STATE OF FLORIDA, PETITIONER,
v.
JAMES LEO DODD, RESPONDENT
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PER CURIAM.
We have for review Dodd v. State, 570 So. 2d 1013, 1014 (Fla. 5th DCA 1990), which certified the following question of great public importance:
IN A CASE INVOLVING THE IMPOSITION OF AN UPWARD DEPARTURE SENTENCE IN A CRIMINAL PROSECUTION FOR A NEW SUBSTANTIVE OFFENSE, DOES THE SHORT TIME INTERVAL BETWEEN COMMISSION OF THE CRIME AND RELEASE FROM PRISON PROVIDE AN ADEQUATE BASIS FOR THE DEPARTURE, EVEN THOUGH THE TRIAL JUDGE FAILS TO MAKE AN EXPLICIT FINDING THAT THE DEFENDANT HAS ENGAGED IN A PERSISTENT PATTERN OF CRIMINAL ACTIVITY?
We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Based on our opinion in Barfield v. State, 594 So. 2d 259 (Fla.1992), we answer the certified question in the negative and approve the result reached below. It is so ordered.
SHAW, C.J., and BARKETT, GRIMES, KOGAN and HARDING, JJ., concur. McDONALD, J., dissents with an opinion, in which OVERTON, J., concurs.
McDONALD, Justice,
dissenting.
I cannot agree that the upward departure from the guidelines sentence imposed by the trial judge in this case was error. Barfield v. State, 594 So. 2d 259 (Fla.1992), should be distinguished. In this ease, Dodd, within three months of being released from prison, where he was serving a sentence for second-degree murder, committed another second-degree murder. These were both cases of extreme violence.
The concept behind departures is to allow a trial judge to tailor a sentence according to additional facts not considered in the guidelines. Although past criminal record is scored, the brevity of time between the release from prison for a prior serious crime of violence and the commission of a second serious crime of violence is not considered in the guidelines. It is reasonable for a trial judge to conclude that a person committing such crimes in this time sequence constitutes a higher risk of danger to the public than other criminals and justifies a longer period of sequestration from society. We allow an upward guidelines departure when an increasing pattern of criminal activity is demonstrated. This is because these individuals also demonstrate a higher risk of danger to the public than others. I equate the two situations.
Although we held in Smith v. State, 579 So. 2d 75 (Fla.1991), and Barfield that time proximity alone is an inadequate ground for departure, I hasten to observe that Smith was a property crime; Barfield dealt with drugs, a serious offense, but not one of violence. Thus, I conclude that the temporal proximity of a crime of violence by one previously convicted of a crime of violence should be grounds for upward departure.
OVERTON, J., concurs.
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Cave v. State, 661 So. 2d 1213 (Fla. 1995)…site pattern existed notwithstanding the failure of the trial court to make the precise finding. Accord Gordon,' v. State, 594 So. 2d 262 (Fla. 1992). The confusion suggested by the certified question apparently has arisen because of State v. Dodd, 594 So. 2d 263 (Fla.1992), which issued contemporaneously with Bar-field. There, we approved the reversal of a departure sentence based on the rationale of Barfield. However, in Dodd both the prior offense and the present offense were of the same degree. In other…
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Cave v. State, 642 So. 2d 10 (Fla. 1st DCA 1994)…ee felony. Appellant’s prior record included a conviction for an unspecified third-degree felony and four misdemeanor convictions. We therefore affirm appellant’s departure sentence based on an escalating pattern of criminal conduct. State v. Dodd, 594 So. 2d 263 (Fla.1992), relied on by appellant, is distinguishable because the court, on appeal, found that the record did not support the alternative ground for departure in that case. The trial court’s written reason for departure, reported in Dodd v. State,…1 / 2
Authorities Cited
- Tobias Barfield v. State, 594 So. 2d 259 (Fla. 1992)
- In re Standard Jury Instructions Crim. Cases-No. 90-1, 579 So. 2d 75 (Fla. 1990)
- Dodd v. State, 570 So. 2d 1013 (Fla. 5th DCA 1990)