Florida’s Hate Crimes Statute
Florida’s hate crime statute, Section 775.085, reclassifies the felony or misdemeanor degree of an offense if the commission of the offense evidences prejudice. Reclassification of the degree of an offense increases the minimum and maximum penalties that a judge may impose for an offense.
Florida law defines a "hate crime" is an act committed by one person or group against another in any way constitutes an expression of hatred toward the victim based on his or her personal characteristics. Hate crimes can also involve crimes against another person's property.
The Florida Attorney General’s Office of Civil Rights has developed a hate crimes training program specifically designed to train law enforcement officers, detectives, and investigators. You also need a criminal defense attorney experienced in fighting these types of accusations.
Attorney for Hate Crimes in Palm Beach County, FL
If you were charged with a hate crime under Florida Statute Section 775.085, then you should contact an experienced criminal defense attorney at Meltzer & Bell, P.A.. We represent clients charged with a variety of violent crimes and property crimes. With offices in West Palm Beach in Palm Beach County and Fort Lauderdale in Broward County, FL, we represent clients throughout all of South Florida.
The mention of a prejudiced remark does not necessarily make a criminal incident hate-motivated any more than the absence of such a remark makes the criminal incident a non-hate one. Your criminal defense attorney will fight any accusation that a specific incident constitutes a hate-motivated crime. We review statements of the alleged victim and witnesses, as well as physical evidence, may be used to make this determination.
Florida law provides for harsher penalties if a hate crime is alleged. Find out how our attorneys fight these cases during every stage from the initial investigation through trial. Call us a (561) 283-3259 to discuss your case today.
Essential Elements of Florida's Hate Crime Statute
Under Section 775.08(1), it is an essential element of this section that the record reflects that the defendant perceived, knew, or had reasonable grounds to know or perceive that the victim was within the class delineated in s. 775.085, F.S. For purposes of the hate crime statute, the prejudice, must be based on one of the following:
- sexual orientation;
- national origin;
- homeless status;
- mental or physical disability, or
- the advanced age of the victim.
The term “mental or physical disability,” as defined in Section 775.085(1)(b)1., means that the victim suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, and has one or more physical or mental limitations that restrict the victim’s ability to perform the normal activities of daily living.
Penalties for Hate Crimes in Florida
Under Florida’s “hate crime” statute, offenses are reclassified as follows:
- A second degree misdemeanor is reclassified to a first degree misdemeanor;
- A first degree misdemeanor is reclassified to a third degree felony;
- A third degree felony is reclassified to a second degree felony;
- A second degree felony is reclassified to a first degree felony; and
- A first degree felony is reclassified to a life felony.
Recent Statistics on Hate Crimes in Florida
According to the Florida Attorney General’s Office, in 2014, 73 hate crimes were reported statewide from January 1, 2014, through Dec. 31, 2014. According to the Florida Department of Law Enforcement’s Hate Crime Training Manual, that the motivation behind the act is the key element in determining whether an incident is hate-related. Ultimately, it is up to the judgment of individual law enforcement officer.
Law enforcement agencies in Palm Beach County investigated seven hate crimes in 2014 for assault, aggravated assault, robbery, murder, non-negligent manslaughter, intimidation destruction / damage / vandalism of property including:
- West Palm Beach Police Department - 5 incidents
- Delray Beach Police Department - 1 incident
- Jupiter Police Department - 1 incident
Law enforcement agencies in Broward County investigated four hate crimes in 2014 for Intimidation, Aggravated Assault, and Simple Assault including:
- Margate Police Department - 1 incident
- Miramar Police Department - 2 incidents
- Weston Police Department - 1 incident
The motivation for the hate crimes as a percentage of all reported hate crimes were classified as follows:
- race or color at 49.3 percent;
- sexual orientation at 20.6 percent;
- religion at 17.8 percent;
- ethnicity/national origin at 9.6 percent;
- mental disability at 2.7%.
- physical disability at 0%;
- advanced age at 0%.
Categories for the classification of hate crimes included crimes against persons and crimes against property.
Crimes against persons accounted for 65.8 percent of all incidents reported in 2014 while crimes against property accounted for the remaining 34.2 percent.
According to the Florida Department of Law Enforcement’s Hate Crime Training Manual, that the motivation behind the act is the key element in determining whether an incident is hate-related. Criminal charges for hate crimes are ultimately left up to the judgment of individual law enforcement officers and their agencies to determine whether a particular incident constitutes a hate crime and is reported as such to the State of Florida.
Types of Hate Crimes in Florida
Florida's Hate Crime Report Manual explains the types of criminal accusations most frequently associated with hate crime incidents including:
- The definition of “trespassing” is to enter unlawfully upon the real property of another person. To enter or remain in any property, structure, or conveyance without being authorized, licensed, or invited.
- Weapons Violations
- The definition of “Weapons Violations” is the violation of laws or ordinances prohibiting the manufacture, sale, purchase, transportation, possession, or use of firearms, cutting instruments, explosives, incendiary devices, or other deadly weapons.
- Destruction / Damage / Vandalism of Property
- The definition of “Destruction / Damage / Vandalism of Property” is the willful and malicious destruction, damage, or defacement of public or private property, real or personal, without the consent of the owner or the person having care, custody or control of the property.
- Sex Offenses, Non-Forcible (Except Prostitution / Commercialized Sex)
- The definition of non-forcible sex offenses includes unlawful sexual intercourse, sexual contact, or other unlawful behavior or conduct intended to result in sexual gratification without force or threat of force and where the victim is capable of giving consent.
- The persons willfully participating in these activities will be considered the offenders in these incidents.
- The victim will be the individual or business suffering the greatest embarrassment, harassment, or financial loss due to the offense.
- This category may conclude obscenity offenses and offense classified as non-forcible sex offenses include:
- Sex Offenses such as Indecent Exposure which is defined as exposure by the offender of his/her private body parts to the sight of another person in a lewd or indecent manner in a public place;
- Obscenity Offenses which are defined as conduct which, by community standards, is deemed to corrupt public morals by its indecency and lewdness. This may include:
- Obscene Communication/Telephone Call which is defined as making or transmitting a lewd, indecent, or lascivious telephone call or other communication;
- Obscene Material / Pornography which is defined as the unlawful manufacture, publish, sell, buy, or possess material (e.g., literature, photographs, statuettes, etc.) which, by community standards, is deemed capable of corrupting public morals.
- Forcible Sex Offenses
- The definition of a forcible sex offense is a sexual act directed against another person, forcibly and against that person’s will, or not forcibly or against the person’s will, where the victim is incapable of giving consent.
- Examples of forcible sex offenses include the following:
- forcible rape;
- forcible sodomy; and
- forcible fondling / indecent liberties / child molesting.
- As a general rule, the element of force or threat of force is necessary before a sexual offense is reported in this category. Any sexual act or attempt accomplished by force is classified as a forcible sex offense regardless of the age of the victim or the relationship of the victim to the offender.
- Statutory rape is not counted in the forcible sex offense category as no force is used.
- The definition of Forcible Rape is the carnal knowledge of a female by a male, forcibly and against her will or where the victim is incapable of giving consent because of her youth or because of her temporary or permanent mental incapacity.
- The definition of Forcible Sodomy is oral or any sexual intercourse with another person, forcibly and against the person’s will, or where the victim is incapable of giving consent because of his /her youth or because of his/her temporary or permanent mental incapacity.
- The definition of Forcible Fondling / Indecent Liberties / Child Molesting is the touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against that person’s will; or not forcibly or against the person’s will where the victim is incapable of giving consent because of his/her temporary or permanent mental incapacity.
- The definition of Robbery is the taking or attempting to take, anything of value under confrontational circumstances from the control, custody, or care of another person by force or threat of force or violence, and putting the property custodian in fear.
- As a general rule, robbery differs from larceny in that it is aggravated by the element of force or threat of force to the custodian of the property.
- The custodian, who may be the owner or person having custody of the property, is directly confronted by the perpetrator and is threatened with force or fears that force will be used.
- Fraud Offenses
- The definition of a “fraud offense” is the intentional perversion of the truth for the purpose of inducing another person or entity, in reliance upon it, to part with something of value or to surrender a legal right.
- Fraud offenses include false pretenses/swindle, impersonation, wire fraud, theft of rental cars (i.e., not returned or obtained by fraud), and other types of fraud.
- As a general rule, the offenses reported in this category include:
- fraudulent conversion of entrusted property;
- conversion of goods lawfully possessed by bailees, lodgers, or finders of lost property;
- obtaining money or property by false pretenses;
- larceny after trust; and larceny by bailee.
- When a fraud is committed in which a counterfeit item is used or a forgery is committed in carrying out the fraud, the counterfeit or forgery is considered an integral part of fraud.
- Counterfeiting / Forgery
- The definition of “Counterfeiting / Forgery” is the altering, copying, or imitation of something without authority or right, with the intent to deceive or defraud by passing the copy or thing altered or imitated as that which is original or genuine; or the selling, buying, or possession of an altered, copied or imitated thing with the intent to deceive or defraud.
- Extortion / Blackmail
- The definition of “Extortion / Blackmail” is obtaining money, property, or any other thing of value, either tangible or intangible, from another person through the use or threat of force, misuse of authority, threat of criminal prosecution, or the destruction of the victim’s reputation or social standing, or through other coercive measures.
- The definition of intimidation is to unlawfully place another person in fear of bodily harm through verbal threats without displaying a weapon or subjecting the victim to actual physical attack. Intimidation includes, but is not limited to, the following offenses:
- Breach of peace/disorderly conduct;
- Applying unlawful standards, procedures, or intimidating a qualified voter; or
- Corruptly influencing voting by bribery, menace, threat, or corruption.
- The definition of “embezzlement” is the unlawful misappropriation by an o ender for his/her own or purpose, money, property, or some other thing of value entrusted to his/her care, custody, or control.
- As a general rule, any time a person entrusted with anything of value during the normal course of operations and the function assigned, misappropriates such item, it is classified in this category.
- The definition of “arson” is to unlawfully and intentionally damage, or attempt to damage, any real or personal property by fire or incendiary device. Suspicious fires associated with hate-motivated incidents should be classified as arson. If the investigation later proves that arson has not occurred, the Offense Code can be modified.
- Simple Assault
- The definition of “Simple Assault” is an unlawful physical attack by one person upon another where neither the offender displays a weapon, nor the victim suffers obvious severe or aggravated bodily injury.
- As a general rule, all physical assaults not classified in the aggravated assault category are reported as simple assault. This would include those assaults where no weapons, other than personal, were used and which resulted in only minor injuries.
- Aggravated Assault
- The definition of “Aggravated Assault” is an unlawful attack by one person upon another where either the offender displays a weapon or the victim suffers obvious severe or aggravated bodily injury involving apparent broken bones, loss of teeth, possible internal injury, severe laceration, or loss of consciousness.
- As a general rule, all felonies and aggravated assaults are classified in this category. Not included are assaults with intent to rob or rape.
- Attempts to commit these crimes are reported in the categories of robbery or rape. Assault, or threat of assault, with any weapon or item used as a weapon other than hands, fists, and feet, is classified as an aggravated assault. It is not necessary that injury is inflicted.
- When personal weapons (hands, fists, feet, etc.) are used, the victim must be seriously injured by these personal weapons.
- Usually, serious injuries involve a broken bone or injury so severe that the victim should be admitted to a hospital beyond mere emergency room treatment.
- The definition of “bribery” is the offering, giving, receiving, or soliciting of anything of value (i.e., a bribe, gratuity, or kickback) to sway the judgment or action of a person in a position of trust and influence.
- The person offering or receiving a bribe will be considered the offender in these incidents. The victim will be the individual or business most affected by the bribe, or if the entity cannot be defined, the crime will be classified as a crime against society.
- For example, a bank official is bribed not to qualify a Hispanic family for a home loan for a particular neighborhood.
- Kidnapping / Abduction
- The definition of “Kidnapping / Abduction" is the unlawful seizure, transportation, and detention of a person against his/her will, or of a minor without the consent of his/her custodial parent(s) or legal guardian.
- As a general rule, the kidnapping offense should be recorded regardless of the length of time the victim was detained/held.
- Kidnapping or false imprisonment is a by-product of many crimes, such as rape or robbery, and as such would not normally be counted as a separate offense.
- Larceny / Theft Offenses
- The definition of “Larceny / Theft Offenses” is the unlawful taking, carrying, leading, or riding away of property from the possession, or constructive possession, of another person.
- Larceny / theft offenses include pocket picking, purse-snatching, shoplifting / retail theft, theft from a building, theft from a motor vehicle (including motor vehicle parts/ accessories), theft of bicycles, and all other types of larcenies.
- As a general rule, the following offenses are all classified as either fraud or embezzlement:
- fraudulent conversion of entrusted property;
- conversion of goods lawfully possessed by bailees, lodgers, or finders of lost property;
- obtaining money or property by false pretenses;
- larceny by check;
- larceny after trust; and
- larceny by bailee.
- Thefts from rented property or from property that has been rented are not generally classified as larceny. Instead, this type of incident is considered a fraud, i.e., defrauding an innkeeper, failure to return rented property, etc.
- Motor Vehicle Theft
- The definition of “Motor Vehicle Theft” is the theft of a motor vehicle. As a general rule, any theft of a motor vehicle is reported in this category. Joy riding should be classified as a motor vehicle theft with the vehicle being shown as stolen and recovered.
- Burglary / Breaking and Entering
- The definition of “Burglary / Breaking and Entering” is the unlawful entry into a building or other structure with the intent to commit a felony or theft.
- As a general rule, law enforcement will report as one offense any unlawful entry or attempted forcible entry of any dwelling, house, attached structure, public building, shop, office, factory, storehouse, apartment, house trailer, warehouse, mill, barn, other building, ship, or railroad car.
- If there is apparent unlawful entry and the offender has not completed an act or the actions or intent of the offender are unknown, it is reported as a burglary.
- Any time force of a physical nature has been used to gain entrance to some premises; the attempted burglary is reported.
- Any time there is uncertainty as to why the entry was made to a structure, it is reported as a burglary. Any time force of a physical nature has been used to gain entrance to some premises; the attempted burglary is reported.
- Breaking into a vehicle is not reported as the burglary but as a larceny.
- Homicide Offenses
- Homicide offenses include murder, non-negligent manslaughter, and negligent manslaughter.
- The definition of Murder and Non-Negligent Manslaughter is the “killing of one human being by another.
- As a general rule, these incidents involve any death due to a fight, argument, quarrel, assault, the commission of a crime, or by premeditated design.
- The definition of "Negligent Manslaughter" is the killing of another person through negligence. As a general rule, any death of an individual resulting from a negligent act of another individual.
Civil Action for the Commission of a Hate Crime in Florida
Section 775.085, F.S., also provides that a person or organization that establishes by clear and convincing evidence that it has been coerced, intimidated, or threatened in violation of this section has a civil cause of action for treble damages, an injunction, or any other appropriate relief in law or equity.
Under Florida Statute Section 775.085(2), upon prevailing in such civil action, the plaintiff may recover reasonable attorney’s fees and costs.
Hate Crimes in Florida for 2014 - Visit the website of the Florida Attorney General’s Office to find an annual summary of data collected by FDLE through its Hate Crime Program from January 1, 2014 – December 31, 2014. The program collects data on hate-related offenses for each incident reported. The Hate Crimes Reporting Act, Section 877.19, Florida Statutes, was passed to require law enforcement agencies to report hate crimes to the Florida Department of Law Enforcement (FDLE). Through its Hate Crime Program, Florida collects data on hate-related offenses for each incident reported. The Florida Attorney General's Office to publish an annual summary of data collected by FDLE.
This article was last updated on Friday, November 10, 2016.