JOHN TIMOTHY LOWE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court improperly departed from sentencing guidelines based on an escalating pattern of criminality and emotional trauma to victims.
Defendant was sentenced for armed robbery with a departure from sentencing guidelines. The offenses occurred within a three-week period and were of th…
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PER CURIAM.
We reverse defendant’s sentences for armed robbery because we conclude that the trial court improperly departed from the guidelines. We conclude that the reasons given, escalating pattern of criminality, and emotional psychological trauma inflicted on the victims, were not supported by the facts.
All of the offenses were committed within a three week period, and they were all of the same character — robbery with a firearm. The commission of a violent crime following a violent crime of the same nature is not an escalating pattern. Lattimore v. State, 571 So. 2d 99 (Fla. 3rd DCA 1990). The court thus erred in basing the departure on “escalating pattern”. See also, Barfield v. State, 594 So. 2d 259 (Fla.1992).
Nor do we agree that there was sufficient emotional trauma to the victims to justify a departure sentence. Although all of the victims here did have some after-effects of the robbery, none of them suffered beyond what is inherent in being a victim of a crime such as this, so as to justify a departure based on emotional trauma. State v. Simpson, 554 So. 2d 506 (Fla.1989), receded from in part on other grounds, Barfield v. State, 594 So. 2d 259 (Fla.1992).
We therefore reverse and remand for the defendant to be sentenced within the guidelines.
POLEN and KLEIN, JJ., and GROSS, ROBERT M., Associate Judge, concur.
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Tyrannus Tucker, Jr. v. State, 657 So. 2d 1219 (Fla. 5th DCA 1995)…usness. Tucker’s prior crimes were third degree felonies and one misdemeanor. The current crime for which Tucker is being sentenced is a third degree felony. This is not sufficient to show “increasingly serious” criminal activity. See Lowe v. State, 641 So. 2d 937 (Fla. 4th DCA 1994) (crimes that were of the same character — robbery with a firearm — did not show an escalating pattern sufficient to support departure); Smith v. State, 603 So. 2d 95 (Fla. 2d DCA 1992) (no escalating pattern is reflected by the d…
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Smith v. State, 710 So. 2d 753 (Fla. 4th DCA 1998)…to the victim’s inability to kiss his son in the future was harmless, nonprejudicial error. Finally, we find no abuse of discretion in the trial court’s imposition of a departure sentence. See § 921.0016(3)(1), Fla. Stat. (1997); cf., Lowe v. State, 641 So. 2d 937 (Fla. 4th DCA 1994). STONE, C.J., GROSS, J., and DAKAN, STEPHEN L., Associate Judge, concur.…
Authorities Cited
- Tobias Barfield v. State, 594 So. 2d 259 (Fla. 1992)
- State v. Vaughn R. Simpson, 554 So. 2d 506 (Fla. 1989)
- Lattimore v. State, 571 So. 2d 99 (Fla. 3d DCA 1990)