STINGRAY JONES, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court addressed whether the habitual offender statute can be used to enhance a defendant's sentence beyond guideline recommendations and statutory maximums. The court held that it can, and approved a departure sentence based on the defendant's pattern of criminal conduct and timing of offenses.
The habitual offender statute can be used to enhance a sentence beyond the guideline recommendations and statutory maximum penalties. A continuing and persistent pattern of criminal activity and the timing of offenses in relation to prior offenses and release from incarceration are valid grounds for departure sentences.
[1] The habitual offender statute may be used to enhance a defendant's sentence beyond the recommended guidelines sentence and beyond the maximum statutory penalty, provided…
[2] A continuing and persistent pattern of criminal activity is a valid ground for departing from a presumptive guidelines sentence.
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Join FLexlaw to unlock all legal intelligence“Does Whitehead v. State, 498 So. 2d 863 (Fla.1986) prevent the use of the habitual offender statute to enhance a defendant's sentence beyond the recommended guidelines sentence and beyond the maximum statutory penalty where there are otherwise valid grounds for departure?”
The certified question of great public importance that the Supreme Court was asked to answer regarding the scope of habitual offender sentencing enhancement.
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Join FLexlaw to unlock all legal intelligenceJones committed the instant offense eight days after being released from his third separate prison commitment. He had been placed on probation and was…
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OVERTON, Justice.
This is a petition to review Jones v. State, 517 So. 2d 121 (Fla. 4th DCA 1987), in which the district court approved a departure sentence enhanced by the habitual offender statute and based on grounds that Jones had committed “the instant offense eight days after being released from his third separate prison commitment”; that his behavior “demonstrates a continuing escalating pattern of criminal conduct”; and, since he had been “placed on probation he has been convicted of three additional grand thefts which could not be scored under the guidelines.” In approving the sentence, the district court certified the following question as one of great public importance:
Does Whitehead v. State, 498 So. 2d 863 (Fla.1986) prevent the use of the habitual offender statute to enhance a defendant’s sentence beyond the recommended guidelines sentence and beyond the maximum statutory penalty where there are otherwise valid grounds for departure? Jones, 517 So. 2d at 122. We have jurisdiction. Art. Y, § 3(b)(4), Fla. Const. We have recently answered certified questions approving the use of the habitual offender statute to extend the maximum penalty of a crime in a manner consistent with the guidelines. Winters v. State, 522 So. 2d 816 (Fla.1988). See also Hester v. State, 520 So. 2d 273 (Fla.1988); Tillman v. State, 525 So. 2d 862 (Fla.1988). Accordingly, we answer the certified question in the negative.
With regard to the grounds for departure, we recently stated in Williams v. State, 504 So. 2d 392, 393 (Fla.1987), that
[njeither the continuing and persistent pattern of criminal activity nor the timing of each offense in relation to prior offenses and release from incarceration or supervision are aspects of a defendant’s prior criminal history which are factored in to arrive at a presumptive guidelines sentence. Therefore, there is no prohibition against basing a departure sentence on such factors.
We find this departure sentence proper and approve the decision of the district court.
It is so ordered.
EHRLICH, C.J., and McDONALD, SHAW and GRIMES, JJ., concur. BARKETT, J., concurs in part and dissents in part with an opinion, in which KOGAN, J., concurs.
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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Gibson v. State, 553 So. 2d 701 (Fla. 1989)…ellant 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…
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Tobias Barfield v. State, 564 So. 2d 616 (Fla. 4th DCA 1990)…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 criminal conduct” existed, Justice Barkett’s concurr…1 / 2
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Frederick v. State, 556 So. 2d 471 (Fla. 1st DCA 1990)…f crimes, see State v. Simpson, 554 So. 2d 506 (Fla.1989); State v. Jones, 530 So. 2d 53 (Fla.1988), and between the relevant crime and a previous release from custody, as in this case, Gibson v. State, 553 So. 2d 701 (Fla.1989), and Jones v. State, 553 So. 2d 702 (Fla.1989). In light, however, of the generalized discussion of the topic in State v. Jones, 530 So. 2d at 56, which does not differentiate between the two ("Our review of the time sequence of these crimes does not persuade us that Jones established…1 / 2
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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)
- Tillman v. State, 525 So. 2d 862 (Fla. 1988)
- Gibson v. State, 553 So. 2d 701 (Fla. 1989)
- Hester v. State, 520 So. 2d 273 (Fla. 1988)
- Stingray Jones v. State, 517 So. 2d 121 (Fla. 4th DCA 1987)