AMADOR RIVERO, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellate court vacated defendant's above-guideline sentences for cocaine delivery and drug possession because the trial judge's stated reason—temporal proximity to prior release—was insufficient to establish the required persistent pattern of criminal activity.
Temporal proximity alone between a prior offense and a new offense does not constitute a persistent pattern of criminal activity sufficient to justify departure above sentencing guidelines.
[1] Temporal proximity between release from incarceration and commission of a subsequent offense, standing alone, does not establish the persistent pattern of criminal conduc…
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Join FLexlaw to unlock all legal intelligenceRivero was convicted by jury of delivery of cocaine and possession of a controlled substance. He received concurrent 15 and 25 year sentences above th…
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W. SHARP, Judge.
Rivero appeals from his sentences imposed after a jury convicted him of delivery of cocaine,1 and possession of a controlled substance.2 He received concurrent 15 and 25 year sentences, which departed above the permitted range under the guidelines. The reason given for departure was:
Defendant released from DOC on 10/6/88 after serving 2Vh years for deliv ery of cocaine and committed this offense of delivery of cocaine on 10/29/88, less than 30 days after released.
Although this court has held that the commission of one offense shortly after release from prison may be relied upon as establishing (in part) a persistent pattern of criminal activity,3 nevertheless, the trial judge must still find a pattern of criminal conduct exists.4 Here, the trial judge merely finds temporal 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 DCA September 6, 1990).
. Dodd v. State, 570 So. 2d 1013 (Fla. 5th DCA 1990).
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Citator
Cited By
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Amador Rivero, Jr. v. State, 592 So. 2d 381 (Fla. 5th DCA 1992)…COWART, Judge. This is an appeal from a re-sentencing on remand after this court vacated the original sentence, see Rivero v. State, 573 So. 2d 427 (Fla. 5th DCA 1991). At resentencing, the trial court imposed the same departure sentences but gave additional reasons for departure. We vacate on the authority of Pope v. State, 561 So. 2d 554 (Fla.1990) and Shull v. Dugger, 515 So. 2d 748 (Fla.1…
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Lipscomb v. State, 573 So. 2d 429 (Fla. 5th DCA 1991)…and other cases relating to analogous situations, appear to require that the trial court's departure order must find and recite the specific pattern of criminal activity in order to base a departure sentence on that reason. See also Rivero v. State, 573 So. 2d 427 (Fla. 5th DCA 1991); Dodd v. State, 570 So. 2d 1013 (Fla. 5th DCA 1990); Ellis v. State, 559 So. 2d 292 (Fla. 5th DCA 1990); Chanquet v. State, 570 So. 2d 962, 963 (Fla. 3d DCA 1990) (on rehearing). . This phrase seems to describe the pattern of cr…
Authorities Cited
- Dodd v. State, 570 So. 2d 1013 (Fla. 5th DCA 1990)
- Freeman Arthur Brown v. State, 570 So. 2d 1070 (Fla. 5th DCA 1990)