Barfield v. State, 88-3269
| Decision Date | 01 August 1990 |
| Docket Number | No. 88-3269,88-3269 |
| Citation | 564 So.2d 616 |
| Parties | 15 Fla. L. Weekly D1977 Tobias BARFIELD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Joseph S. Shook, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn Asbury, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant seeks review of his cocaine conspiracy to traffic and attempted trafficking convictions and sentences.
We affirm the convictions and sentences, but write to address the trial judge's upward departure from the sentencing guidelines.
As the result of a previous crime, on February 27, 1987, appellant pled guilty to trafficking in cocaine and received a two year prison sentence as a youthful offender. On January 5, 1988, he was released into a supervisory program.
The trial judge wrote the following as his basis for the upward sentence departure:
3. The substantive offenses for which the Defendant now stands convicted occurred on April 5, 1990. Since the Defendant was recently released from prison at the time he committed the substantive offense, the Court finds cause to aggravate his sentence. Furthermore, the Defendant is found to be a continuing threat to the community and appears to show absolutely no sign of rehabilitation since he has committed another Trafficking in Cocaine offense within a very short time of his release from prison.
This court in Mauney v. State, 553 So.2d 707 (Fla. 4th DCA 1989), upheld an upward departure "where only 'a short period of time' ha[d] transpired between the crime at issue and release from incarceration for some other transgression." Id. at 707 (emphasis added); citing, Lee v. State, 537 So.2d 704 (Fla. 1st DCA 1989) (other citations omitted). We note that only ninety days separated appellant's prison release and his new crime for the same transgression. Our supreme court in State v. Jones, 530 So.2d 53, 55 (Fla.1988), held that the temporal proximity of crimes can be a valid reason for departure when the timing of an offense relates to prior offenses and the release from incarceration or other supervision. Here appellant committed the same crime before and shortly after his period of incarceration and supervision.
We affirm appellant's convictions and sentences, however, we certify the following question to be of great public importance:
I concur with the result reached by the majority and the question certified concerning the adequacy of temporal proximity of crimes as the sole basis for a guidelines departure. In State v. Jones, 530 So.2d 53 (Fla.1988), the supreme court held:
Before the temporal proximity of the crimes can be considered as a valid reason for departure, it must be shown that the crimes committed demonstrate a defendant's involvement in a continuing and persistent pattern of criminal activity as evidenced by the timing of each offense in relation to prior offenses and the release from incarceration or other supervision.
State v. Jones at 56. State v. Jones seems clear in its holding that the temporal proximity of crimes may not be the basis for departure unless accompanied by a showing of a persistent pattern of criminal conduct. The First District Court of Appeals in Frederick v. State, 556 So.2d 471 (Fla. 1st DCA 1989), so held in a case involving essentially identical facts as those sub judice. In Frederick, the defendant had been convicted of possession of cocaine just seventy-eight days after being discharged from his only prior conviction. The First District quoted State v. Simpson, 554 So.2d 506 (Fla.1986), which relied upon State v. Jones,...
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