FREEMAN ARTHUR BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brown appealed two consecutive 5-year sentences for possession of cocaine, arguing they exceeded guideline recommendations. The court agreed that the sentences departed impermissibly from guidelines and vacated them, requiring resentencing with clearer findings regarding the departure reason.
The sentences were improper departures from guideline ranges that lacked adequate written explanation. The trial judge must clarify on remand whether a continuing and persistent pattern of criminal activity justified the departure, as mere temporal proximity between offenses does not alone authorize such a departure without express findings.
[1] A trial court may depart from sentencing guidelines when offenses are committed in close temporal proximity, as this can indicate a continuing and persistent pattern of c…
[2] A trial court must make an express finding of a continuing and persistent pattern of criminal activity to justify a departure from sentencing guidelines based on the temp…
Previewing 2 of 4 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“The commission of offenses in close temporal proximity can be utilized to find a continuing and persistent pattern of criminal activity, which is a valid reason to depart from the guidelines.”
Establishes that temporal proximity between offenses may justify departure from sentencing guidelines, but only if it supports a finding of continuing and persistent criminal activity.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBrown committed a first cocaine possession offense in March 1988, pleaded nolo contendere, and received a 5-year probationary sentence. Only 12 days a…
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W. SHARP, Judge.
Brown appeals from two consecutive 5 year sentences he received for two possession of cocaine offenses.1 He argues he received terms of imprisonment which exceed those allowed under the guidelines.2 We agree and quash the sentences.
Brown committed the first offense in March of 1988. He pled nolo contendere and received a 5 year probationary sentence. Only 12 days after being released on probation in 1989, Brown was arrested for the second possession of cocaine offense. He admitted violating his probation and he pled nolo to the second possession charge.
The trial judge sentenced Brown for both offenses. The combined scoresheet included points for “legal constraint.” It placed Brown in the community control or 12 to 30 months incarceration bracket. The trial judge imposed a sentence which departed beyond the recommended range bump-up authorized for a violation of probation (2Va to 3V2 years) and even exceeded the permitted range bump-up (community control of 1 to 4V2 years incarceration).
The trial judge gave as his reason for the departure the short interval of time (12 days) between Brown’s release from jail and his commission of the second offense. He wrote:
Defendant was released from jail on January 20, 1989 having served 51 weeks on a charge of possession of cocaine. He was released to probation. Twelve days later, February 1, 1989 he was arrested for possession of 2.9 grams of cocaine.
The commission of offenses in close temporal proximity can be utilized to find a continuing and persistent pattern of criminal activity, which is a valid reason to depart from the guidelines. Smith v. State, 566 So. 2d 57 (Fla. 5th DCA 1990). See also State v. Simpson, 554 So. 2d 506 (Fla.1989); Jones v. State, 553 So. 2d 702 (Fla.1989); State v. Jones, 530 So. 2d 53 (Fla.1988); Tillman v. State, 525 So. 2d 862 (Fla.1988). However, here the trial judge made no express finding of a continuing and persistent pattern — he merely found that the offenses were committed close in time.
We surmise the trial judge, in reciting the above facts, found a continuing and persistent pattern of criminality as the reason for departure. However, we cannot assume this was his intention. Florida Rule of Criminal Procedure 3.701 requires a written statement delineating the reasons for departure. To facilitate review, the better practice is to identify the ground for departure as well as reciting the essential ultimate facts upon which it is based. Accordingly, we remand to the trial judge to clarify his departure reason by identifying the specific ground upon which he is relying.
Accordingly, we vacate the sentence and remand for resentencing consistent with this opinion.
SENTENCE VACATED; REMANDED for resentencing.
PETERSON and GRIFFIN, JJ„ concur. . § 893.13(l)(f), Fla.Stat. (1989).
. Fla.R.Crim.P. 3.701.
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Amador Rivero, Jr. v. State, 573 So. 2d 427 (Fla. 5th DCA 1991)…al proximity of the two offenses. That is not enough to constitute a “persistent pattern.” Because we cannot assume that the trial judge found a persistent pattern, we vacate the sentence and remand for the purposes of clarification. Brown v. State, 570 So. 2d 1070 (Fla. 5th DCA 1990). VACATE SENTENCE; REMAND. GRIFFIN, J., concurs. GOSHORN, J., dissents without opinion. . § 893.13(l)(a)(l), Fla.Stat. (1987). . § 893.03(2)(a), Fla.Stat. (1987). . Lipscomb v. State, 15 F.L.W. 2227, 1990 WL 127340 (Fla. 5th…
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Amador Rivero, Jr. v. State, 592 So. 2d 381 (Fla. 5th DCA 1992)…ns that upon resentencing this time [*382] that the trial court impose a sentence within the guidelines.1 SENTENCES VACATED; CAUSE REMANDED. GOSHORN, C.J., and DAUKSCH, J., concur. . The language of the opinions in Rivero and Brown v. State, 570 So. 2d 1070 (Fla. 5th DCA 1990) should not be read to be inconsistent with Pope and Shull.…
Authorities Cited
- State v. Cledius Orlando Jones, 530 So. 2d 53 (Fla. 1988)
- State v. Vaughn R. Simpson, 554 So. 2d 506 (Fla. 1989)
- Tillman v. State, 525 So. 2d 862 (Fla. 1988)
- Stingray Jones v. State, 553 So. 2d 702 (Fla. 1989)
- Smith v. State, 566 So. 2d 57 (Fla. 5th DCA 1990)