How Gang-Related Offenses Lead to Penalty Enhancements Under Florida Law

April 11, 2022 Don Pumphrey, Jr. Criminal Defense Social Share

Gangs in the United States began during the Industrial Revolution when people abandoned their homes in rural areas and moved to cities. They were met with inadequate housing and a job shortage, leaving many people to turn to crime to survive. Finding safety in numbers, people banded together in what are now considered to be modern-day gangs. According to the National Youth Gang Survey Analysis, from 1996 to 2012, annual estimates of the number of gangs have averaged around 27,000 nationally. Annual estimates of the number of gang members have averaged around 770,000, with larger cities and suburban counties being the primary locations where gang members reside. But how does Florida law define a criminal gang, and what happens if you commit a gang-related offense? This blog will dive into those questions and more!

Florida Law

Under Section 874.03 of the Florida Statutes, “criminal gang” is defined as:

A formal or informal ongoing organization, association, or group that has as one of its primary activities the commission of criminal or delinquent acts, and that consists of three or more persons who have a common name or common identifying signs, colors, or symbols, including, but not limited to, terrorist organizations and hate groups.

In order to be deemed as a “criminal gang member,” the person must meet two or more of the following criteria:

(a) Admits to criminal gang membership.

(b) Is identified as a criminal gang member by a parent or guardian.

(c) Is identified as a criminal gang member by a documented reliable informant.

(d) Adopts the style of dress of a criminal gang.

(e) Adopts the use of a hand sign identified as used by a criminal gang.

(f) Has a tattoo identified as used by a criminal gang.

(g) Associates with one or more known criminal gang members.

(h) Is identified as a criminal gang member by an informant of previously untested reliability and such identification is corroborated by independent information.

(i) Is identified as a criminal gang member by physical evidence.

(j) Has been observed in the company of one or more known criminal gang members four or more times. Observation in a custodial setting requires a willful association. It is the intent of the Legislature to allow this criterion to be used to identify gang members who recruit and organize in jails, prisons, and other detention settings.

(k) Has authored any communication indicating responsibility for the commission of any crime by the criminal gang.

Enhanced Penalties for Gang Members

Under Section 874.04 of the Florida Statutes, if a defendant committed the charged offense for the purpose of benefiting, promoting, or furthering the interests of a criminal gang, the penalty they are facing is enhanced, affecting only the applicable statutory maximum.  The enhancements include:

• A second-degree misdemeanor may be enhanced to a first-degree misdemeanor;
• A first-degree misdemeanor may be enhanced to a third-degree felony;
• A third-degree felony may be enhanced to a second-degree felony;
• A second-degree felony may be enhanced to a first-degree felony; and
• A first-degree felony may be enhanced to a life felony

Soliciting Others to Join a Gang

Florida law does not take the act of soliciting another person to be a criminal gang member lightly. Specifically, under Section 874.05 of the Florida Statutes, a person who intentionally causes, encourages, solicits, or recruits another person to become a criminal gang member where a condition of membership or continued membership is the commission of a crime commits a third-degree felony, punishable by up to five years in prison, a $5,000 fine, and five years’ probation. If such a violation happens a second or subsequent time after conviction, it will be deemed a second-degree felony, punishable by up to 15 years in prison, 15 years’ probation, and a $10,000 fine.

The statute also recognizes the danger posed by the recruitment of juvenile individuals into gangs. Specifically, it imposes a second-degree felony charge upon anyone who intentionally causes, encourages, solicits, or recruits another person under 13 to become a criminal gang member where a condition of membership or continued membership is the commission of any crime. If such a violation happens a second or subsequent time after conviction, it will be deemed a first-degree felony, punishable by up to 30 years in prison, 30 years’ probation, and a $10,000 fine.

Combating Gang Violence in Leon County

In early March 2022, the Leon County Commission unanimously voted to accept the Florida Department of Law Enforcement Project Safe Grant award of $121,510. The grant will be used to support additional training for 20 law enforcement officers that will “facilitate a comprehensive approach to gang investigations that enhances the prosecution of gang related offenses.” Importantly, the money will also be used to create a Gang Task Force, comprised of members of the Tallahassee Police Department and Leon County Sheriff’s Office that will allow officers to train on how to identify gang members, gang signs, and other factors related to gang activity. A program will also be initiated with the goal of keeping middle and high school students away from gangs.

Tallahassee Criminal Defense Attorney

If you are facing a charge that has been enhanced due to it being gang-related, ensure you are fully informed of your rights and zealously advocated for by a knowledgeable Tallahassee criminal defense attorney. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have years of experience defending Floridians against a wide array of criminal charges and will explore all applicable defenses to the charge or charges at issue. Call us today at (850) 681 – 7777 or send an online message today to discuss your legal matter during an open and free consultation with an attorney in our team.

Written by Sarah Kamide

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