Darrisaw v. State
| Decision Date | 09 September 1994 |
| Docket Number | No. 93-1708,93-1708 |
| Citation | 642 So.2d 615 |
| Parties | 19 Fla. L. Weekly D1870 Marty B. DARRISAW, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
We withdraw our previous opinion and substitute the following in its place.
We affirm the conviction of appellant. However, we reverse the departure sentence as neither reason given by the trial judge is a valid ground for departure.
Appellant was convicted of robbery with a firearm, grand theft auto, and aggravated assault. The guidelines scoresheet revealed that appellant's recommended range was 3 1/2-4 1/2 years, and the permitted range was 2 1/2 to 5 1/2 years imprisonment. The trial court elected to depart from the guidelines and impose a 40 year sentence in the DOC on the following grounds: (1) that appellant was employed at the time of the offense as a correctional officer and that the commission of the offense was a breach of the public trust; and (2) appellant's escalating pattern of criminal activity.
The first reason is not a valid reason for departure because there was no evidence that appellant's position was in any way used to facilitate the crime. See Jefferson v. State, 549 So.2d 222 (Fla. 1st DCA 1989).
The second reason was based on appellant's prior record of two misdemeanor convictions of trespassing and resisting arrest without violence which occurred four years prior to the instant offense. The trial court concluded that departure was appropriate because the record reflected an escalating pattern of criminal conduct from nonviolent to violent crimes, from misdemeanors to felonies, and from non-personal to personal crimes.
In Barfield v. State, 594 So.2d 259 (Fla.1992), the supreme court answered a certified question from this court as to whether the temporal proximity of crimes alone provides a valid reason for departure without a finding of a persistent pattern of criminal activity. The court held that the temporal proximity of crimes alone could not serve as a basis for departure absent an escalating pattern of criminal behavior. It stated:
Consequently, the "escalating pattern" recognized by section 921.001(8) as a valid basis for departure can be demonstrated in three ways: 1) a progression from nonviolent to violent crimes; 2) a progression of increasingly violent crimes; or 3) a pattern of increasingly serious criminal activity. Under this third category, "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.
The defendant Barfield had been convicted in 1987 of trafficking in cocaine in an amount of 28 grams or more but less than 200 grams. He served time in prison and committed the offense which resulted in the departure sentence ninety days after being released from prison. Noting that the second offense of trafficking in cocaine and conspiracy to traffic in an amount in excess of 400 grams was a crime of increased seriousness because of its increased penalty, the court said that this indicated an "escalating pattern of criminal conduct" under the third category. The court therefore affirmed the departure sentence.
Barfield is further explained in Taylor v. State, 601 So.2d 540 (Fla.1992), wherein the court noted:
This Court noted in Barfield that section 921.001(8), Florida Statutes (1987), allows a trial court to give a defendant a departure sentence for an escalating pattern of criminal activity which can be demonstrated in one of three ways: [citing three categories listed above].... Prior offenses no matter how close or remote in time alone are not enough to show an escalating pattern of criminal activity. These prior offenses are already scored on the sentencing guidelines scoresheet, and the scored points may increase the...
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Tucker v. State, 94-2679
...that temporal proximity of prior offenses is not necessary to show an escalating pattern of criminal activity. See Darrisaw v. State, 642 So.2d 615 (Fla. 4th DCA 1994), rev. granted, 650 So.2d 991 (Fla.1995) (question certified as to whether a pattern of criminal conduct can be proved by th......
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Cooper v. State, 4D99-2708.
...activity already included on the defendant's scoresheet may not be considered a second time for departure reasons. Darrisaw v. State, 642 So.2d 615, 617 (Fla. 4th DCA 1994), approved, 650 So.2d 991 (Fla.1995); Hendrix v. State, 475 So.2d 1218, 1220 In this case, the only evidence concerning......
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Darrisaw v. State, 96-0187
...CURIAM. After appellant's successful appeal to this court and the supreme court challenging his departure sentence, Darrisaw v. State, 642 So.2d 615 (Fla. 4th DCA 1994), approved, 660 So.2d 269 (Fla.1995), the case was remanded to the trial court with directions to sentence the appellant wi......
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State v. Darrisaw
...Palm Beach, for petitioner. Nelson E. Bailey, West Palm Beach, for respondent. HARDING, Justice. We have for review Darrisaw v. State, 642 So.2d 615, 618 (Fla. 4th DCA 1994), in which the Fourth District Court of Appeal certified the following question as one of great public IS A PATTERN OF......