Pearson v. State, 94-187

Decision Date15 February 1995
Docket NumberNo. 94-187,94-187
Citation650 So.2d 210
Parties20 Fla. L. Weekly D425 Bennie Lee PEARSON, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Bennett H. Brummer, Public Defender, and Louis Campbell, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellee.

Before BARKDULL, COPE, and GODERICH, JJ.

PER CURIAM.

The defendant, Bennie Lee Pearson, appeals from the upward departure sentence, imposed on remand, for second degree murder with a firearm. We affirm.

The defendant was convicted of second degree murder with a firearm. He was sentenced as a habitual violent felony offender to fifty years in prison with a mandatory minimum of fifteen years without eligibility of parole. On appeal, the sentence was reversed and remanded for resentencing. Pearson v. State, 603 So.2d 676 (Fla. 3d DCA 1992), rev'd. in part, 616 So.2d 49 (Fla.1993).

On remand, the recommended guidelines range for second degree murder with a firearm was seventeen to twenty-two years in prison, and the permitted range was twelve to twenty-seven years in prison. The State filed a written motion requesting an upward departure on the basis that the defendant had exhibited "an escalating pattern of criminal conduct." In opposition, the defendant filed a written motion requesting a sentence below or within the guidelines.

At the resentencing hearing, the State presented certified copies of defendant's prior convictions, an affidavit from the Department of Corrections, and a detailed history of defendant's criminal history. The State argued that the defendant's prior convictions showed "an escalating pattern of criminal conduct" that justified a departure sentence. The defendant's convictions included resisting with violence, burglary to a conveyance, grand theft, resisting without violence, grand theft, strong-arm robbery, aiding in an escape, and finally, second-degree murder with a firearm.

The court imposed an upward departure sentence of forty years in prison with a three year minimum mandatory term for the use of a firearm. The reason for the departure was noted on the sentencing scoresheet as follows: "Defendant has shown an escalating pattern of criminal behavior." This appeal follows.

The defendant contends that the trial court abused its discretion by departing upward from the sentencing guidelines based on an escalating pattern of criminal behavior, by failing to recite, either orally or in writing, the offenses demonstrating the escalating pattern of criminal behavior, and by failing to make findings as to the timing of each offense in relation to prior offenses and the releases from incarceration. We disagree.

An "escalating pattern of criminal behavior" is a factor that has been approved by the Florida Supreme Court as a basis for departure from the guidelines sentence. State v. Vanhorn, 561 So.2d 584, 585 (Fla.1990); Keys v. State, 500 So.2d 134 (Fla.1986)...

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