JEFFREY ALAN BRIER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jeffrey Brier appeals his enhanced sentencing for sexual battery, grand theft, and burglary. The trial court imposed a 17-year sentence based on two reasons: habitual offender status and an escalating pattern of criminal conduct. The appellate court reversed, finding the habitual offender reason improper but upholding the escalation rationale as valid grounds for departure.
The trial court's departure based on habitual offender status was improper and cannot support the enhanced sentence, but its reliance on the escalating pattern of criminal conduct from property crimes to violent crimes against persons was proper and constitutes clear and convincing reason for departure. The case is remanded for resentencing because the state failed to meet its burden of showing the departure would have been imposed absent the improper habitual offender reason.
[1] A trial court may not depart from sentencing guidelines based on a finding that a defendant meets the criteria of an habitual offender.
[2] An escalating pattern of criminal conduct, where a defendant's crimes progress from property offenses to violent crimes against persons, constitutes a clear and convincin…
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Join FLexlaw to unlock all legal intelligence“a trial court may not depart from the guidelines for that reason”
Establishes that habitual offender status cannot justify departure from sentencing guidelines
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Join FLexlaw to unlock all legal intelligenceBrier was convicted of two counts of sexual battery, two counts of grand theft, and one count of burglary arising from a single criminal episode. His …
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DANAHY, Chief Judge.
Appellant appeals his judgment and sentences for two counts of sexual battery, two counts of grand theft, and one count of burglary — all arising out of one criminal episode. His presumptive guidelines sentence of nine to twelve years was enhanced to a seventeen-year prison term on one of the sexual battery counts and concurrent terms ranging from fifteen down to five years on the other counts. Appellant contends that both reasons given by the trial court to justify its departure sentence were improper. We agree in part and reverse for resentencing. The first reason given for the departure sentence was based on a finding that appellant met the criteria of an habitual offender pursuant to section 775.084, Florida Statutes (1985). Our supreme court has held that a trial court may not depart from the guidelines for that reason. Whitehead v. State, 498 So. 2d 863 (Fla.1986).
The second reason given was that, based on his prior record, appellant’s crimes were becoming more violent. The record reveals that prior to the instant charges, appellant was adjudicated a juvenile delinquent in 1974 based on two counts of breaking and entering, and that his adult convictions include a 1979 petit theft, a 1979 burglary of a conveyance, another petit theft in 1982, and a 1983 trespass of an occupied structure. Juxtaposing these convictions with the instant convictions of two counts of grand theft, a burglary, and two counts of sexual battery, we find that this progression meets the standard of an escalating pattern of criminal conduct. Appellant has graduated from crimes against property to violent crimes against persons. The supreme court has recently addressed this issue and determined that such an escalation is a clear and convincing reason to support departure. Keys v. State, 500 So. 2d 134 (Fla.1986).1
The state has not met its burden of showing beyond a reasonable doubt that the departure sentence would have been imposed absent the first reason, which we find is improper. Therefore, pursuant to Albritton v. State, 476 So. 2d 158 (Fla.1985), we reverse the sentence and remand for resentencing. Wade v. State, 482 So. 2d 346 (Fla.1986).
The judgment is affirmed; the sentences are reversed and remanded for resentencing.
SCHOONOVER and SANDERLIN, JJ., concur. . We note that the trial court's departure reason could also have been affirmed on the basis that it was a qualitative determination (rather than a quantitative one) and thus a circumstance surrounding the offense at sentencing which is not factored into the presumptive sentence. Fabelo v. State, 488 So. 2d 915 (Fla. 2d DCA 1986); Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985). See abo Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985); May v. State, 475 So. 2d 1004 (Fla. 5th DCA 1985); Johnson v. State, 477 So. 2d 56 (Fla. 5th DCA 1985); Riggins v. State, 489 So. 2d 180 (Fla. 1st DCA 1986). Compare Frank v. State, 490 So. 2d 190 (Fla. 2d DCA 1986) (where a continuing course of various types of battery convictions is a violation of Hendrix v. State, 475 So. 2d 1218 (Fla.1985)).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Morgan v. State, 550 So. 2d 151 (Fla. 3d DCA 1989)…r; both his extensive juvenile record and his escalating pattern of criminal activity are valid reasons for departure. Williams; Keys v. State, 500 So. 2d 134 (Fla.1986); McGriff v. State, 528 So. 2d 396 (Fla. 3d DCA 1988); Musgrove; Brier v. State, 504 So. 2d 809 (Fla. 2d DCA 1987). The Morgans’ remaining points lack merit. See Felton v. State, 523 So. 2d 775 (Fla. 3d DCA 1988). Convictions affirmed; Andre Morgan’s sentence reversed; Anthony Morgan’s sentence affirmed; remanded for resentenc-ing. . Althou…
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COX v. State, 508 So. 2d 1318 (Fla. 1st DCA 1987)…ly noted the escalation from nonviolent to violent crimes: “We find that this escalation from crimes against property to violent crimes against persons is a clear and convincing reason for departure....” 500 So. 2d at 136. See also Brier v. State, 504 So. 2d 809 (Fla. 2d DCA 1987); Abt v. State, 504 So. 2d 548 (Fla. 4th DCA 1987); and Hester v. State, 503 So. 2d 1342 (Fla. 1st DCA 1987), all making specific reference to defendant’s “graduation” or “escalation” from nonviolent crimes against property to viol…
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Knox v. State, 549 So. 2d 231 (Fla. 3d DCA 1989)…5th DCA 1987); and a pattern of criminal conduct escalating from nonviolent crimes against property to violent crimes against the person, Keys v. State, 500 So. 2d 134 (Fla.1986); McGriff v. State, 528 So. 2d 396 (Fla. 3d DCA 1988); Brier v. State, 504 So. 2d 809 (Fla. 2d DCA 1987), are all valid reasons for departure from the presumptive guidelines. However, because the use of excessive force will almost always result in victim injury, its employment as a reason to depart is duplicative when victim.injury i…
Authorities Cited (13 total)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Keys v. State, 500 So. 2d 134 (Fla. 1986)
- Dilar S. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985)
- Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985)
- Johnson v. State, 477 So. 2d 56 (Fla. 5th DCA 1985)
- Frank v. State, 490 So. 2d 190 (Fla. 2d DCA 1986)
- MAY v. State, 475 So. 2d 1004 (Fla. 5th DCA 1985)