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Hate Crimes in Florida

hate-crime_180x120Several Florida news outlets have reported that an 18 year old man from Okeechobee, Florida was arrested for beating up a 16 year old autistic boy at a house party. In a video posted to Facebook, the 18 year man stands over the cowering 16 year old boy, punching him in the head and cursing at him, as several others stand by, laughing and taunting the victim. The 16 year old victim also told police that the man held a knife to his throat and choked him. The 16 year old boy suffers from autism and has reported that this was the reason that led to the beating. Okeechobee County Assistant State Attorney, Ashley Albright, has indicated that he was looking into possible hate crime sanctions against the 18 year old man for the alleged beating because the boy suffers from autism. Does Florida law allow such a conviction?

Florida law does not expressly label or term any statute with the language of “Anti-Hate Crime Legislation” or “Anti-Ethnic Legislation.” What Florida law does do is enhance all criminal penalties under Section 775.085 that have facts evidencing prejudice while committing criminal offenses. Florida law increases the level of offense up one level under Florida’s version of “Hate Crime” legislation. So, a second degree misdemeanor becomes a first degree misdemeanor, a first degree misdemeanor becomes a third degree felony, a third degree felony becomes a second degree felony, a second degree felony becomes a first degree felony and a first degree felony becomes a life felony for purposes of sentencing if a defendant is convicted with a special jury instruction of a “hate crime” provision.

The Appellate Courts have said, Florida law does not create a new category of crimes under hate crime legislation it indeed allows for existing offenses to be elevated in degree, when the element of motivation based on bias is present. See Woolfork v. State, 632 So. 2d 823 (Fla. 2nd DCA 1993); quoting Section 775.085. Moreover, the jury must show their intentions with their decision on a proper verdict form that would enhance the sentence because of factors shown by a preponderance of the evidence that the defendant acted because of biases as enumerated in the statute.  Section 775.085 lays out the following factors:  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, sexual orientation, national origin, homeless status, mental or physical disability, or advanced age of the victim is shown as and the defendant perceived, knew, or had reasonable grounds to know or perceive that the victim was within the class delineated in this section.

As to the alleged crime in Okeechobee, Florida where supposedly the 18 year defendant beat up the 16 year boy because he had autism would fit squarely into the enhanced criminal penalties under Florida Section 775.085 if the defendant knew the boy had autism and battered or assaulted the child because of this factor. Because under Section 775.085 the legislatures have define mental disability to mean “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.”

The defendant would argue that even if the 16 year old suffers from autism, he does have limitations that restrict him from performing normal daily activities as evidenced by the fact that he attends school, plays sports, goes to house parties where he consumed alcohol underage and in fact is not different than any other 16 year old boy. The issue of whether or not the 16 year victim suffers from a disease that is ripe for enhancement under Section 775.085 is always a question of fact. However, the issue must be properly presented to a jury with the issue accurately and clearly reflected on the jury form.  Freudenberger v. State, 940 So. 2d 551 (2nd DCA 2006).

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