Fountain v. State, 90-2394

• Decision Date: 27 June 1991
• Docket Number: No. 90-2394,90-2394
• Parties: 16 Fla. L. Weekly D1704 Jerome FOUNTAIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 96

582 So.2d 96

16 Fla. L. Weekly D1704

Jerome FOUNTAIN, Appellant, v. STATE of Florida, Appellee.

No. 90-2394.

District Court of Appeal of Florida,

Fifth District.

June 27, 1991.

James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Robin Compton Jones, Asst. Atty. Gen., Daytona Beach, for appellee.

HARRIS, Judge.

On January 22, 1990 Jerome Fountain was placed on probation for a third degree felony (possession of controlled substance) and two misdemeanors (trespass and attempted possession of a controlled substance). Less than five months later, Fountain was again arrested, this time for sale or delivery of cocaine (a second degree felony), possession of cocaine (a third degree felony) and possession of drug paraphernalia (a misdemeanor). Under a negotiated plea arrangement, he pled to sale or delivery of cocaine, possession of drug paraphernalia and violation of probation.

His scoresheet, applying the one cell increase, showed a permitted range of community control or 1 to 4- 1/2 years incarceration. Fountain was sentenced as follows:

                Attempted possession of              364 days in the county jail
                controlled substance
                (probation case 89-7864)
                Attempted trespass                   364 days in the county jail
                (probation case 90-3569)             consecutive to 89-7864
                Attempted unlawful of                2 years community control
                possession controlled                consecutive to 89-3569
                substance
                (probation case 89-4398)
                Attempted sale or delivery           8 years probation
                of cocaine
                (new substantive offense
                90-3984--Count I)
                Attempted possession of              1 year probation concurrent
                drug paraphernalia (new              with 90-3984
                substantive offense
                90-3984--Count III)
                ----------
                

Fountain was therefore sentenced to a total of 728 days (less credit for time served) in the county jail, 2 years community control, and 8 years probation.

The trial court, recognizing that incarceration and community control constituted a departure sentence, ¹ stated during sentencing:

I am further giving written reasons for departing from the guidelines sentence as continuing a persistent pattern of criminal conduct. Mr. Fountain obviously intends to continue to violate the law as long as he can get away with it.

The written reason for departure appearing in the record is "continuing and persistent pattern of criminal conduct."

The trial court obviously, and understandably, relied on State v. Simpson, 554 So.2d 506 (Fla.1989) and our case, Lipscomb v. State, 573 So.2d 429 (Fla.5th DCA 1991). This reliance is unfortunate.

First, this authority, even if still good law, only approves departure for the new substantive offenses--not for an earlier offense which is again before the court because of the violation hearing. In the case at bar...