Brier v. State, 85-1515
| Decision Date | 03 April 1987 |
| Docket Number | No. 85-1515,85-1515 |
| Citation | 12 Fla. L. Weekly 928,504 So.2d 809 |
| Parties | 12 Fla. L. Weekly 928 Jeffrey Alan BRIER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender and Joseph Eugene Perrin, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Lauren Hafner Sewell, Asst. Atty. Gen., Tampa, for appellee.
Appellant appeals his judgment and sentences for two counts of sexual battery, two counts of grand theft, and one count of burglary--all arising out of one criminal episode. His presumptive guidelines sentence of nine to twelve years was enhanced to a seventeen-year prison term on one of the sexual battery counts and concurrent terms ranging from fifteen down to five years on the other counts. Appellant contends that both reasons given by the trial court to justify its departure sentence were improper. We agree in part and reverse for resentencing.
The first reason given for the departure sentence was based on a finding that appellant met the criteria of an habitual offender pursuant to section 775.084, Florida Statutes (1985). Our supreme court has held that a trial court may not depart from the guidelines for that reason. Whitehead v. State, 498 So.2d 863 (Fla.1986).
The second reason given was that, based on his prior record, appellant's crimes were becoming more violent. The record reveals that prior to the instant charges, appellant was adjudicated a juvenile delinquent in 1974 based on two counts of breaking and entering, and that his adult convictions include a 1979 petit theft, a 1979 burglary of a conveyance, another petit theft in 1982, and a 1983 trespass of an occupied structure. Juxtaposing these convictions with the instant convictions of two counts of grand theft, a burglary, and two counts of sexual battery, we find that this progression meets the standard of an escalating pattern of criminal conduct. Appellant has graduated from crimes against property to violent crimes against persons. The supreme court has recently addressed this issue and determined that such an escalation is a clear and convincing reason to support departure. Keys v. State, 500 So.2d 134 (Fla.1986). 1
The state has not met its burden of showing beyond a reasonable doubt that the departure sentence would have been imposed absent the first reason, which we find is improper. Therefore, pursuant to Albritton v. State, 476 So.2d 158 (Fla.1985), we reverse the sentence and remand for resentencing. Wade v. State, 482 So.2d 346 (Fla.1986).
The judgment is affirmed; the sentences are reversed and remanded for resentencing.
1 We note that the trial court's departure reason could also have been affirmed on the basis that...
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...Williams; Keys v. State, 500 So.2d 134 (Fla.1986); McGriff v. State, 528 So.2d 396 (Fla. 3d DCA 1988); Musgrove; Brier v. State, 504 So.2d 809 (Fla. 2d DCA 1987). The Morgans' remaining points lack merit. See Felton v. State, 523 So.2d 775 (Fla. 3d DCA Convictions affirmed; Andre Morgan's s......
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