KERRY SMITH, 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 temporal proximity alone is insufficient to justify an upward departure sentence upon revocation of probation.
Defendant appealed an upward departure sentence imposed after his probation was revoked. The trial court cited the defendant's commission of multiple …
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
LEHAN, Judge.
Defendant appeals the upward departure sentence he received upon revocation of his probation. We reverse.
The trial court stated its reason for departure in its order as follows:
The defendant committed 7 robberies between 12/6/89 and 12/30/89 after being placed back on probation for robbery on 11/29/89 when he admitted violating his probation for absconding from supervision. Green v. State, 545 So. 2d 359 ([Fla.] 2d [DCA] 1989).
Although this court in Green held that temporal proximity alone could justify an upward departure, the supreme court in Barfield v. State, 594 So. 2d 259 (Fla.1992) has since made clear that temporal proximity alone is insufficient in the absence of an escalating pattern of conduct. See also Walker v. State, 593 So. 2d 301 (Fla. 2d DCA 1991) (following Barfield).
The state argues that departure was warranted because defendant’s crimes establish an escalating pattern of conduct. We do not agree because the record does not sufficiently disclose any indication of escalation, see Barfield, and in any event the trial court did not give escalation as a reason for departure.
The state also argues that under State v. Jones, 530 So. 2d 53 (Fla.1988) and State v. Simpson, 554 So. 2d 506 (Fla.1989) timing can be a valid reason for upward departure if it is accompanied by a persistent pattern of criminal activity. Again, we do not agree. While the trial court’s departure order can be read as including a persistent pattern of criminal activity as a basis for departure, under Barfield and Walker a persistent pattern is not enough; the pattern must also be escalating. Barfield observed that the habitual felony offender statute adequately addressed persistent criminal conduct. 594 So. 2d at 261.
The trial court’s sole reason for departure being invalid, we reverse and remand for resentencing within the guidelines.
Reversed and remanded.
SCHOONOVER, C.J., and PATTERSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Hernandez v. State, 660 So. 2d 1116 (Fla. 4th DCA 1995)…others. Accordingly, we vacate the departure sentence and remand to the trial court for resen-tencing within the guidelines. PARIENTE, J., concurs. SHAHOOD, J., dissents with opinion. . Abrogated on other grounds as recognized in Smith v. State, 599 So. 2d 265 (Fla. 2d DCA 1992).…
-
Tyrannus Tucker, Jr. v. State, 657 So. 2d 1219 (Fla. 5th DCA 1995)…any of the three factors outlined in Barfield v. State, 594 So. 2d 259 (Fla.1992), which show an escalating pattern of criminal conduct. Taylor v. State, 601 So. 2d 540 (Fla.1992); Glenn v. State, 623 So. 2d 596 (Fla. 5th DCA 1993); Smith v. State, 599 So. 2d 265 (Fla. 2d DCA 1992); Wilson v. State, 605 So. 2d 1021 (Fla. 5th DCA 1992). Even assuming that Tucker’s offenses were in close temporal proximity and showed a persistent pattern of criminality, the offenses are not sufficient to show an escalating pat…
-
Conners v. State, 703 So. 2d 1161 (Fla. 2d DCA 1997)…affirm his conviction without discussion, but reverse the upward departure sentence. The trial court imposed the upward departure sentence based upon its finding of a persistent pattern of criminal activity. As this court stated in Smith v. State, 599 So. 2d 265, 265 (Fla. 2d DCA 1992), “a persistent pattern is not enough; the pattern must also be escalating.” See also State v. Darrisaw, 660 So. 2d 269, 270-271 (Fla.1995); Jackson v. State, 687 So. 2d 36, 37 (Fla. 4th DCA 1997). Because the trial court’s…
Authorities Cited
- Tobias Barfield v. State, 594 So. 2d 259 (Fla. 1992)
- State v. Cledius Orlando Jones, 530 So. 2d 53 (Fla. 1988)
- State v. Vaughn R. Simpson, 554 So. 2d 506 (Fla. 1989)
- Green v. State, 545 So. 2d 359 (Fla. 2d DCA 1989)
- Harris v. State, 593 So. 2d 301 (Fla. 2d DCA 1992)