EUGENE L. PASCHALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eugene Paschall appealed his departure sentence, challenging both the validity of the departure ground and the extent of the sentence increase. The court affirmed the sentence, finding that the temporal proximity of crimes committed across multiple months constituted a valid basis for departure under the 'crime spree' rationale.
The court held that the temporal proximity of crimes demonstrating a continuing and persistent pattern of criminal activity constitutes a valid departure ground, and that the extent of the departure sentence does not constitute an abuse of discretion under the applicable legal standard.
[1] A departure sentence is valid when based on a single, legally sufficient ground, even if other grounds were previously invalidated.
[2] A "one-man crime spree" may constitute a valid ground for departure from sentencing guidelines when the temporal proximity of offenses demonstrates a continuing and persi…
Previewing 2 of 5 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“Crime binge is not a clear and convincing ground for departure when each crime is calculated in determining the guidelines sentence, and "[t]here are no additional facts that would justify departure."”
Establishes the critical distinction that a crime binge involving crimes already calculated in guidelines is not a valid departure ground, but a pattern showing temporal proximity and continuing criminal activity is valid.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePaschall was convicted of multiple offenses committed in October 1984 (two offenses), November 1984 (three offenses), and March 1985 (four offenses). …
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FRANK, Judge.
Paschall, appearing pro se, appeals from the departure sentence imposed upon him following remand from this court in Paschall v. State, 501 So. 2d 1370 (Fla. 2d DCA 1987) (Paschall I).
In Paschall I we determined that only one departure ground was valid. We remanded for resentencing because of the invalid reasons. On remand, the trial court sentenced Paschall to the same sentence, finding that the one valid ground was sufficient to support the departure.
Paschall contends that the reason for departure has, subsequent to the remand by this court, been declared invalid. The departure ground we determined to be valid in Paschall I was “One-man crime spree.” 501 So. 2d at 1372. We found that the record supported the departure reason because: “[A]ppellant committed two of the offenses for which he was convicted in October 1984, three offenses were committed in November 1984, and finally appellant committed four more of the offenses in March 1985.” Id.
The first district in Smith v. State, 532 So. 2d 70, 71 (Fla. 1st DCA 1988) aptly explained the distinction which is critical to the determination of the validity of this departure ground:
Crime binge is not a clear and convincing ground for departure when each crime is calculated in determining the guidelines sentence, and “[t]here are no additional facts that would justify departure.” Mathis v. State, 515 So. 2d 214, 216 (Fla.1987). See also State v. Rousseau, 509 So. 2d 281, 283 (Fla.1987). However, where the temporal proximity of the commission of the crimes demonstrates the “defendant’s involvement in a continuing and persistent pattern of criminal activity,” a valid ground for departure exists. State v. Jones, 530 So. 2d 53, 56 (Fla.1988).
The present record supports the departure ground based upon the temporal proximity of the crimes noted by the trial court on the sentencing guidelines scoresheet. Jones. We affirm the departure sentence.
Paschall also challenges the extent of departure, i.e, the quintupling of the presumptive sentence. Paschall committed the offenses in question prior to the effective date of section 921.001(5) which provides that the extent of departure is no longer subject to judicial review. The amendment does not apply retroactively; Booker v. State, 514 So. 2d 1079 (Fla.1987), hence, his sentence is subject only to the “abuse of discretion” standard adopted in Albritton v. State, 476 So. 2d 158 (Fla.1985). We find no abuse of discretion.
AFFIRMED.
SCHOONOVER, A.C.J., and HALL, J., concur.
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Erick Mott v. State, 549 So. 2d 1128 (Fla. 3d DCA 1989)…served by the trial court in Williams v. State, 504 So. 2d 392 (Fla.1987) was characterized' as “substantially more than mere reference to the defendant’s prior criminal record” and held sufficient grounds for departure. Also, in Paschall v. State, 538 So. 2d 470 (Fla. 2d DCA), review denied, 545 So. 2d 1368 (Fla.1989), where the defendant had committed two offenses in October 1984, three offenses in November 1984, and four more offenses in March 1985, a departure sentence based upon an established pattern o…
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LEE v. State, 644 So. 2d 578 (Fla. 2d DCA 1994)…PER CURIAM. Affirmed. See Paschall v. State, 538 So. 2d 470 (Fla. 2d DCA), review denied, 545 So. 2d 1368 (Fla.1989). FRANK, C.J., and PARKER and LAZZARA, JJ., concur.…
Authorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- State v. Cledius Orlando Jones, 530 So. 2d 53 (Fla. 1988)
- Dilar S. Booker v. State, 514 So. 2d 1079 (Fla. 1987)
- Mathis v. State, 515 So. 2d 214 (Fla. 1987)
- Bondurant v. Nickolas P. Geeker, 515 So. 2d 214 (Fla. 1987)
- Paschall v. State, 501 So. 2d 1370 (Fla. 2d DCA 1987)
- Smith v. State, 532 So. 2d 70 (Fla. 1st DCA 1988)