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Am I a “First Time Offender” in Florida if I Have a Criminal Record in Another State?

Being a first-time offender in a Florida criminal case can have a number of benefits with respect to a greater likelihood of more favorable outcomes in terms of lower bail, prosecutorial leniency, pre-trial interventions, penalties, and expungement/sealing.

But what exactly is a “prior offense” for purposes of sentencing in criminal cases? Do out-of-state crimes count as prior offenses?

As longtime Fort Lauderdale criminal defense lawyers can explain, the answer is: Probably.

There are certain Florida crimes for which a prior conviction within a certain time frame will automatically enhance your charge to a more serious offense.

But the extent to which it matters will probably depend on:
  • The nature and severity of the offense. The courts will be examining the relevance to the pending charges. An out-of-state misdemeanor trespassing conviction will matter less in a felony sentencing than a prior felony sex crime.
  • Whether there’s an analogous (comparable) crime in Florida statute. Not everything that’s a crime in another state is automatically a crime in Florida.
  • How long ago the offense occurred. A DUI conviction 20 years ago won’t matter as much as one 5 years ago.
  • The disposition of the case. (Charges dropped? Adjudication withheld? Convicted?)
  • Law changes since conviction. You may have a prior out-of-state felony drug conviction, but how much weight should it be given if that same action is no longer criminalized in Florida or the state where it was handled?
When Prior Offenses Factor in Florida Criminal Cases

Florida has established an escalating tier of penalties that hinge at least partially on whether the offense in question is a one-time mistake or part of a larger pattern. Out-of-state prior convictions can play a role in the outcome - either because of the way the statute is written or the sentencing score sheet guidelines or how the judge applies discretion.

For example, F.S. 316.193 explains that a first-time misdemeanor DUI conviction carries a maximum penalty of 6 months in jail and a $1,000 fine. A second misdemeanor DUI conviction within 5 years of a prior DUI conviction, however, is punishable by at least 1 year of mandatory ignition interlock placement (at your expense), plus a maximum fine of $2,000, and jail sentence of between 10 days and 9 months. If there is a third DUI conviction within 10 years of a second conviction, you’re all of the sudden facing a third-degree felony - punishable by up to 5 years in prison.

Similarly, prior out-of-state prior offenses can factor into a defendant’s designation as a habitual felony offender, as outlined in F.S. 775.084. Individuals classified as such have prior convictions for any combination of two or more felonies “in this state or other qualified offenses” (excluding drug possession). Any out-of-state convictions for comparable serious offenses may count against you for the purpose of classifying you as a habitual offender.

Determining whether a prior, out-of-state case is going to count in the sentencing phase of your pending Florida criminal matter is important, and it may impact your defense lawyer’s strategy.

How Florida Assesses Out-of-Jurisdiction Prior Convictions

While criminal laws in many states share a lot of the same general characteristics, there are sometimes key differences in the way the laws are written, the type of behavior they regulate, and the punishments that are doled out. Each state is granted the authority to create and enforce their own laws within the boundaries of the U.S. Constitution.

Some of the ways in which state laws can vary from one to the next:
  • Definitions. While many states basically criminalize the same offenses, there may be specific elements, classifications, and penalties that can vary.
  • Classifications. All states classify crimes by severity using a system of infractions, misdemeanors, and felonies. But what one state considers a misdemeanor another might consider a felony. Florida courts have to be careful how these prior convictions are counted when such disparities exist.
  • Drug laws. These represent some of the most significant chasms in criminal classification and penalties from state-to-state.

Rule 3.701 of the Florida Rules of Criminal Procedure deals with sentencing guidelines. In particular, it defines “prior record” as referring to any past criminal conduct by the accused that resulted in conviction prior to commission of the crime involved in the pending case. The rule expressly states that the term “prior record” should be understood to include ALL prior Florida, federal, out-of-state, military, or foreign convictions AND convictions for violation of city or county ordinances that bring within the local codes a violation of state law.

There are a few guidelines though.

In scoring a conviction handed down by an authority other than the State of Florida, the court must “assign the score for the analogous or parallel” to state law.

If the court is unable to ascertain whether one of these outside convictions was a felony or misdemeanor, it’s to be construed in the defendant’s favor - and scored as a misdemeanor. If the degree of a prior out-of-state felony conviction is somewhat ambiguous, it should be scored as a third-degree felony - the lowest classification of Florida felony.

If an outside conviction can’t be construed as a violation of some parallel or similar state criminal law, it’s not to be scored at all.

Prior criminal traffic offenses are scored as misdemeanors.

If you’ve maintained a conviction-free record for 10 straight years from the date of your most recent release from jail/prison/parole/probation (whichever is latest), the prior record won’t be scored.

Dispositions in juvenile court - Florida or otherwise - probably won’t be considered in sentencing UNLESS the offense in question occurred within 3 years of the pending case AND would have been criminal if committed by an adult.

Bottom line: If you are facing criminal charges in Florida and have prior convictions from outside authorities, it’s important to be upfront with your Fort Lauderdale criminal defense lawyer. No matter your circumstances, we’re committed to fighting for the most favorable outcome in your South Florida criminal case.


If you have been arrested in South Florida, call The Ansara Law Firm in Fort Lauderdale today for your free initial consultation at (954) 761-4011.

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