CLINTON MCKINNEY, APPELLANTS,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed conviction for cocaine possession with intent to sell but reversed sentence, holding that recent release from prison alone does not justify departure from sentencing guidelines without evidence of a continuing pattern of criminal activity.
Recent release from prison does not justify departure from sentencing guidelines absent evidence of a continuing and persistent pattern of criminal activity.
[1] Recent release from incarceration does not alone justify departure from sentencing guidelines; a continuing and persistent pattern of criminal activity must be demonstrat…
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Join FLexlaw to unlock all legal intelligence“the crimes committed demonstrate a defendant's involvement in a continuing and persistent pattern of criminal activity as evidenced by the timing of each offense in relation to prior offenses and the release from incarceration”
Standard from State v. Jones requiring persistent pattern for sentencing departure based on timing of offenses
Clinton McKinney was convicted of possession of cocaine with intent to sell. He was released from prison approximately six months before committing th…
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PER CURIAM.
Clinton McKinney appeals from a judgment of conviction and sentence for possession of cocaine with intent to sell.
We affirm the conviction but reverse the sentence imposed and remand for resentencing within the recommended guidelines. The state has properly conceded that the record does not support a finding of an escalating pattern of criminal conduct.
Furthermore, contrary to the state’s position, the record does not support the trial court’s finding that defendant’s “recent release from prison” justifies a departure from the sentencing guidelines. The timing of offenses “in relation to prior offenses and release from incarceration or supervision are aspects of a defendant’s prior criminal history” and may form the basis for a departure sentence. Williams v. State, 504 So. 2d 392, 393 (Fla.1987).
However, temporal proximity supports such a departure only when there is a showing that “the crimes committed demonstrate a defendant’s involvement in a continuing and persistent pattern of criminal activity as evidenced by the timing of each offense in relation to prior offenses and the release from incarceration.” State v. Jones, 530 So. 2d 53, 56 (Fla.1988). Here, defendant’s release from prison approximately six months before committing the offense for which he was sentenced does not establish the persistent pattern required by Jones. Affirmed in part; reversed in part; remanded with instructions.
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Davis v. State, 560 So. 2d 1231 (Fla. 5th DCA 1990)…f cocaine. We acknowledge conflict with V.A.A. v. State, 561 So. 2d 314 (Fla. 2d DCA 1990) AFFIRMED. PETERSON, J., concurs. COWART, J., dissents with opinion. . Neither Roberts v. State, 557 So. 2d 685 (Fla. 5th DCA 1990) nor McKinney v. State, 559 So. 2d 621 (Fla. 3d DCA 1990) are applicable to this case because those offenses occurred prior to the effective date of the amendment to section 775.021(4) Florida Statutes. . Fifth Amendment, United States Constitution: "... nor shall any person be subject…
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Brown v. State, 580 So. 2d 340 (Fla. 2d DCA 1991)…in time will support a departure, which is the same as saying that temporal proximity alone will support a departure. However, the First District in Frederick v. State, 556 So. 2d 471 (Fla. 1st DCA 1990) and the Third District in McKinney v. State, 559 So. 2d 621 (Fla. 3d DCA 1990) have held that two offenses do not establish a pattern of persistent and continuing criminal activity. Contra Lipscomb v. State, 573 So. 2d 429 (Fla. 5th DCA 1991) (two similar offenses establish a pattern of criminal behavior).…
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Lamoru v. State, 588 So. 2d 686 (Fla. 3d DCA 1991)…d that a temporal proximity of offenses will support a departure sentence only where there is a showing that the crimes committed demonstrate the defendant’s involvement in a continuing and persistent pattern of criminal activity. McKinney v. State, 559 So. 2d 621 (Fla. 3d DCA 1990), relying on State v. Jones, 530 So. 2d 53 (Fla.1988). This view is consistent with the recent decision in Smith v. State, 579 So. 2d 75 (Fla.1991), which held, “one successive criminal episode of no greater significance than the f…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- State v. Cledius Orlando Jones, 530 So. 2d 53 (Fla. 1988)