Cox v. State, BM-184

• Decision Date: 23 June 1987
• Docket Number: No. BM-184,BM-184
• Citation: Cox v. State, 508 So.2d 1318, 12 Fla. L. Weekly 1525 (Fla. App. 1987)
• Parties: 12 Fla. L. Weekly 1525 Nicholas M. COX, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1318

508 So.2d 1318

12 Fla. L. Weekly 1525

Nicholas M. COX, Appellant, v. STATE of Florida, Appellee.

No. BM-184.

District Court of Appeal of Florida First District.

June 23, 1987.

Michael E. Allen, Public Defender; and Kenneth L. Hosford, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Royall P. Terry, Jr., Asst. Atty. Gen., for appellee.

PEARSON, TILLMAN, Associate Judge (Ret.).

This is an appeal from a sentence which exceeds the presumptive sentence recommended by the sentencing guidelines. Because we find the departure from the guidelines' recommended sentence to be unsupported by the record, we reverse.

The appellant entered pleas of nolo contendere to one count of burglary of a dwelling, one count of burglary of a conveyance, and one count of grand theft. The underlying facts, which are not in dispute, are that on August 8, 1985 appellant broke into a vehicle and stole stereo parts, that during the afternoon or early evening of August 11, 1985 he broke into another vehicle and stole some cigarettes, a cigarette lighter and a can of Coca-Cola, and that later during the evening of August 11, 1985 he broke into a mobile home and stole a television set and some other items. The presentence investigation report on the appellant revealed that his only prior convictions were for two relatively minor marijuana offenses committed in New York in 1983. Based on the instant convictions and on the appellant's prior record as revealed by the presentence investigation report, the guidelines' recommended sentence was "any non-state prison sanction." However, the trial court imposed a sentence of three years incarceration, giving the following written reasons for its decision to depart from the recommended sentence:

1. During a three (3) day time period, the Defendant committed three separate felony offenses involving three (3) separate victims. This is evidence of the defendant's involvement in a one man crime binge.

2. The defendant's pattern of escalating crimes, as his criminal activity increases, displays an increasing threat to the welfare of the community.

In the recent case of Keys v. State, 500 So.2d 134 (Fla.1986), our Supreme Court expressly held that in order to support a departure sentence the written reasons given by the trial court for departure must not only be "clear and convincing" but must:

be credible and proven beyond a reasonable doubt. Even if the reason is one which in the abstract may be appropriate for departure, the facts of the particular case must establish the reason beyond a reasonable doubt.

500 So.2d at 135. Although both of the reasons given by the trial court for departure have been held in other cases to be "appropriate for departure," the record before us fails to support the application of either reason in this case.

Our research indicates that the vast majority of the recent cases approving departure on grounds that the defendant engaged in a "crime spree" or "crime binge" have involved far more serious crimes and far more egregious circumstances than those of this case. For example, in Paschall v. State, 501 So.2d 1370 (Fla. 2d DCA 1987), the defendant was convicted of nine armed robberies and one aggravated assault, all within a six month period. A number of the crimes for which Paschall was being sentenced were committed after he had been released on bond subsequent to his arrest for several of the other crimes. Although in Williams v. State, 500 So.2d 604 (Fla. 5th DCA 1987) no reference was made to the actual number of crimes committed, the Williams court did refer to the defendant's "quite active" criminal career involving armed robberies and aggravated assaults using a firearm, to the "close proximity of the various crimes," and to the fact that the defendant was out on bond for earlier crimes when some of his later crimes were committed. In Snelling v. State, 500 So.2d 328 (Fla. 1st DCA 1986) this court approved the trial court's "crime spree" rationale for departure where the defendant was convicted of ten separate crimes committed during an eleven month period in a confined geographical area. In Snelling, as in Paschall and Williams, a number of the crimes for which the defendant was being sentenced had been committed after he had already been arrested for several of the earlier crimes for which he was being sentenced. In Sabb v. State, 479 So.2d 845 (Fla. 1st DCA 1985) this court approved the "crime spree" rationale for departure where the defendant...