ROBERT LORENZANA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in departing from sentencing guidelines based on an escalating pattern of criminal conduct when the prior offenses were not similar to the instant violent offense.
Appellant was convicted of attempted second-degree murder with a firearm. The trial court departed from sentencing guidelines, finding an escalating p…
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PER CURIAM.
We affirm the points raised by appellant relating to his conviction, but reverse and remand for resentencing as the trial court erred in basing a departure sentence on an escalating pattern of criminal conduct where no pattern was shown. Appellant was convicted of attempted second degree murder with a firearm. The trial court departed from the guidelines sentencing range based on section 921.001(8), Florida Statutes (1993).
In State v. Darrisaw, 660 So. 2d 269 (Fla.1995), the supreme court explained:
Section 921.001(8) speaks in terms of both an increase in the offenses (“escalating”) and some recurring feature of the offenses (“pattern”). If the offenses meet the definition of “escalating,” then the “pattern” requirement can be satisfied either where the offenses are committed in temporal proximity or where there is a similarity of offenses.
Id. at 271. Because appellant’s previous crimes were nonviolent and the instant offense was violent, the trial court found that appellant evidenced a progression from nonviolent to violent crimes and therefore concluded that there was an escalating pattern of criminal conduct. The trial court determined that appellant’s previous crimes “stretched out” and that these crimes could not be considered temporally proximate so as to be a basis for departure. However, the court did not make any findings as to similarity of offenses.
The prior offenses relied upon by the state to show an escalating pattern of criminal conduct are not similar to the instant offense. They consist of convictions for various property crimes, a drug conviction, and a conviction for carrying a concealed weapon. We conclude that appellant’s conduct does not fit the “pattern” requirement of section 921.001(8). See Darrisaw, 660 So. 2d at 271; Smith v. State, 678 So. 2d 1374, 1376 (Fla. 4th DCA 1996). We therefore reverse and remand for resentencing within the guidelines.
STONE, WARNER and STEVENSON, JJ., concur.
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Hogan v. State, 719 So. 2d 957 (Fla. 4th DCA 1998)…imes were neither temporally related nor similar in nature. See id. at 271. [*960] In upholding appellant’s upward departure sentence, we recognize this court’s decisions in Smith v. State, 678 So. 2d 1374 (Fla. 4th DCA 1996) and Lorenzana v. State, 685 So. 2d 978 (Fla. 4th DCA 1997), which reversed appellants’ upward departure sentences. In Smith, we held that while the “escalating” requirement had been satisfied, the “pattern” requirement had not. 678 So. 2d at 1376. In that case, we held that appellant’s…1 / 2
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Tarus Edward Harvey v. State, 954 So. 2d 101 (Fla. 2d DCA 2007)…violent crime. Nevertheless, the 1992 offenses were too remote and the temporal relationship of the other offenses to this charge was not clearly established. Nor can it be said that the crimes were similar in nature. See, e.g., Lorenzana v. State, 685 So. 2d 978 (Fla. 4th DCA 1997). The State’s proof failed to establish a pattern of escalating criminal conduct, and the trial court abused its discretion in so finding. Accordingly, we vacate Mr. Harvey’s sentence and remand for resentencing within the guidel…
Authorities Cited
- State v. Darrisaw, 660 So. 2d 269 (Fla. 1995)
- Smith v. State, 678 So. 2d 1374 (Fla. 4th DCA 1996)