Frederick v. State

Decision Date31 January 1990
Docket NumberNo. 89-1298,89-1298
Citation556 So.2d 471
Parties15 Fla. L. Weekly D300 Patrick O'Neal FREDERICK, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Michael E. Allen, Public Defender and David A. Davis, Asst. Public Defender, David Nam, Certified Intern, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., Tallahassee, for appellee.

SCHWARTZ, ALAN R., Associate Judge.

The defendant appeals from an upward departure from the sentencing guidelines. Based solely upon the fact that Frederick committed the present offense of simple possession of cocaine seventy-eight days after being discharged from a four-month jail term for his only prior conviction which was for sale of cocaine, the trial judge sentenced him to the maximum statutory term of five years, well in excess of the guidelines recommendation of up to twenty-two months. The grounds assigned for departure were:

(1) the defendant's recent release from custody.

(2) the defendant's continued and persistent pattern of drug-related crime.

We reverse.

It is now very clear, as elucidated by the supreme court in State v. Simpson, 554 So.2d 506 (Fla.1989), decided after the sentence under review, that neither of the supposedly separate grounds asserted are, on these facts, legally sufficient to support the departure. With respect to cases such as this, which involve an interrelationship between the "temporal proximity" and "pattern of criminal activity" grounds, Simpson states:

In State v. Jones, 530 So.2d 53, 55 (Fla.1988), we again held that timing of offenses could be a valid reason for departure under certain conditions. However, we cautioned trial courts:

Before 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.

Id. at 56. Applying this standard in Jones, we held that the defendant did not evince such a continuing and persistent pattern. In Jones, the defendant had committed a burglary and grand theft about one year after release from prison on earlier charges, and he then trafficked in stolen goods five months later. Id.

In the present case, the trial court's reasons for departure recited two separate factors involving timing. First, the trial court based departure on the fact that Simpson committed one attempted armed robbery on one day and a second armed robbery two days later. If this were the only reason for the departure, we would be forced to conclude that [State v. ] Rousseau [509 So.2d 281 (Fla.1987) ] controls the facts at hand, since these particular crimes were scored as primary offenses. Thus, without other reasons, this factor would be insufficient to justify departure. Two criminal episodes occurring two days apart are insufficient to establish a continuing and persistent or escalating pattern of criminality. (o.e.)

554 So.2d at 510. Under this rule, in the state-conceded absence of Frederick's involvement in a "continuing and persistent pattern of criminal activity"--one which could not in any event arise when, as here, only two offenses are involved, Davis v. State, 534 So.2d 821 (Fla. 4th DCA 1988)--the allegedly short period between his release and the present crime 1 cannot alone support a guidelines deviation. 2 In other words, proximity alone is no longer (if it ever were) enough; a sufficient pattern of criminal activity must also be demonstrated. Since it was not, we vacate the sentence and remand for resentencing...

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6 cases
  • Lipscomb v. State, 89-213
    • United States
    • Florida District Court of Appeals
    • January 31, 1991
    ...departure. The next issue is whether two offenses can establish a pattern--escalating or persistent. 7 The courts in Frederick v. State, 556 So.2d 471 (Fla. 1st DCA 1990) and McKinney v. State, 559 So.2d 621 (Fla. 3d DCA 1990) hold that two offenses do not a pattern make. We find however th......
  • Brown v. State, 88-02449
    • United States
    • Florida District Court of Appeals
    • June 7, 1991
    ...which is the same as saying that temporal proximity alone will support a departure. However, the First District in Frederick v. State, 556 So.2d 471 (Fla. 1st DCA 1990) and the Third District in McKinney v. State, 559 So.2d 621 (Fla. 3d DCA 1990) have held that two offenses do not establish......
  • Gore v. State, 89-01450
    • United States
    • Florida District Court of Appeals
    • April 4, 1990
    ...702 (Fla.1989); Gibson v. State, 553 So.2d 701 (Fla.1989). Compare State v. Simpson, 554 So.2d 506 (Fla.1989) and Frederick v. State, 556 So.2d 471 (Fla. 1st DCA 1990). The appellant also contends that the trial court erred in imposing court costs without notice or a determination of his ab......
  • Barfield v. State, 88-3269
    • United States
    • Florida District Court of Appeals
    • August 1, 1990
    ...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 convic......
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