Lipscomb v. State, No. 89-213

CourtCourt of Appeal of Florida (US)
Writing for the CourtHARRIS; DIAMANTIS; COWART; DIAMANTIS; COWART
Citation16 Fla. L. Weekly 330,573 So.2d 429
Parties16 Fla. L. Weekly 330, 16 Fla. L. Weekly 546 Sylvester LIPSCOMB, Appellant, v. STATE of Florida, Appellee.
Decision Date31 January 1991
Docket NumberNo. 89-213

Page 429

573 So.2d 429
16 Fla. L. Weekly 330, 16 Fla. L. Weekly 546
Sylvester LIPSCOMB, Appellant,
v.
STATE of Florida, Appellee.
No. 89-213.
District Court of Appeal of Florida,
Fifth District.
Jan. 31, 1991.

Page 430

James B. Gibson, Public Defender and Glen P. Gifford, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee and Colin Campbell, Asst. Atty. Gen., Daytona Beach, for appellee.

CORRECTED OPINION
EN BANC

ON MOTION FOR REHEARING OR CERTIFICATION

HARRIS, Judge.

Pursuant to the motion for rehearing filed by appellant, we withdraw our prior opinion in this cause dated September 6, 1990, and substitute the following:

Sylvester Lipscomb appeals his departure sentence entered after a nolo contendere plea to grand theft of a motor vehicle. The facts reveal that Lipscomb committed the crime on September 18, 1988 after being released from prison on March 25, 1988. Because the timing of the new grand theft charge was less than six months after his release from prison on a similar charge, the court departed from the guidelines and sentenced Lipscomb to five years in prison. 1 We affirm.

This case returns us to that mystic land of guideline sentencing where we must attempt to discern what the law is at this particular moment. 2 We recognize that the law in this area remains in a state of flux. A unanimous court told us in State v. Pentaude, 500 So.2d 526 (Fla.1987), receded from Lambert v. State, 545 So.2d 838 (Fla.1989) that it was appropriate to exceed the guideline range plus one cell for violation of probation when the reason for violation was sufficiently egregious. Timing was considered sufficiently egregious to warrant departure. The same unanimous court told us in Williams v. State, 504 So.2d 392 (Fla.1987), receded from Gibson v. State, 553 So.2d 701 (Fla.1989) that it was appropriate to base a departure from the guideline range when sentencing for a substantive charge on the "continuing and persistent pattern of criminal activity" or "the timing of each offense in relation to prior offenses and release from incarceration or supervision". Even in State v. Jones, 530 So.2d 53 (Fla.1988) (Jones I ), after two of the Pentaude justices had been replaced, the court was still unanimous in holding that timing, now referred to as "temporal proximity" of commission of offenses, was a valid and sufficient

Page 431

ground for departure. 3

However, the truths of Pentaude, Williams and Jones I were short-lived. Along came Lambert v. State, 545 So.2d 838 (Fla.1989). In Lambert, we are told by a divided court that it is no longer possible to depart in violation cases in excess of the authorized one cell bump up. The same 4-3 majority confirmed this decision in State v. Tuthill, 545 So.2d 850 (Fla.1989) and a unanimous court approved this position in Franklin v. State, 545 So.2d 851 (Fla.1989). A 6-1 majority approved it in Dewberry v. State, 546 So.2d 409 (Fla.1989). In Hamilton v. State, 548 So.2d 234 (Fla.1989) a 5-2 majority again held that factors relating to violations of probation cannot support departure.

Even so, it appears that it might still be possible to depart based on timing or temporal proximity in new substantive cases under section 921.001(6). 4 In fact, in Gibson v. State, 553 So.2d 701 (Fla.1989) the court held that timing, under appropriate circumstances, could be a valid reason for departure in non-violation cases. This truth, however, was somewhat precarious because two justices specially concurred but held that because of the difficulty of determining articulable standards, timing as a factor for departure should no longer be permitted. In Jones v. State, 553 So.2d 702 (Fla.1989) (Jones II), the court again confirmed that timing was a proper basis for departure. The two justices specially concurring in Gibson now dissented.

But then, in State v. Simpson, 554 So.2d 506 (Fla.1989), one of the Jones dissenting judges wrote the opinion in which all of the justices seem to agree that "temporal proximity" is a valid reason for departure if it is shown that the crimes committed demonstrate a continuing and persistent pattern of criminal activity as evidenced by the timing of each offense in relation to prior offenses or the release from incarceration or other supervision. 5 The opinion specifically holds:

However, we stress that timing may be a valid reason if based on facts that demonstrate the type of escalating or persistent pattern described with approval in Keys [v. State, 500 So.2d 134 (Fla.1986) ], Williams I [v. State, 504 So.2d 392 (Fla.1987) ], [State v.] Rousseau [509 So.2d 281 (Fla.1987) ], and Jones, providing the trial court does not rest its conclusion preponderantly on unconvicted conduct. Williams II [v. State, 500 So.2d 501 (Fla.1986) ].

Simpson at 510.

From the advance sheets now available to us it appears that timing is an appropriate reason for departure in non-violation cases if the timing of the new offense in relation to the prior offense or other supervision shows an escalating or persistent pattern of criminal behavior. In our case appellant committed grand theft in Virginia and was sentenced to prison. Upon release he came to Florida and within six months of his release from prison committed the present grand theft offense.

While there is some doubt as to what length of time between the prior offense or release from prison and the new offense will justify a timing departure, we have previously held that 11 months is not so long as to prevent departure. 6 Roseman v. State, 519 So.2d 1129 (Fla. 5th DCA 1988). We hold that a new offense within 6 months of release from prison is of sufficient "temporal proximity" to justify departure.

The next issue is whether two offenses can establish a pattern--escalating

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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 that just as two points can establish a line and just as two felonies can establish a habit, 8 two similar violations of the theft laws separated by a short prison term show a pattern of criminal behavior as it relates to taking other persons' property.

For the foregoing reasons, and at the present time, we affirm.

However we certify the following question of great public importance to the Supreme Court:

MAY A TRIAL JUDGE IMPOSE A DEPARTURE SENTENCE IN A NONVIOLATION OF PROBATION CASE IF THE TIMING OF THE NEW OFFENSE IN RELATION TO THE PRIOR OFFENSE OR THE RELEASE FROM INCARCERATION OR OTHER SUPERVISION SHOWS A PERSISTENT PATTERN OF CRIMINAL BEHAVIOR?

AFFIRMED.

DAUKSCH, COBB, W. SHARP, GOSHORN, PETERSON and GRIFFIN, JJ., concur.

DIAMANTIS, J., concurs specially with opinion.

COWART, J., dissents with opinion.

DIAMANTIS, Judge, concurring specially.

I concur in the majority opinion since the defendant committed the instant grand theft of a motor vehicle within less than six months from being released from prison for grand theft of a motor vehicle. Cf. Hernandez v. State, 569 So.2d 857 (Fla. 2d DCA 1990). Therefore, I would phrase the certified question to the supreme court to read as follows:

DOES THE DEFENDANT'S COMMISSION OF A SECOND SIMILAR NONVIOLENT FELONY WITHIN APPROXIMATELY SIX MONTHS OF HIS RELEASE FROM STATE SUPERVISION FOR THE FIRST CONVICTION DEMONSTRATE HIS INVOLVEMENT IN A CONTINUING AND PERSISTENT PATTERN OF CRIMINAL ACTIVITY WHICH WOULD PERMIT A TRIAL JUDGE TO IMPOSE A DEPARTURE SENTENCE IN A NONVIOLATION OF PROBATION CASE?

COWART, Judge, dissenting.

The legal issue presented is whether, when a defendant commits a second or subsequent offense after having previously been convicted and incarcerated, and three aspects of the prior conviction are appropriately scored on the guidelines scoresheet relating to the subsequent offense, may the trial judge depart from the recommended guidelines sentencing range based on the "timing" relationship (or "temporal proximity") of the subsequent offense to the defendant's release from the incarceration imposed for the prior offense.

The trial court stated the following "clear and convincing" reasons for the departure:

1. The defendant's prior record includes a conviction for the offense of Grand Theft for which he received five (5) years in prison from which prison sentence he was released on March 25, 1988; the instant case on which the defendant has herein been sentenced is for the offense of Grand Theft. (Said instant Grand Theft offense having been committed on September 18, 1988.)

2. The timing of the offense of Grand Theft in the instant case, in that the defendant had been released from prison on March 25, 1988, from imprisonment for the offense of Grand Theft, and within approximately six months of said release committed the offense in the instant case.

Page 433

3. The failure of past rehabilitation and the improbability of future rehabilitation as evidenced by the defendant's recent release from prison and as evidenced by the fact that the defendant committed the same offense of Grand Theft Auto that he had been recently released from imprisonment for.

4. The offense in the instant case was committed while the defendant was on probation for the offense of Breaking and Entering.

In this case at some previous time the defendant Lipscomb committed a grand theft offense in the State of Virginia, was convicted and sentenced to five years' incarceration, served some time in prison there and was there released on parole on March 25, 1988. Lipscomb came to Florida and committed another grand theft offense on September 18, 1988 for which he received a departure sentence which he appeals.

On Lipscomb's Rule 3.988(f), Category 6 (theft) guidelines scoresheet the Virginia grand theft conviction and related parole were scored three separate ways and times.

First, the Virginia theft conviction was scored on the scoresheet under...

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1 practice notes
  • Fountain v. State, No. 90-2394
    • United States
    • Court of Appeal of Florida (US)
    • June 27, 1991
    ...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 First, this authority, even if still good law, only approves departure for the new substantive offenses--no......
1 cases
  • Fountain v. State, No. 90-2394
    • United States
    • Court of Appeal of Florida (US)
    • June 27, 1991
    ...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 First, this authority, even if still good law, only approves departure for the new substantive offenses--no......

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