NOEL LAMORU, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1991-11-12
No. 89-250
Before FERGUSON, COPE and GERSTEN, JJ.
588 So. 2d 686 Florida District Court of Appeal, Third District (1991) Caution
Cited by 2 cases

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.

Synopsis

Noel Lamoru appealed his sentencing for burglary and cannabis possession, challenging a 15-year sentence that departed from the 3-year guideline range. The court held that committing a burglary four to nine months after release from prison for a similar offense does not constitute a continuing and persistent pattern of criminal activity justifying sentence enhancement under the temporal proximity doctrine.


Holding

The court held that temporal proximity alone does not justify sentence departure under the temporal proximity doctrine unless the crimes demonstrate the defendant's involvement in a continuing and persistent pattern of criminal activity. Because the instant offense was of no greater significance than the earlier burglary episode, the departure sentence could not be sustained.


Headnotes

[1] A departure sentence based on temporal proximity of offenses requires a showing that the crimes demonstrate a continuing and persistent pattern of criminal activity.

[2] A single successive criminal episode, even if committed shortly after release from incarceration, is not a sufficient reason to depart from sentencing guidelines.

Previewing 2 of 3 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

Key Quotes

“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”

Establishes the legal standard for when temporal proximity can justify sentence enhancement

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

In July 1988, Lamoru was arrested for burglary of a dwelling and unlawful possession of cannabis. At sentencing, the trial court learned that Lamoru h…

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.


Opinion of the Court
PER CURIAM.

PER CURIAM.

In July 1988 Lamoru was arrested for burglary of a dwelling and unlawful possession of cannabis, charges on which he was subsequently convicted. At the sentencing hearing it was brought to the trial court’s attention that the defendant had previously been convicted for two counts of burglary of a dwelling. Those crimes occurred in October 1987. For the 1987 burglaries the defendant was sentenced to 364 days. The date of defendant’s release from the earlier incarceration is not in the record. The trial court wrote that the July 1988 burglary occurred four to five months after defendant’s release from prison but the defendant argues that it could have been as long as nine months after his release.

The day after the sentencing hearing, the court filed a written order deviating from the guideline sentence of three years and ordering incarceration for fifteen years. The reasons for departure were “(1) previous felony convictions in 1987 (2 convictions), 2) recent release from prison at the time of the crime (4-5 five months previous).”

The single issue of merit is whether the commission of a burglary offense four to nine months after release from prison for a similar offense constitutes a continuing and persistent pattern of criminal activity so as to justify an enhanced sentence under a theory of “temporal proximity” of offenses. We hold that it does not and reverse the sentence enhancement.

We have held 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 first, even though committed only thirty days after release from incarceration, is not a sufficient reason to depart from the guidelines.” Id. at 77. Without reaching the question whether the instant offense was in temporal proximity to the date of release from prison, we hold that the departure sentence cannot be sustained because the instant offense was of no greater significance than the earlier episode.

The conviction is affirmed, the enhanced part of the sentence is reversed, and the case is remanded with instructions to sentence the defendant within the guidelines.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • De Leon v. State, 592 So. 2d 1244 (Fla. 3d DCA 1992)
    …an the two-cell departure be sustained on a “temporal proximity” theory — which permits a greater departure where offenses are close in time — because the subsequent offenses were of no greater significance than the earlier episode. Lamoru v. State, 588 So. 2d 686 (Fla. 3d DCA 1991). The cause should be remanded for resen-tencing to a term which does not exceed a one-cell enhancement.…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw