DONNIE GLENN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donnie Glenn appeals his probation violation sentence, challenging the trial court's departure from sentencing guidelines. The appellate court found both reasons for departure—temporal proximity to release and continuing criminal activity—legally insufficient under Bayfield v. State, and reversed the sentence for resentencing within the guidelines.
The departure was improper because temporal proximity alone is insufficient to justify guidelines departure, and the pattern of drug sales followed by drug possession does not constitute the escalating pattern of criminal conduct required by Bayfield v. State. Both reasons for departure are therefore legally insufficient.
[1] Temporal proximity alone does not constitute a clear and convincing reason to depart from sentencing guidelines.
[2] A departure from sentencing guidelines is permissible when a defendant's prior record and present criminal offense indicate an escalating pattern of criminal conduct.
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Join FLexlaw to unlock all legal intelligence“temporal proximity alone does not constitute a clear and convincing reason to depart from the guidelines”
Establishes the legal standard that mere timing of the new offense cannot justify departure, overriding the trial court's first basis for departure
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Join FLexlaw to unlock all legal intelligenceGlenn was initially sentenced to 7 years imprisonment plus concurrent probation terms for drug sales. While on probation, he was arrested for unlawful…
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DAUKSCH, Judge.
Appellant, Donnie Glenn, timely appeals a sentence imposed following a violation of his probation. He specifically challenges the trial court’s reasons for departing from the sentencing guidelines.
The record shows that appellant was charged by information with four counts of unlawful sale or delivery of a controlled substance. He entered a written plea of guilty to the offenses. The trial court sentenced him to a term of 7 years incarceration for count I to be followed by three concurrent 10-year terms of probation for counts II, III and V. [Count IV of the charging document pertained to a second defendant].
Appellant later violated his probation to which he entered a plea of nolo contendere. He was then charged with unlawfully possessing a controlled substance on June 5, 1992, less than three months after his release from prison. His sentencing guidelines seoresheet totalled 211 points yielding a recommended sentence of 9-12 years and a permitted sentence of 7-17 years. With the one cell bump-up for the violation of probation his recommended sentence was 12-17 years with a permitted range of 9-22 years.
The trial court adjudicated appellant guilty of violating his probation and sentenced him to serve a term of 15 years for count II, 5 years for count III and 5 years for count V [for the underlying sale and delivery offenses]. The sentences for counts III and V were consecutive to the sentence in count II. The court also imposed a 5-year term of incarceration for the current possession offense to be served consecutive to the sentence imposed for count II in the underlying case. The court departed from the sentencing guidelines based upon appellant’s proximity to release from prison and upon his continuing persistent criminal activity. Appellant contends that both of the court’s reasons for departure are improper. We agree.
In Bayfield v. State, 594 So. 2d 259 (Fla.1992), the supreme court held first, that temporal proximity alone does not constitute a clear and convincing reason to depart from the guidelines and second, that a departure is permissible where the defendant’s prior rec ord and the present criminal offense for which he is being sentenced indicate an escalating pattern of criminal conduct. The escalating pattern of criminal conduct may be shown in any of the following three ways: 1) a progression from nonviolent to violent crimes; 2) a progression of increasingly violent crimes; or 3) a pattern of increasingly serious criminal activity. This latter category is indicated when the present charge involves an increase in either the degree of crime or the sentence which may be imposed when compared with the defendant’s previous offenses. Id. at 261.
In the present case appellant’s unlawful sale or delivery of a controlled substance followed by possession of a controlled substance does not show a pattern of increasingly serious criminal activity as defined by the supreme court in Barfield. Moreover, temporal proximity, standing alone, is an insufficient reason to depart from the guidelines. Both of the trial court’s reasons for departure in the present case are therefore insufficient. Appellant’s sentence is reversed and the cause remanded for resentencing within the guidelines.
SENTENCE VACATED; REMANDED for resentencing.
COBB and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Zellars v. State, 707 So. 2d 345 (Fla. 5th DCA 1998)…k that the record supports the reasons given by the trial judge for an upward departure sentence. Zellars’ prior conviction for aggravated battery, coupled with this offense, does not create an escalating pattern of criminal conduct. Glenn v. State, 623 So. 2d 596 (Fla. 5th DCA 1993); Browning v. State, 625 So. 2d 960 (Fla. 5th DCA 1993). Further, the record fails to establish the times Zellars committed other prior offenses (grand theft auto and unlawful possession of a controlled substance — both non-violen…
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Donnie Glenn v. State, 639 So. 2d 1036 (Fla. 5th DCA 1994)…and upon his continuing persistent criminal activity. Appellant appealed the departure sentence maintaining that the trial court’s reasons for departure were improper. This court agreed and remanded the case for resentencing within the guidelines. 623 So. 2d 596. A resentencing hearing was held on October 14, 1993. The parties agreed that appellant’s sentencing guidelines scoresheet to-talled 192 points. With a one cell bump-up for violation of probation, appellant’s permitted sentence was 7 to 17 years in…
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Tyrannus Tucker, Jr. v. State, 657 So. 2d 1219 (Fla. 5th DCA 1995)…a basis for departure when found in conjunction with 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 o…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tobias Barfield v. State, 594 So. 2d 259 (Fla. 1992)