the crime with which she was originally charged, attempted aggravated *950 battery to cause great bodily harm, is a third-degree felony. [6] In reaching the conclusion that section 874.04 is unconstitutional, the Fifth District distinguished People v....

...e criminal penalties for "mere gang membership," but only when the criminal conduct at issue was committed for the gang's benefit and with the specific intent to assist in criminal conduct by gang members. Id. at 725. Unlike the statute in Gardeley, section 874.04 punishes mere association by providing for an enhancement of the degree of a crime based on membership in a criminal gang, even where the membership had no connection with the crime for which the defendant had been found guilty....

...ip, it lacks a rational relationship to the legislative goal of reducing gang violence or activity and thus fails to have a "reasonable and substantial relation" to a permissible legislative objective. Saiez, 489 So.2d at 1128. Because we agree that section 874.04 is unconstitutional as a violation of substantive due process, we find it unnecessary to reach O.C.'s challenge to the statute based on First Amendment grounds....

...unishable by a maximum term of imprisonment not to exceed five years. See § 775.082(3)(d). [5] Misdemeanors are also subject to enhancement by one degree so that a misdemeanor of the first degree may be punished as a felony of the third degree, see § 874.04(1)(b), thus raising additional concerns about the jurisdiction of the county and circuit courts in this circumstance....

...800.04(5)] The molestation ____ did ____ did not involve unclothed genitals or genital area. The molestation ____ did ____ did not involve the use of force or coercion. Other Provisions: Criminal Gang Activity ____ The felony conviction is for an offense that was found, pursuant to section 874.04, Florida Statutes, to have been committed for the purpose of benefiting, promoting, or furthering the interests of a criminal gang....

722 So.2d 839 (Fla. 5th DCA 1998), declaring section 874.04, Florida Statutes (Supp.1996), unconstitutional

...Taylor, Assistant Attorney General, Tampa, for Appellee. PARKER, Acting Chief Judge. The state charged S.P. with throwing a deadly missile at or into an occupied vehicle and battery and also filed a Motion to Declare the Child a Gang Member. S.P. filed a Motion to Determine F.S. 874.03 and 874.04 Unconstitutional....

...This act provides for enhanced penalties for crimes committed as part of a pattern of youth and street gang activity in an effort "to eradicate the terror" which gangs create. § 874.02(3), Fla. Stat. (1993). The first inquiry is whether S.P. comes within the purview of chapter 874, Florida Statutes (1993). Section 874.04, Florida Statutes (1993), enhances the penalty for any felony or violent misdemeanor if its commission is part of a pattern of youth and street gang activity....

...r a felony or violent misdemeanor. In 1994 the legislature amended section 874.03(3) to include "two or more delinquent acts or violations of law which would be felonies or violent misdemeanors if committed by an adult." The legislature also amended section 874.04 to provide for a penalty enhancement for "any delinquent act or violation of law which would be a felony or violent misdemeanor if committed by an adult." These changes, however, were not effective until October 1, 1994....

...le of Juvenile Procedure 8.165. See A.D. v. State, 740 So.2d 565 (Fla. 5th DCA 1999), and A.P. v. State, 740 So.2d 1241 (Fla. 5th DCA 1999). Counsel was eventually appointed for trial on the issue of whether S.S. was a street gang member pursuant to section 874.04, Florida Statutes (Supp.1996)....

...The State must also demonstrate a pattern of street gang activity. Since only gang membership was proven, the trial court erred in declaring S.L. a member of a criminal street gang. We therefore reverse the trial court's finding and remand for resentencing without enhancement under section 874.04, Florida Statutes (Supp.1994)....

...(21) If the primary offense is grand theft of the third degree of a motor vehicle and the offender’s prior record includes three or more grand thefts of the third degree of a motor vehicle, the subtotal sentence points are multiplied by 1.5. (22) If the offender is found to be a member of a criminal street gang pursuant to section 874.04, Florida Statutes, at the time of the commission of the primary offense, the subtotal sentence points are multiplied by 1.5....

...genitals or genital area. The molestation did did not involve the use of force or coercion. Other Provisions: Criminal Gang Activity The felony conviction is for an offense that was found, pursuant to section 874.04, Florida Statutes, to have been committed for the purpose of benefiting, promoting, or furthering the interests of a criminal gang. [Include all findings, sentencing enhancements, and mandatory minimum provision...

...was charged by amended delinquency petition with attempted aggravated battery to cause great bodily harm and misdemeanor battery occurring on January 29, 1997. On September 11, 1997, the state filed a motion to have O.C. declared a gang member for disposition enhancement purposes pursuant to section 874.04, Florida Statutes. O.C. moved to dismiss the enhancement request asserting that section 874.04 is unconstitutional because it omits an intent requirement, violates free speech and freedom of association and imputes guilt by association. Chapter 874, the Criminal Street Gang Prevention Act of 1996 provides for enhanced criminal penalties for a convicted defendant who is a member of a criminal street gang: 874.04 Criminal street gang activity; enhanced penalties.—Upon a finding by the court at sentencing that the defendant is a member of a criminal street gang, the penalty for any felony or misdemeanor, or any delinquent act or violation of law which...

...Each of the findings required as a basis for such sentence shall be found by a preponderance of the evidence. The enhancement will be as follows: * * * * * * (2)(a) A felony of the third degree may be punished as if it were a felony of the second degree. § 874.04, Fla....

...At least three of the arrests had occurred within the past year. The trial court denied O.C.'s constitutional challenge to the statute. The court found UMC to be a criminal street gang as that term is defined in section 874.03(1), that O.C. was a criminal street gang member and that under section 874.04 the two convictions would be enhanced upward one degree (to a second degree felony and third degree felony)....

...ee felony because there was only a single incident and victim and only one charge could be pursued. The court sentenced O.C. to a level 8 commitment. On appeal O.C. argues that the trial court erred (1) in finding the enhancement penalty provided in section 874.04, Florida Statutes, to be facially constitutional, and (2) in denying his motion for judgment of acquittal as to the charge of attempted aggravated battery....

...in the light most favorable to the state, supports a finding that great bodily harm was intended and attempted to be inflicted. See § 784.045(1)(a), Fla. Stat. (1997). The first issue raised on appeal is more troubling. The appellant contends that section 874.04 is facially unconstitutional in that it punishes lawful activity without requiring criminal intent, and it limits freedom of association....

...The California court noted that besides the vagueness problem the "New Jersey statute imposed criminal penalties for mere membership in a gang, condemning no act or omission" in contrast to California's enactment. 59 Cal.Rptr.2d at 368. Prior to the 1996 amendment to Florida's act, section 874.04 authorized enhancement where the defendant was a criminal street gang member and such gang met the criteria of a pattern of criminal street gang activity. See S.L. v. State, 708 So.2d 1006 (Fla. 2d DCA 1998). Florida's enactment now allows for enhancement merely "upon a finding by the court at sentencing that the defendant is a member of a criminal street gang." § 874.04, Fla. Stat. There is no requirement that the offense for which the defendant is being sentenced has any relationship whatsoever to the activities of the gang. Section 874.04 simply purports to enhance punishment based on gang membership even though that membership may be unrelated to the charged crime....

...This enhancement statute increases criminal penalties based on non-criminal acts. In effect, the increased punishment is based on association with other people, who may or may not have committed unrelated criminal acts. We agree with the appellant that the lower court erred in upholding the constitutionality of section 874.04, Florida Statutes (1996)....

...After considering the Committee's proposals and reviewing the relevant legislation, we *1129 amend the rules as proposed by the Committee. The amendment to rule 3.704(d)(22) changes the term "criminal street gang" to "criminal gang." The change is in response to chapter 2008-238, Laws of Florida, section 8 (amending section 874.04, Florida Statutes, to replace the term "criminal street gang activity" with "gang-related offenses," and to change the term "criminal street gang" to "criminal gang") and section 26 (amending section 921.0024(1)(a), Florida Statutes, to change the term "criminal street gang offense" to "criminal gang offense")....

...(Fla.2008). An editorial change to correct the spelling of the word "benefiting" also is made to the subdivision. The amendment to rule 3.986(d), Form for Sentencing, adds a provision for felony convictions for an offense that is found, pursuant to section 874.04, to have been committed for the purpose of benefiting, promoting, or furthering the interests of a criminal gang....

...THE CRIMINAL PUNISHMENT CODE (a)-(c) (No Change) (d) General Rules and Definitions. (1)-(21) (No Change) (22) If the offender is found to have committed the offense for the purpose of *1130 benefitting, promoting, or furthering the interests of a criminal street gang under section 874.04, Florida Statutes, at the time of the commission of the primary offense, the subtotal sentence points are multiplied by 1.5....

...ry minimum imprisonment provision of section 775.0875(1), Florida Statutes, is hereby imposed for the sentence specified in this count. Other Provisions: Criminal Gang Activity ____ The felony conviction is for an offense that was found, pursuant to section 874.04, Florida Statutes, to have been committed for the purpose of *1132 benefiting, promoting, or furthering the interests of a criminal gang....

...The change to rule 3.704(d)(22), concerning criminal street gangs, is intended to enhance an offense committed “for the purpose of benefitting, promoting, or furthering the interests of a criminal street gang.” The change is based on chapter 2001-126, section 2, Laws of Florida, which amends section 874.04 and section 921.0024(l)(b), Florida Statutes (2000), to bring the statutes into conformity with this Court’s decision in State v....

..., the subtotal sentence points are multiplied by 1.5. (22) If the offender is found to -be-a member ofto have committed the offense for the purpose of benefitting, promoting, or furthering the interests of a criminal street gang pursuant — founder section 874.04, Florida Statutes, at the time of the commission of the primary offense, the subtotal sentence points are multiplied by 1.5....

...Committee Note The terms must and shall, as used in this rule, are mandatory and not permissive. *833 [[Image here]] *834 [[Image here]] *835 [[Image here]] *836 [[Image here]] . In O.C., we affirmed the decision of the District Court of Appeal, Fifth District, and held that section 874.04, Florida Statutes (Supp.1996), which provided enhanced penalties for criminal street gang activity, was unconstitutional....

...The molestation did did not involve the use of force or coercion. - 31 - Other Provisions: Criminal Gang Activity The felony conviction is for an offense that was found, pursuant to section 874.04, Florida Statutes, to have been committed for the purpose of benefiting, promoting, or furthering the interests of a criminal gang. Retention of Jurisdiction The court retains jurisdiction ov...

...The defendant appeals his guilty pleas and sentences for burglary and possession of burglary tools. We affirm in all respects, except we reverse the defendant’s sentences and remand for re-sentencing. The defendant asserts the trial court improperly enhanced his sentences under the Criminal Street Gang Prevention Act, section 874.04, Florida Statutes (1997). The Florida Supreme Court has recently declared section 874.04 violates substantive due process, thereby rendering it unconstitutional. See State v. O.C., Case No. 94,-513, — So.2d -, 1999 WL 731661 (Fla. Sept. 16, 1999). Because the trial court enhanced the defendant’s sentences pursuant to section 874.04, we reverse and remand for re-sentencing....

...Several days later, the state filed a superseding indictment, again alleging two counts of first-degree murder with a firearm and adding a sentencing enhancer that the defendant had committed the offenses “for the purpose of benefiting, promoting, or furthering the interests of a criminal gang.” § 874.04, Fla....

...was charged by amended delinquency petition with attempted aggravated battery to cause great bodily harm and misdemeanor battery occurring on January 29, 1997. On September 11, 1997, the state filed a motion to have O.C. declared a gang member for disposition enhancement purposes pursuant to section 874.04, Florida Statutes. O.C. moved to dismiss the enhancement request asserting that section 874.04 is unconstitutional because it omits an intent requirement, violates free speech and freedom of association and imputes guilt by association. Chapter 874, the Criminal Street Gang Prevention Act of 1996 provides for enhanced criminal penalties for a convicted defendant who is a member of a criminal street gang: 874.04 Criminal street gang activity; enhanced penalties....

...Each of the findings required as a basis for such sentence shall be found by a preponderance of the evidence. The enhancement will be as follows: * * Hi * Hi * (2)(a) A felony of the third degree may be punished as if it were a felony of the second degree. § 874.04, Fla....

...At least three of the arrests had occurred within the past year. The trial court denied O.C.’s constitutional challenge to the statute. The court found UMC to be a criminal street gang as that term is defined in section 874.03(1), that O.C. was a criminal street gang member and that under section 874.04 the two convictions would be enhanced upward one degree (to a second degree felony and third degree felony)....

...ee felony because there was only a single incident and victim and only one charge could be pursued. The court sentenced O.C. to a level 8 commitment. On appeal O.C. argues that the trial court erred (1) in finding the enhancement penalty provided in section 874.04, Florida Statutes, to be facially constitutional, and (2) in denying his motion for judgment of acquittal as to the charge of attempted aggravated battery....

...in the light most favorable to the state, supports a finding that great bodily harm was intended and attempted to be inflicted. See § 784.045(l)(a), Fla. Stat. (1997). The first issue raised on appeal is more troubling. The appellant contends that section 874.04 is facially unconstitutional in that it punishes lawful activity without requiring criminal intent, and it limits freedom of association....

...The California court noted that besides the vagueness problem the “New Jersey statute imposed criminal penalties for mere membership in a gang, condemning no act or omission” in contrast to California’s enactment. 59 Cal.Rptr.2d at 368 . Prior to the 1996 amendment to Florida’s act, section 874.04 authorized enhancement where the defendant was a criminal street gang member and such gang met the criteria of a pattern of criminal street gang activity. See S.L. v. State, 708 So.2d 1006 (Fla. 2d DCA 1998). Florida’s enactment now allows for enhancement merely “upon a finding by the court at sentencing that the defendant is a member of a criminal street gang.” § 874.04, Fla. Stat. There is no requirement that the offense for which the defendant is being sentenced has any relationship whatsoever to the activities of the gang. Section 874.04 simply purports to enhance punishment based on gang membership even though that membership may be unrelated to the charged crime....

...This enhancement statute increases criminal penalties based on non-criminal acts. In effect, the increased punishment is based on association with other people, who may or may not have committed unrelated criminal acts. We agree with the appellant that the lower court erred in upholding the constitutionality of section 874.04, Florida Statutes (1996)....

...Rolon’s motion for a new trial. See id. Mr. Rolon also argues that the trial court erred in determining that the state presented sufficient evidence to prove that he qualified for enhanced sentencing pursuant to the Criminal Street Gang Prevention Act of 1996 (the Act). See § 874.04, Fla....

...Based on O.C., we reverse the sentence imposed under Chapter 874, Florida Statutes (1997), and remand for resentencing. Judgment AFFIRMED; sentence REVERSED; and cause REMANDED. DAUKSCH and GOSHORN, JJ., concur. . §§ 777.04, 782.04(2), Fla. Stat. (1997). . § 874.04, Fla....

PARKER, Acting Chief Judge. The state charged S.P. with throwing a deadly missile at or into an occupied vehicle and battery and also filed a Motion to Declare the Child a Gang Member. S.P. filed a Motion to Determine F.S. 874.03 and 874.04 Unconstitutional....

...This act provides for enhanced penalties for crimes committed as part of a pattern of youth and street gang activity in an effort “to eradicate the terror” which gangs create. § 874.02(3), Fla.Stat. (1993). The first inquiry is whether S.P. comes within the purview of chapter 874, Florida Statutes (1993). Section 874.04, Florida Statutes (1993), enhances the penalty for any felony or violent misdemeanor if its commission is part of a pattern of youth and street gang activity....

...felony or violent misdemeanor. In 1994 the legislature amended section 874.03(3) to include “two or more delinquent acts or violations of law which would be felonies or violent misdemeanors if committed by an adult.” The legislature also amended section 874.04 to provide for a penalty enhancement for “any delinquent act or violation of law which would be a felony or violent misdemeanor if committed by an adult.” These changes, however, were not effective until October 1, 1994....

...le of Juvenile Procedure 8.165. See A.D. v. State, 740 So.2d 565 (Fla. 5th DGA 1999), and A.P. v. State, 740 So.2d 1241 (Fla. 5th DCA 1999). Counsel was eventually appointed for trial on the issue of whether S.S. was a street gang member pursuant to section 874.04, Florida Statutes (Supp.1996)....

...The statute did not, in any of its iterations, expressly or implicitly reclassify an attempted second-degree murder in this fashion. The Legislature certainly knows what language to use in reclassifying an offense to a higher degree. See, e.g., § 874.04, Fla....

...Out of state convictions wherein the analogous or parallel Florida offenses are located in offense severity level 8, 9, or 10 are to be considered prior serious felonies. [No changes to subdivisions (13) through (23).] (24) If the offender is found to be a member of a criminal street gang pursuant to section 874.04, at the time of the commission of the primary offense, the subtotal sentence points are multiplied by 1.5....

WHATLEY, Judge. R.D.P. appeals his sentences for petit theft and criminal mischief. He contends that his sentences were improperly enhanced pursuant to section 874.04, Florida Statutes (Supp.1996), on the ground that he is a member of a gang....

...He argues that the trial court improperly took judicial notice that the gang of which he was allegedly a member was in fact a gang and that the statute allowing for the enhancement is unconstitutional. We need not reach the issue regarding the taking of judicial notice because we agree with the Fifth District that section 874.04 is unconstitutional. See O.C. v. State, 722 So.2d 839 (Fla. 5th DCA 1998). Accordingly, we affirm R.D.P.’s adjudications but reverse R.D.P.’s sentences and remand for resentencing without the enhancement provided for in section 874.04....

...ang and remand for resentencing. After adjudicating Ariano guilty of the charged crime of burglary of a dwelling with a battery, the trial court applied the criminal street gang enhancer and multiplied Ariano’s sentence by 1.5 pursuant to sections 874.04 and 921.0024(l)(b)2.b, Florida Statutes (2004)....

...Since only gang membership was proven, the trial court erred in declaring Ariano a member of a criminal street gang for purposes of the sentence enhancement. We therefore reverse the trial court’s finding and remand for resentencing without enhancement under section 874.04, Florida Statutes (2004). Reversed and Remanded with Instructions. STEVENSON and TAYLOR, JJ„ concur. . § 874.04, Fla....

...§ 921,0024(l)(b)2.b, Fla. Stat. (2004), states that, "If the offender is convicted of the primary offense and committed that offense for the purpose of benefiting, promoting, or furthering the interests of a criminal street gang as prohibited under s. 874.04, the subtotal sentence points are multiplied by 1.5.”

...genitals or genital area. The molestation did did not involve the use of force or coercion. Other Provisions: Criminal Gang Activity The felony conviction is for an offense that was found, pursuant to section 874.04, Florida Statutes, to have been committed for the purpose of benefiting, promoting, or furthering the interests of a criminal gang. [Include all findings, sentencing enhancements, and mandatory minimum provision...

PARIENTE, J. We have on appeal R.D.P. v. State, 735 So.2d 551 (Fla. 2d DCA 1999), a decision of the district court declaring invalid section 874.074, Florida Statutes (Supp.1996). We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Section 874.04 allows trial courts to enhance the degree of crime under which the defendant is charged on the basis of the defendant’s membership in a criminal street gang....

...- 31 -  The molestation did did not involve the use of force or coercion. Other Provisions: Criminal Gang Activity . The felony conviction is for an offense that was found, pursuant to section 874.04, Florida Statutes, to have been committed for the purpose of benefiting, promoting, or furthering the interests of a criminal gang. Retention of Jurisdiction ....

based on his membership in a street gang. See § 874.04, Fla. Stat. (Supp.1996). We hold that the State

...- 31 -  The molestation did did not involve the use of force or coercion. Other Provisions: Criminal Gang Activity . The felony conviction is for an offense that was found, pursuant to section 874.04, Florida Statutes, to have been committed for the purpose of benefiting, promoting, or furthering the interests of a criminal gang. Retention of Jurisdiction ....

member of a criminal street gang pursuant to section 874.04, Florida Statutes, at the time of the commission

...*919 after the fact to felony murder and accessory after the fact to armed robbery. He raises six issues on appeal, all of which we find to be without merit except one. The State concedes error as to the enhancement of Kanjanabout’s sentence under section 874.04, Florida Statutes (1997), known as the Criminal Street Gang Prevention Act. The Florida Supreme Court has declared this statute unconstitutional. See State v. O.C., 748 So.2d 945 (Fla.1999). Therefore, we affirm Kanjanabout’s convictions but remand for resentencing without the enhancement under section 874.04....

for resentencing without enhancement under section 874.04, Florida Statutes (Supp.1994). DANAHY, A.C