ANTHONY C. BOGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed armed robbery conviction but vacated life sentence imposed above guidelines range because the trial court's stated reasons for departure—habitual offender status, prior rehabilitation failures, and escalating criminal pattern—were either legally invalid or unsupported by facts.
A trial court's departure from sentencing guidelines must be supported by valid reasons, and an escalating pattern of criminal conduct cannot justify departure absent factual support showing escalation in the nature or severity of crimes.
[1] A trial court's stated reasons for departing from sentencing guidelines must be legally valid and factually supported; habitual offender status and prior rehabilitation f…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“An escalating pattern of criminal activity, the trial court's second reason, can be a valid reason for departure when supported by the facts.”
Court explaining when escalating pattern can justify departure from guidelines, citing Keys v. State.
Anthony Bogan was convicted of armed robbery on September 12, 1986, and sentenced to life imprisonment despite sentencing guidelines recommending nine…
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SCHEB, Acting Chief Judge.
On September 12,1986, defendant Anthony Bogan was found guilty of armed robbery and sentenced to life imprisonment. His sentencing guidelines scoresheet showed a recommended range of nine to twelve years in prison. In this appeal the defendant argues that the trial court’s departure from the guidelines was not supported by valid reasons. We agree.
The trial judge filed three written reasons for departure: (1) defendant is an habitual felony offender, (2) defendant’s extensive background of criminal activity indicating an escalating pattern of criminal conduct, and (3) failure of previous attempts to rehabilitate the defendant. The state concedes that the first reason is not valid. Whitehead v. State, 498 So. 2d 863 (Fla.1986). The third reason is also invalid. Baker v. State, 517 So. 2d 753 (Fla. 2d DCA 1987). An escalating pattern of criminal activity, the trial court’s second reason, can be a valid reason for departure when supported by the facts. Keys v. State, 500 So. 2d 134 (Fla.1986) (defendant’s crimes escalated from crimes against property to violent crimes against persons).
Although the trial judge departed from the guidelines based on defendant’s convictions of several felonies which occurred in 1982 and the instant offense, which occurred in 1986, we do not find that the defendant’s behavior presents an escalating pattern within the teachings of Keys.
Accordingly, we affirm the defendant’s conviction but vacate the sentence and remand for resentencing within the recommended range of the sentencing guidelines.
HALL and PARKER, JJ., concur.
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Citator
Cited By
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Rommell Johnson v. State, 535 So. 2d 651 (Fla. 3d DCA 1988)…was not convicted, see Tuthill v. State, 518 So. 2d 1300 (Fla. 3d DCA 1987); and the defendant’s lack of amenability to rehabilitation, see Ruiz v. State, 516 So. 2d 1057 (Fla. 3d DCA 1987), review denied, 525 So. 2d 880 (Fla.1988); Bogan v. State, 528 So. 2d 1341 (Fla. 3d DCA 1988); Tapia v. State, 509 So. 2d 354 (Fla. 2d DCA 1987); cf. Braggs v. State, [*655] 522 So. 2d 536 (Fla. 3d DCA 1988) — were invalid, and we are not convinced that the trial court would have departed from the guidelines based only on…
Authorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Keys v. State, 500 So. 2d 134 (Fla. 1986)
- Baker v. State, 517 So. 2d 753 (Fla. 2d DCA 1987)