MILTON JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that a persistent pattern of criminal activity, closely related in time but not escalating, is not a valid reason for departing from sentencing guidelines.
Appellant was convicted of possession of cocaine with intent to sell and sentenced as a habitual offender. On remand, the trial court departed from se…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Continuing And Persistent Pattern Of Criminal Activity cases and more on FLexlaw
[original opinion at 558 So. 2d 131]
SHIVERS, Judge.
Appellant moves for rehearing of this case in light of the supreme court’s recent decision in Smith v. State, 579 So. 2d 75 (Fla.1991). Appellant’s motion is granted, the per curiam affirmance filed on May 20, 1990, is withdrawn, and the following opinion and decision is substituted therefor. Appellant, Milton Jones, was originally convicted by jury of possession of cocaine with intent to sell, was found to be a habitual offender, and was sentenced outside the recommended guideline range to ten years incarceration. His conviction was affirmed on appeal, but his sentence was reversed, this court specifically holding that the trial court could depart on remand from the recommended guideline sentence, based on clear and convincing reasons. Jones v. State, 558 So. 2d 131 (Fla. 1st DCA 1990). On remand, the trial court again imposed a sentence of ten years incarceration, based on three reasons for departure: (1) appellant’s unwillingness or inability to be rehabilitated; (2) appellant’s disregard for the law; and (3) the timing of the instant offenses in relation to sentencing on previous drug offenses. We find all three reasons to be invalid.
The first reason — unamenability to rehabilitation — has been found to be an invalid reason for departure. Sellers v. State, 559 So. 2d 378 (Fla. 2d DCA 1990); Ellis v. State, 559 So. 2d 292 (Fla. 5th DCA 1990); and Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989). The second reason— disrespect or disregard for the law, standing alone — has also been found to be an invalid basis for departure, as an inherent component of every criminal offense. Brown v. State, 569 So. 2d 1223 (Fla.1990).
The third reason — timing of the instant offense — is also invalid in light of the supreme court’s holding in Smith v. State, supra. In the instant case, the record indicates that appellant was sentenced in May 1987 to five years probation on two charges of possession of cocaine, one charge of possession of marijuana with intent to distribute, and one charge of possession of drug paraphernalia. In June 1988, he was sentenced to another five years probation for one charge of possession of a controlled substance. In August of 1988, appellant was arrested and charged with the offense involved in the instant case, 35 days after being placed on probation for the June 1988 offenses, and one year and three months after being placed on probation for the May 1987 offenses. The record thus indicates a continuing and persistent pattern of criminal activity by the appellant, but not an escalating pattern. Although the supreme court has previously held that sentencing guideline departures could be based on timing and either an escalating pattern or a continuing and persistent pattern of criminal activity, State v. Simpson, 554 So. 2d 506 (Fla.1989); State v. Jones, 530 So. 2d 53 (Fla.1988), the court has apparently receded from those holdings in State v. Smith, in which it answered in the negative the following certified question:
MAY A TRIAL JUDGE IMPOSE A DEPARTURE SENTENCE BASED SOLELY ON A PERSISTENT PATTERN OF CRIMINAL ACTIVITY, CLOSELY RELATED IN TIME, ALTHOUGH THE PATTERN IS NOT ESCALATING TOWARD MORE VIOLENT OR SERIOUS CRIMES?
579 So. 2d at 76. We therefore find the third reason for departure to be invalid as well. Appellant’s sentence is reversed, and the case remanded for resentencing within the sentencing guidelines recommendation.
REVERSED and REMANDED.
WIGGINTON and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Ribas v. State, 606 So. 2d 1278 (Fla. 2d DCA 1992)…08 So. 2d 89 (Fla. 2d DCA 1992); Sellers v. State, 559 So. 2d 378 (Fla. 2d DCA 1990); Coleman v. State, 515 So. 2d 313 (Fla. 2d DCA 1987), review denied, 523 So. 2d 576 (Fla.1988); Lindsey v. State, 453 So. 2d 485 (Fla. 2d DCA 1984); Jones v. State, 583 So. 2d 387 (Fla. 1st DCA 1991). Accordingly, we affirm the appellant’s convictions but reverse his upward departure sentence and remand for resentencing within the recommended guidelines range. Brady v. State, 587 So. 2d 617 (Fla. 2d DCA 1991). CAMPBELL an…
-
Smith v. State, 608 So. 2d 89 (Fla. 2d DCA 1992)…by the new rules concerning departures in cases of multiple violations of probation. Williams v. State, 594 So. 2d 273 (Fla.1992). Thus, lack of amenability to rehabilitation standing alone is no longer a valid reason for departure. Jones v. State, 583 So. 2d 387 (Fla. 1st DCA 1991); Sellers v. State, 559 So. 2d 378 (Fla. 2d DCA 1990). A continuing or persistent pattern of criminal activity when coupled with an escalating or violent progression of offenses can be a valid reason to depart. Barfield v. State…
-
Moore v. State, 584 So. 2d 130 (Fla. 1st DCA 1991)…no basis in the record for concluding that there is an improbable likelihood of future rehabilitation. Therefore, we find this basis for departure to be invalid as well. See Simmons v. State, 570 So. 2d 1383 (Fla. 5th DCA 1990), and Jones v. State, 583 So. 2d 387 (Fla. 1st DCA 1991). The timing of the possession offenses in relation to the imposition of probation in Sarasota County is also an invalid basis for departure in view of the supreme court’s recent holding in Smith v. State, 579 So. 2d 75 (Fla.1991…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Cledius Orlando Jones, 530 So. 2d 53 (Fla. 1988)
- State v. Vaughn R. Simpson, 554 So. 2d 506 (Fla. 1989)
- Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989)
- In re Standard Jury Instructions Crim. Cases-No. 90-1, 579 So. 2d 75 (Fla. 1990)
- Sellers v. State, 559 So. 2d 378 (Fla. 2d DCA 1990)
- Brown v. State, 569 So. 2d 1223 (Fla. 1990)
- Ellis v. State, 559 So. 2d 292 (Fla. 5th DCA 1990)
- Jones v. State, 558 So. 2d 131 (Fla. 1st DCA 1990)