ANTHONY DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the upward departure sentence because the record demonstrated an escalating pattern of criminal conduct, but struck a special condition of probation that was not orally pronounced.
[1] An escalating pattern of criminal conduct, for purposes of upward departure sentencing, may be established by a pattern of increasingly serious criminal activity.
[2] Increasingly serious criminal activity is indicated when the current charge involves an increase in either the degree of crime or the sentence which may be imposed, when…
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Join FLexlaw to unlock all legal intelligenceAppellant received an upward departure sentence based on an escalating pattern of criminal conduct. The state conceded that a special condition of pro…
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PER CURIAM.
We affirm the upward departure sentence on the ground that the record demonstrates an “escalating pattern of criminal conduct” within the meaning of section 921.001(8), Florida Statutes (1995). Such a pattern may be established by a “pattern of increasingly serious criminal activity.” Id. In Barfield v. State, 594 So. 2d 259, 261 (Fla.1992), the supreme court held that increasingly serious criminal activity “is indicated when the current 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.” State v. Darrisaw, 660 So. 2d 269, 271 (Fla.1995), held that a section 921.001(8) upward departure requires both an increase in the seriousness of the offenses (“escalating”) and some recurring feature of the crimes (“pattern”). The court went on to state that
[I]f 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. (Emphasis in original).
There is an “escalation” of offenses in this case. Appellant was convicted of a third degree felony in 1989, a second degree felony in 1993, and the current offense is a first degree felony. The “pattern” requirement is also met because there is a similarity of offenses; they all involved cocaine as the contraband. Additionally, the “pattern” requirement is also met by the temporal proximity of the crimes, which were committed in 1989, 1993 and 1994. See Scott v. State, 692 So. 2d 1017 (Fla. 4th DCA 1997).
As the state concedes, the special condition of probation to pay for random urinalysis must be stricken, sinee that condition was not orally pronounced at sentencing. See State v. Hart, 668 So. 2d 589 (Fla.1996).
The judgment and sentence are affirmed in all respects except that the special condition of probation requiring appellant to pay for random urinalysis is stricken.
WARNER, SHAHOOD and GROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wilson v. State, 696 So. 2d 528 (Fla. 4th DCA 1997)…essarily similar, we find that these increasingly serious crimes, committed in each of four successive calendar years, sufficiently meet the test of temporal proximity so as to establish a pattern of escalating criminal behavior. See Davis v. State, 695 So. 2d 921 (Fla. 4th DCA 1997)(finding temporal proximity where escalating offenses were committed in 1989, 1993, and 1994). Therefore, on remand, at the sentencing judge’s discretion, a departure sentence may be imposed on this basis. Affirmed in part, rever…
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Hogan v. State, 719 So. 2d 957 (Fla. 4th DCA 1998)…ate v. Darrisaw, 660 So. 2d 269, 271 (Fla.1995), the Florida Supreme Court held that a section 921.001(8) upward departure requires both an increase in the seriousness of the offenses and some recurring feature of the crime. See also Davis v. State, 695 So. 2d 921 (Fla. 4th DCA 1997). 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 c…1 / 2
Authorities Cited
- State v. Hart, 668 So. 2d 589 (Fla. 1996)
- Tobias Barfield v. State, 594 So. 2d 259 (Fla. 1992)
- State v. Darrisaw, 660 So. 2d 269 (Fla. 1995)
- Scott v. State, 692 So. 2d 1017 (Fla. 4th DCA 1997)