LARRY JACKSON, 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 unsupported grounds, but correctly denied the motion to withdraw the plea.
[1] A nolo contendere plea entered knowingly and voluntarily will not be permitted to be withdrawn post-sentencing.
[2] A defendant's release from county jail within six months of an offense does not justify a departure sentence under Florida Statute § 921.0016(3)(e) when the statute speci…
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Join FLexlaw to unlock all legal intelligenceAppellant pleaded nolo contendere to felony petit theft and received a departure sentence. He appealed the denial of his motion to withdraw the plea a…
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STEVENSON, Judge.
Appellant challenges the trial court’s denial of his post-sentencing motion to withdraw his plea of nolo contendere to two counts of felony petit theft, as well as his departure sentence of two consecutive five year terms of incarceration. We affirm the denial of appellant’s motion to withdraw his plea, finding that it was entered knowingly and voluntarily. However, we reverse the departure sentence and remand for resentencing in accordance with the sentencing guidelines, as neither ground relied upon for the departure is supported by the record.
The trial court relied upon two grounds for exceeding the recommended sentence of approximately one year: (1) appellant was released from prison within the six months preceding the instant offenses, see § 921.0016(3)(e), Fla.Stat. (1995); and (2) appellant’s record reflects an escalating pattern of criminal conduct, see § 921.0016(3)(p).
The instant offenses of petit theft are no more serious than any of appellant’s prior offenses; therefore, they do not reflect an “escalating” pattern of criminal conduct. See State v. Darrisaw, 660 So. 2d 269 (Fla.1995); Barfield v. State, 594 So. 2d 259 (Fla.1992); Angle v. State, 604 So. 2d 34 (Fla. 1st DCA 1992).
Departure is also not justified based on appellant’s release from jail within the six months preceding the instant crimes. While appellant had recently been released from county jail, the statute allows for departure only when the defendant was released from state prison, or discharged from a release program, within the preceding six months. § 921.0016(3)(e), Fla.Stat. (1995); see Johnson v. State, 602 So. 2d 1288 (Fla.1992) (courts must strictly construe criminal statutes, considering only those terms which are clearly described in their very words as well as those manifestly intended by the Legislature).
Because both grounds for departure are invalid, we remand for resentencing in accordance with the guidelines.
AFFIRMED IN PART; REVERSED IN PART.
GLICKSTEIN and PARIENTE, JJ., concur.
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Conners v. State, 703 So. 2d 1161 (Fla. 2d DCA 1997)…al 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 only reason for departure is invalid, we reverse and remand for resentencing within the guidelines. We remind the trial court that, if it reimposes a public defender lien, it must first advise the…
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Clark v. State, 705 So. 2d 49 (Fla. 2d DCA 1997)…ctly construed, Tomblin v. State, 616 So. 2d 1209 (Fla. 2d DCA 1993), and release from county jail is not listed in the statute as a reason for departure, release from county jail cannot be used as a basis for a departure sentence. Jackson v. State, 687 So. 2d 36 (Fla. 4th DCA 1997). Additionally, appellant’s actions do not demonstrate an escalating pattern of criminal conduct. Our supreme court has determined that section 921.001(8), Florida Statutes (1995), requires both an increase in the severity of th…
Authorities Cited
- Tobias Barfield v. State, 594 So. 2d 259 (Fla. 1992)
- State v. Darrisaw, 660 So. 2d 269 (Fla. 1995)
- Johnson v. State, 602 So. 2d 1288 (Fla. 1992)
- Angle v. State, 604 So. 2d 34 (Fla. 1st DCA 1992)