SIDNEY OLLIE GIBSON, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court addressed whether commission of new crimes within fourteen months of release from incarceration constitutes a valid ground for departure from sentencing guidelines. The Court held that while timing of reoffense may sometimes justify departure, fourteen months is too long a period to permit such departure.
The Court answered the certified question in the negative, holding that fourteen months is too long a period to permit departure on the basis of prior record within a short period of time, despite acknowledging that timing may under appropriate circumstances be a valid reason for departure.
[1] Commission of new crimes within fourteen months of release from incarceration for prior offenses is not a valid ground for departure from sentencing guidelines.
[2] A departure sentence may be permissible when the instant offense is committed a very short period after release from prison.
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Join FLexlaw to unlock all legal intelligence“Although we agree that timing may, under appropriate circumstances, be an appropriate reason to depart, we find that fourteen months is too long a period to permit departure on this basis.”
Establishes the Court's holding that while timing can justify departure in some cases, fourteen months is too long a period
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Join FLexlaw to unlock all legal intelligenceGibson was convicted of two counts of burglary and three counts of grand theft resulting from two criminal episodes on the same date. He had been rele…
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PER CURIAM.
We have for review Gibson v. State, 519 So. 2d 756 (Fla. 1st DCA 1988), which certified the following question:
Whether commission of new crimes within fourteen months of release from incarceration for prior offenses is a valid ground for departure from the guidelines.
We have jurisdiction. Art V, § 3(b)(4), Fla. Const. We answer in the negative and quash the opinion below.
In the proceedings below, petitioner was convicted of two counts of burglary and three counts of grand theft, resulting from two criminal episodes on the same date. The trial court departed from the recommended guidelines sentence for three reasons, only one of which was upheld by the district court below.* That reason was stated only as “ ‘prior record within a short period of time.’ ” Gibson, 519 So. 2d at 757. On appeal, the district court interpreted this phrase to mean “that appellant had been released from prison only fourteen months before committing the offenses sub judice.” Id. The district court then affirmed on authority of this Court’s holding in Williams v. State, 504 So. 2d 392, 393 (Fla.1987).
In Jones v. State, 553 So. 2d 702 (Fla.1989), we approved a departure sentence because “the instant offense [was committed] eight days after being released from his third prison commitment.” Although we agree that timing may, under appropriate circumstances, be an appropriate reason to depart, we find that fourteen months is too long a period to permit departure on this basis.
The certified question is answered in the negative and the opinion below is quashed. The trial court shall sentence petitioner to a guidelines sentence, since no valid rea sons for departure remain. We remand for proceedings consistent with this opinion.
It is so ordered.
EHRLICH, C.J., and OVERTON, SHAW and GRIMES, JJ., concur. BARKETT, J., concurs specially with an opinion, in which KOGAN, J., concurs.
McDONALD, J., dissents.
*
The other two were that appellant was an habitual felony offender and that the sentence was necessary for the protection of society. 519 So. 2d at 757. We have held in Winters v. State, 522 So. 2d 816, 817 (Fla.1988), that the habitual offender statute remains viable for the limited purpose of extending the statutory maximum penalty to permit imposition of the guidelines recommendation. However, departure from the guidelines may not be based on habitual offender status. Whitehead v. State, 498 So. 2d 863 (Fla.1986). In the present case, the trial court apparently did not follow the statutory procedure for habitualizing petitioner, but improperly departed for this reason.
BARKETT, Justice,
specially concurring.
Upon further consideration, I would recede from Williams v. State, 504 So. 2d 392 (Fla.1987), and not permit timing alone to be an appropriate reason to depart. I am at a loss as to what standard might be adopted to guide trial judges in applying such a factor. In Jones, we approved eight days. Here, we disapprove fourteen months. It appears to me that this factor is not susceptible to articulable standards, and therefore should not be permitted.
KOGAN, J., concurs.
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Citator
Cited By (13 total)
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Stingray Jones v. State, 553 So. 2d 702 (Fla. 1989)…BARKETT, Justice, concurring in part, dissenting in part. I do not agree that timing of an offense may be considered an appropriate reason to depart, for the reasons expressed in my special concurring opinion in Gibson v. State, 553 So. 2d 701 (Fla.1989). KOGAN, J., concurs.…
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Hernandez v. State, 569 So. 2d 857 (Fla. 2d DCA 1990)…llant committed show no persistent pattern of similar crimes nor an escalation to violence. Temporal proximity, under certain conditions, can constitute a valid reason for departure. State v. Simpson, 554 So. 2d 506, 509 (Fla.1989); Gibson v. State, 553 So. 2d 701 (Fla.1989). The circumstances of the present case, however, do not justify departure. Thus, we reverse the departure sentence and remand for sentencing within the guidelines. Affirmed in part and reversed in part. CAMPBELL, A.C.J., and THREADGILL,…
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Tobias Barfield v. State, 564 So. 2d 616 (Fla. 4th DCA 1990)…t also be demonstrated. Frederick, 556 So. 2d at 472-473 (footnotes omitted); citing, Davis v. State, 534 So. 2d 821 (Fla. 4th DCA 1988) (one prior “not included” strong arm robbery does not establish pattern of criminal conduct). Gibson v. State, 553 So. 2d 701 (Fla.1989) and Jones v. State, 553 So. 2d 702 (Fla. 1989), decided after State v. Jones, apparently approve temporal proximity of crimes as a sole basis for departure. While the majority opinions do not reveal whether a “persistent pattern of crimin…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- Winters v. State, 522 So. 2d 816 (Fla. 1988)
- Stingray Jones v. State, 553 So. 2d 702 (Fla. 1989)
- Gibson v. State, 519 So. 2d 756 (Fla. 1st DCA 1988)