LORENZO WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lorenzo Wilson appeals his departure sentence for drug possession, arguing the trial court lacked valid grounds under Florida law to depart from sentencing guidelines. The Fifth District Court of Appeal reverses and remands for resentencing, holding that the trial court failed to meet the strict requirements established in Taylor v. State for justifying a departure based on temporal proximity of crimes.
The court reverses the departure sentence because temporal proximity alone does not justify departure under Taylor v. State; departure is only valid when there is (1) a progression from nonviolent to violent crimes, (2) a progression of increasingly violent crimes, or (3) a pattern of increasingly serious criminal activity—none of which existed in Wilson's case. The court remands for resentencing within guidelines, noting the trial court may potentially reimpose the same sentence based on probation violations and must correct the scoresheet to reflect the burglary offense as prior record rather than additional offense at conviction.
[1] Temporal proximity can only justify a departure sentence if there is a progression from nonviolent to violent crimes, a progression of increasingly violent crimes, or a p…
[2] A trial court may increase the presumptive range for violation of probation to account for both the original probationary offense and the subsequent offense that comprise…
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Join FLexlaw to unlock all legal intelligence“the Florida Supreme Court has recently reaffirmed that temporal proximity can only be a valid reason for departure if there is (1) a progression from nonviolent to violent crimes, (2) a progression of increasingly violent crimes, or (3) a pattern of increasingly serious criminal activity”
Establishes the strict legal standard for departure sentences based on temporal proximity under Taylor v. State
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Join FLexlaw to unlock all legal intelligenceWilson was convicted of unlawful possession of a controlled substance. At the time of committing the drug offense, Wilson was on probation for a burgl…
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PER CURIAM.
Lorenzo Williams appeals his departure sentence for unlawful possession of a controlled substance. We reverse and remand for resentencing within the guidelines because the Florida Supreme Court has recently reaffirmed that temporal proximity can only be a valid reason for departure if there is (1) a progression from nonviolent to violent crimes, (2) a progression of increasingly violent crimes, or (3) a pattern of increasingly serious criminal activity. Taylor v. State, 601 So. 2d 540 (Fla.1992). None of the circumstances required by Taylor to justify departure are contained in the record in this case.
It may be that upon remand the court will be able to reimpose Wilson’s 5 year sentence for unlawful possession of a controlled substance because of multiple violations of probation in Case No. 89-5390. Wilson was on probation for burglary in Case No. 89-5390 at the time he committed the primary drug offense, and both offenses were pending before the court for sentencing and were included on the same scoresheet. See Williams v. State, 594 So. 2d 273 (Fla.1992); Peters v. State, 531 So. 2d 121 (Fla.1988) (holding that the trial court may increase the presumptive range for violation of probation for both the original probationary offense as well as the subsequent offense that comprised the violation). The present record is unclear on the exact number of Wilson’s violations of probation in Case No. 89-5390, so we are unable to make this determination.
Also on remand, the trial court should correct Wilson’s sentencing guidelines scoresheet to reflect his probationary burglary offense as prior record instead of as an additional offense at conviction. See Fla.R.Crim.P. 3.701(d)(5) committee note (stating that on earlier offense for which sentence was previously suspended pursuant to the imposition of probation shall be scored as “prior record” and not as “additional offense”).
REVERSED and REMANDED for re-sentencing.
GOSHORN, C.J., and COWART, J., concur. DAUKSCH, J., concurs specially with opinion.
DAUKSCH, Judge,
concurring specially.
I concur only to the extent that appellant should be resentenced within the guidelines under a proper guidelines scoresheet.
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Citator
Cited By
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Tyrannus Tucker, Jr. v. State, 657 So. 2d 1219 (Fla. 5th DCA 1995)…ate, 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 pattern. We conclude that the trial court erred in impo…
Authorities Cited
- Williams v. State, 594 So. 2d 273 (Fla. 1992)
- Taylor v. State, 601 So. 2d 540 (Fla. 1992)
- Peters v. State, 531 So. 2d 121 (Fla. 1988)