LARRY BROCKINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A continuing and persistent pattern of criminal activity demonstrating the futility of rehabilitation is a clear and convincing reason for departure from sentencing guidelines.
Appellant was convicted of burglary and petit theft. His sentencing scoresheet indicated a range of 12-30 months incarceration, but the trial court de…
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COBB, Judge.
This is an appeal from a guidelines departure sentence. Appellant, Larry Brock-ington, was charged with burglary of a dwelling and grand theft. Following a jury trial, the jury returned a verdict of guilty of burglary on count one, and of petit theft on count two. A guidelines scoresheet prepared for sentencing showed a total of 66 points, placing the sentence in the range of community control or 12 to 30 months’ incarceration. The trial court determined to depart from the guidelines, noting both at the sentencing hearing and in writing on the guidelines scoresheet as follows:
In 1983 I sentenced this defendant to community control — he violated that twice and I sent him to prison two years. After being released he is again convicted of the same crime — burglary—30 months is not sufficient.
The trial court adjudicated Brockington guilty of the crimes as found by the jury, and sentenced him to four years’ imprisonment for the burglary and one year’s probation, to run consecutively, for the petit theft. Brockington timely appeals, contending departure was improper. Prior to Williams v. State, 504 So. 2d 392 (Fla.1987), it would have been difficult for us to affirm this departure. Now, however, the pendulum has swung, and the Florida Supreme Court has held that a “continuing and persistent pattern of criminal activity” demonstrating the futility of rehabilitation constitutes a clear and convincing reason for departure. Williams at 392. This is a step beyond Keys v. State, 500 So. 2d 134 (Fla.1986), which recognized an “escalating course of criminal conduct” as a basis for departure, and indicates approval of departure sentences for persistent offenders.
AFFIRMED.
DAUKSCH and SHARP, JJ., concur.
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State v. DeSHONG, 603 So. 2d 1349 (Fla. 2d DCA 1992)…d DCA 1989); § 901.-151, Fla.Stat. (Supp.1990). Thereafter, the probable cause needed to arrest or to suspend a license for DUI may be based upon evidence obtained during the standard procedures following a valid traffic stop. See State v. Carrillo, 506 So. 2d 495 (Fla. 5th DCA 1987). Erratic driving similar to that involved in this case has been held sufficient to establish a founded suspicion and to validate a DUI stop. See, e.g., Carrillo (weaving within a traffic lane); Esteen v. State, 503 So. 2d 356 (F…
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Roberts v. State, 732 So. 2d 1127 (Fla. 4th DCA 1999)…necessary founded suspicion to support a stop. See Brown v. State, 595 So. 2d 270 (Fla. 2d DCA 1992) (finding that the absence of a traffic offense does not establish the absence of a valid objective basis for the stop); State v. Carillo[Carrillo], 506 So. 2d 495 (Fla. 5th DCA 1987) (“an officer can stop a driver based upon a founded suspicion that he is driving while under the influence”); State, Dept. Highway Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349 (Fla. 2d DCA 1992) (driving behavior need no…1 / 2
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Therion Frierson v. State, 511 So. 2d 1016 (Fla. 5th DCA 1987)…all based merely on a simple finding that Frierson is “an habitual offender.” Departure may be available in this case, however, if requisite findings are made in conformity with Williams v. State, 504 So. 2d 392 (Fla.1987). See Brockington v. State, 506 So. 2d 495 (Fla. 5th DCA 1987). REVERSED and REMANDED for re-sentencing. UPCHURCH, C.J., and SHARP, J., concur. . The rule provides: A court may at any time correct an illegal sentence imposed by it.... . But see McCuiston v. State, 12 FLW 1357 (Fla. 2nd…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Keys v. State, 500 So. 2d 134 (Fla. 1986)
- Williams v. State, 504 So. 2d 392 (Fla. 1987)