NATHAN TESSIER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in imposing upward departure sentences based on an escalating pattern of criminal conduct, as the defendant's history did not demonstrate such a pattern.
Nathan Tessier appealed sentences imposed for 12 offenses, including two for violating probation. The trial court imposed departure sentences for burg…
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THOMPSON, J.
Nathan Tessier appeals the sentences imposed for 12 offenses to which he pled either guilty or nolo contendere. Two of the sentences were imposed after Tessier violated his probation. We affirm the VOP sentences as Tessier failed to properly preserve the asserted error for appeal. See Fla. R.App. P. 9.140(d); § 924.051(3), Fla. Stat. (1997); Maddox v, State, 708 So. 2d 617 (Fla. 5th DCA), rev. granted, 718 So. 2d 169 (Fla.1998).
The trial court imposed departure sentences of five years in prison for the two counts of burglary of a conveyance (case numbers 97-14287 and 97-14686). The reason the court gave for the upward departures was Tessier’s escalating pattern of criminal conduct. Such a pattern is demonstrated by (1) a progression from nonviolent to violent crimes, (2) a progression of increasingly violent crimes, or (3) a pattern of increasingly serious criminal activity. § 921.001(8), Fla. Stat. (1997); Barfield v. State, 594 So. 2d 259 (Fla.1992). Tessier’s criminal history includes, in chronological order: grand theft motor vehicle; dealing in stolen property; carrying a concealed firearm; resisting arrest without violence; forgery; uttering a forgery; resisting arrest with violence; burglary of a conveyance; petit theft. While Tessier displays a pattern of criminal conduct, it is not an escalating pattern. The trial court therefore erred in imposing the departure sentences for burglary of a conveyance. See State v. Darrisaw, 660 So. 2d 269 (Fla.1995); Taylor v. State, 601 So. 2d 540 (Fla.1992); Barfield; Smith v. State, 579 So. 2d 75 (Fla.1991).
Accordingly, we vacate the five-year prison sentences in case numbers 97-14287 and 97-14686 and remand for resentencing within the guidelines. The remaining sentences on appeal are affirmed.
AFFIRMED in part; VACATED in part and REMANDED with directions.
W. SHARP and PETERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ewell v. State, 852 So. 2d 436 (Fla. 5th DCA 2003)…ed to re-sentence Ewell within the guidelines but this court denied her motion to relinquish jurisdiction. We agree with Ewell and the trial court. Her prior record did not constitute an escalating pattern of criminal conduct. See Tessier v. State, 730 So. 2d 761 (Fla. 5th DCA 1999). Such a pattern is demonstrated by (1) a progression from nonviolent to violent crimes, (2) a progression of increasingly violent crimes, or (3) a pattern of increasingly serious criminal activity. Id. Like the defendant’s record…
Authorities Cited
- Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)
- Tobias Barfield v. State, 594 So. 2d 259 (Fla. 1992)
- State v. Darrisaw, 660 So. 2d 269 (Fla. 1995)
- Taylor v. State, 601 So. 2d 540 (Fla. 1992)
- In re Standard Jury Instructions Crim. Cases-No. 90-1, 579 So. 2d 75 (Fla. 1990)