You have been charged with a felony, and the paperwork says more: that you are a habitual criminal or a habitual offender. People call it the “three strikes” law. You want to know what that label means for the sentence.
I’ll walk you through what the Massachusetts statute says, in the order a case usually unfolds: what the law covers, which prior convictions count, how the charge is tried, what must be proved, the sentences, related laws, and how a defense is built.
What the Habitual Offender Law Is
The habitual offender law, G.L. c. 279, § 25, calls for the maximum prison term for a new conviction when a person already has two qualifying prior convictions.
It is not a separate crime. It attaches to a new charge and changes the punishment if the prior convictions are proved. It has four parts:
- § 25(a), the “habitual criminal”: any felony, after two prior convictions with prison sentences of at least 3 years.
- § 25(b), the “habitual offender”: a listed offense, after two prior listed offenses, with stricter sentencing rules.
- § 25(c): juvenile and youthful offender cases do not count under § 25(b).
- § 25(d): warnings the court must give at earlier qualifying cases.
Who Counts as a Habitual Criminal Under § 25(a)
Section 25(a) applies to a person convicted of any felony who has two earlier convictions that each carried a prison sentence of at least 3 years.
The statute says: “Whoever is convicted of a felony and has been previously twice convicted and sentenced to state prison or state correctional facility or a federal corrections facility for a term not less than 3 years by the commonwealth, another state or the United States … shall be considered a habitual criminal.”
So § 25(a) needs a new felony conviction and two earlier convictions, each with a sentence of at least 3 years to one of those facilities, from Massachusetts, another state, or the United States.
Under G.L. c. 274, § 1, “A crime punishable by death or imprisonment in the state prison is a felony. All other crimes are misdemeanors.” See the difference between misdemeanors and felonies.
Who Counts as a Habitual Offender Under § 25(b)
Section 25(b) applies when the new conviction and both earlier convictions are for offenses on a list written into the statute.
The list names specific sections of the General Laws. By their official headings, they include:
- Homicide: murder, manslaughter, manslaughter while operating a motor vehicle, attempt to murder, and assault with intent to murder or maim.
- Serious assaults: assault and battery causing serious bodily injury, assault and battery with a dangerous weapon causing serious bodily injury, assault and battery on a child causing bodily injury, mayhem, armed assault in a dwelling, poisoning with intent to injure, and assault or battery for the purpose of intimidation under c. 265, § 39(b).
- Robbery, firearms, and break-ins: armed robbery and assault with intent to rob or murder “if armed with a firearm,” use of a firearm while committing a felony, armed entry of a dwelling with people inside, stealing by confining or putting in fear, armed burglary, and biological, chemical, or nuclear weapons.
- Sex, child, and kidnapping offenses: indecent assault and battery on a child under 14 or on a person with an intellectual disability, rape, rape of a child, assault with intent to rape, kidnapping, drugging for kidnapping, child enticement, inducing a minor into prostitution, incest, child sexual-material offenses, unnatural and lascivious acts with a child under 16, and c. 272, § 53A(b).
A “like violation” in another state, the United States, or a military, territorial, or Indian tribal authority also counts.
Section 25(b) adds timing rules. The priors must arise from “charges separately brought and tried,” from “separate and distinct incidents that occurred at different times,” with the second offense after the first conviction. Each prior must carry “at least 3 years to be served.” The new offense must occur after the second conviction.
What Does Not Count: Juvenile Cases and Pardons
The statute keeps some earlier cases from counting at all.
Under § 25(c), no one is a habitual offender under § 25(b) based on an offense for which the person “was adjudicated a youthful offender, a delinquent child,” or was treated as a juvenile elsewhere. An “adjudication” is a juvenile court finding, not an adult conviction.
Both § 25(a) and § 25(b) exclude a prior when the defendant shows a pardon “on the ground that” the person “was innocent.” The statute puts that showing on the defendant.
Warnings at Earlier Cases
Section 25(d) requires a judge to warn a defendant, at a qualifying earlier case, that the statute may apply later.
The warning comes when the court sentences a defendant “to a qualifying term of incarceration,” or before accepting a guilty plea to a § 25(b) listed offense. The judge must say a third or later conviction may bring the maximum term, no reduction or suspension, and no probation, parole, work release, furlough, or good-conduct deductions.
But “No otherwise valid plea or conviction shall be vacated based upon the failure to give such warnings.” See my article on plea hearings.
How the Charge Is Brought and Tried
The prior convictions are charged in the complaint or indictment but kept from the jury until the new charge is decided.
The procedure is in G.L. c. 278, § 11A, whose official heading is “Habitual criminals; separate trial on issue of prior conviction.” It applies when the charge alleges “a second or subsequent offense,” in this order:
- At arraignment, the defendant pleads only to the new crime. The prior-conviction part “shall not be read in open court.”
- At trial, that part is not read or shown to the jury, or “referred to in any manner.” If the defendant testifies, § 11A does not prevent impeachment (challenging believability) with prior convictions, subject to G.L. c. 233, § 21.
- After a guilty plea or verdict on the new crime, the defendant pleads to the prior-conviction part.
- On a not guilty plea to that part, there is a separate jury trial on the priors, “subject to all of the provisions of law governing criminal trials.” The defendant may waive a jury.
Section 25 calls for state prison or a state correctional facility. Under G.L. c. 218, § 27, the district court “may not impose a sentence to the state prison.” If the case is brought by indictment, see what a grand jury is. The first court date is ordinarily the arraignment.
What the Commonwealth Must Prove
The Commonwealth must prove the new crime first and then, at the separate trial, the prior convictions the statute requires.
The new crime must be proved beyond a reasonable doubt. Reading § 25 closely, the enhanced sentence then requires:
- Under § 25(a): two earlier convictions, each with a sentence of not less than 3 years to state prison, a state correctional facility, or a federal corrections facility.
- Under § 25(b): a new listed offense and two earlier listed offenses, each with at least 3 years to be served.
- Under § 25(b): separate charges and incidents, in the order the statute sets.
- That the prior convictions are the defendant’s own.
Sentencing Under § 25(a)
A habitual criminal “shall be punished by imprisonment in state prison or state correctional facility for such felony for the maximum term provided by law.”
The “maximum term provided by law” means the top of the range in the statute for the new felony.
Normally, under G.L. c. 279, § 24, a judge imposing state prison sets a minimum and a maximum term. Section 24 expressly excepts a sentence “as an habitual criminal.”
Section 25(a) does not contain the list of bars found in § 25(b). In Commonwealth v. Montarvo, 486 Mass. 535 (2020), the Supreme Judicial Court held that § 25(a) allows a sentencing judge to impose probation.
For parole, G.L. c. 127, § 133B requires the parole board to consider release “within 60 days before the expiration of two-thirds of the maximum sentence” of a person sentenced under § 25, and at least every 2 years after. That rule excludes § 25(b) habitual offenders. The period is calculated with good-conduct deductions.
Sentencing Under § 25(b)
A habitual offender under § 25(b) receives the maximum term for the new listed offense, with no early release of the kinds the statute names.
The person “shall be imprisoned in the state prison or state correctional facility for the maximum term provided by law.” Then:
- The sentence cannot be “reduced or suspended.”
- No probation, parole, work release, or furlough.
- No “deduction from such person’s sentence for good conduct.”
- If the person is already serving a state prison sentence, the new one “shall commence upon the conclusion of” it, meaning it starts after the current sentence ends.
G.L. c. 127, § 133B repeats the bars on parole, work release, furlough, and good-conduct deductions. For how deductions usually work, see earned good time.
Related Laws on Repeat Offenses
Other statutes also raise penalties based on prior convictions, each with its own rules.
- Second or subsequent offense provisions in many individual statutes. See what counts as a subsequent offense.
- The armed career criminal statute, G.L. c. 269, § 10G, for certain firearm violations after violent crime or serious drug convictions.
- Use of a firearm while committing a felony, G.L. c. 265, § 18B, itself on the § 25(b) list.
- The habitual traffic offender designation, G.L. c. 90, § 22F, a Registry license revocation based on driving convictions. It is not a sentence under § 25.
See also my article on mandatory minimum sentences.
Defenses Built on the Statute’s Words
A defense starts with the statute itself, and every requirement the Commonwealth cannot prove is a defense. These questions come out of § 25.
- Is the new charge a felony under § 25(a), or a listed offense under § 25(b)?
- Are there two earlier convictions, and are they the defendant’s?
- Did each carry at least 3 years to a facility the statute names?
- Under § 25(b), were the priors separately brought and tried, from separate incidents, in the required order?
- Is a prior a juvenile or youthful offender adjudication?
- Was there a pardon on the ground of innocence?
- Does an out-of-state prior fit the statute’s words?
These questions are not a checklist for any one case. They are the places where the statute puts a burden on the Commonwealth.
Frequently Asked Questions
Is being a habitual offender a separate crime?
No. Section 25 changes the punishment for a new conviction.
Can a habitual offender get probation?
Not under § 25(b), which bars it. Under § 25(a), the Supreme Judicial Court held in Montarvo that probation is allowed.
Do juvenile cases count as strikes?
Under § 25(c), youthful offender and delinquency adjudications do not count toward § 25(b).
Do convictions from other states count?
Section 25(a) counts convictions by “another state or the United States.” Section 25(b) counts “like” violations elsewhere.
Will the jury hear about my prior record?
Under G.L. c. 278, § 11A, not during the trial on the new crime, except for impeachment if you testify.
Is this the same as a habitual traffic offender?
No. That is a Registry license revocation under G.L. c. 90, § 22F.
Facing a Habitual Offender Charge? Talk to a Lawyer
A habitual offender charge under § 25 can turn a new felony into the maximum sentence the law allows, and everything turns on the prior records and the statute’s exact words. You should not face it alone. The Law Office of William J. Barabino in Medford has over 23 years of experience in Massachusetts criminal defense and represents clients throughout Greater Boston.
Call 781-393-5900 to talk about your charge and your options.
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Disclaimer
This article is for general educational information about Massachusetts criminal law. It is not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.
