DONALD L. JACKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the reasons provided by the trial court for imposing a guidelines departure sentence were inadequate.
The defendant appealed a guidelines departure sentence imposed after a violation of probation. The trial court cited an escalating pattern of criminal…
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COWART, Judge.
The defendant appeals a guidelines departure sentence imposed after a violation of probation. The trial court gave several written reasons for departure. We find the reasons inadequate and vacate the departure sentence.
The trial court’s reason that the defendant’s behavior shows a continuing and persistent and escalating pattern of criminal conduct is not supported by the record. The sentence under review was imposed for a non-violent third degree felony.1 The defendants subsequent offenses were a non-violent third degree felony 2 and a nonviolent first degree misdemeanor.3 This record does not “indicate an escalating pattern of criminal conduct” as would authorize a departure sentence under section 921.001(8), Florida Statutes, and Keys v. State, 500 So. 2d 134 (Fla.1986). See also Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989).
The other reasons given are based on the defendant’s violation of probation and were used as a basis for a departure sentence greater than the one cell increase in the guidelines provided by Florida Rule of Criminal Procedure 3.701d.l4. Upon revocation of probation, the trial court is limited to the original guidelines sentence and the one cell increase for violation of probation. Ree v. State, 14 F.L.W. 565 (Fla. Nov. 16, 1989); Dewberry v. State, 546 So. 2d 409 (Fla.1989); Lambert v. State, 545 So. 2d 838 (Fla.1989); Maddox, supra; Perez v. State, 554 So. 2d 14 (Fla.3d DCA 1989); Banks v. State, 553 So. 2d 759 (Fla. 2d DCA 1989); Ferguson v. State, 550 So. 2d 1176 (Fla. 3d DCA 1989); see also Scott v. State, 550 So. 2d 111 (Fla. 4th DCA 1989). Therefore, the sentence imposed is vacated and the cause remanded for appropriate re-sentencing.
SENTENCE VACATED; CAUSE REMANDED.
DANIEL, C.J., and SHARP, J., concur. . Possession of a controlled substance § 893.13(1)(e), Fla.Stat. . Possession of a controlled substance § 893.13(1)(e), Fla.Stat. . Use or possession of drug paraphernalia § 893.147(1), Fla.Stat.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Smith v. State, 566 So. 2d 57 (Fla. 5th DCA 1990)…ult, aggravated battery and attempted sexual battery) with State v. Simpson, 554 So. 2d 506 (Fla.1989) (Shaw concurring) (no escalating pattern where offenses de-escalated after initial crime, then escalated with present offenses); Jackson v. State, 556 So. 2d 813 (Fla. 5th DCA 1990) (no escalating pattern where defendant had been convicted of a non-violent third degree felony and was subsequently convicted of non-violent third degree misdemeanor); and Ramsey v. State, 562 So. 2d 394 (Fla. 5th DCA 1990) (no e…
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Ramsey v. State, 562 So. 2d 394 (Fla. 5th DCA 1990)…violent crimes or a progression of increasingly violent crimes.” 6 See State v. Simpson, 554 So. 2d 506 (Fla.1989). See also Lewis v. State, 558 So. 2d 170 (Fla. 5th DCA 1990); Johnson v. State, 558 So. 2d 1051 (Fla. 2d DCA 1990); Jackson v. State, 556 So. 2d 813 (Fla. 5th DCA 1990); Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989). The other reasons given are based on the defendant’s violation of probation and were used as a basis for a departure sentence greater than the one cell increase in the guide…
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Lipscomb v. State, 573 So. 2d 429 (Fla. 5th DCA 1991)…5th DCA 1990); Watson v. State, 558 So. 2d 1038 (Fla. 5th DCA 1990); Ricketson v. State, 558 So. 2d 119 (Fla. 5th DCA 1990); Phaneuf v. State, 557 So. 2d 685 (Fla. 5th DCA 1990); Glenn v. State, 557 So. 2d 667 (Fla. 5th DCA 1990); Jackson v. State, 556 So. 2d 813 (Fla. 5th DCA 1990); Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989). . See N. Holten and R. Handberg, Florida’s Sentencing Guidelines Surviving — but just barely, Vol. 73, No. 5 Judicature, pg. 259 (February-March 1990).…
Authorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Keys v. State, 500 So. 2d 134 (Fla. 1986)
- Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989)
- Dewberry v. State, 546 So. 2d 409 (Fla. 1989)
- Dudley Scott v. State, 550 So. 2d 111 (Fla. 4th DCA 1989)
- State v. Jimeno, 550 So. 2d 1176 (Fla. 3d DCA 1989)
- Empire Marble & Granite, Inc. v. Ralph and Lorraine Bodek, 554 So. 2d 14 (Fla. 3d DCA 1989)
- Perez v. State, 554 So. 2d 14 (Fla. 3d DCA 1989)
- Roy Ozell Banks v. State, 553 So. 2d 759 (Fla. 2d DCA 1989)
- Ecklund v. Wofford, 553 So. 2d 759 (Fla. 2d DCA 1989)