Taylor v. State

• Decision Date: 25 June 1992
• Docket Number: No. 78133,78133
• Citation: 601 So.2d 540
• Parties: Henry TAYLOR, Petitioner, v. STATE of Florida, Respondent. 601 So.2d 540, 17 Fla. L. Week. S369
• Court: Florida Supreme Court

Page 540

601 So.2d 540

Henry TAYLOR, Petitioner, v. STATE of Florida, Respondent.

No. 78133.

601 So.2d 540, 17 Fla. L. Week. S369

Supreme Court of Florida.

June 25, 1992.

James B. Gibson, Public Defender and Michael S. Becker, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for petitioner.

Robert A. Butterworth, Atty. Gen. and David S. Morgan, Asst. Atty. Gen., Daytona Beach, for respondent.

HARDING, Justice.

We have for review Taylor v. State, 579 So.2d 405 (Fla. 5th DCA 1991), in which the Fifth District Court of Appeal issued a per curiam affirmance based on the authority of State v. Williams, 576 So.2d 281 (Fla.1991); Lipscomb v. State, 573 So.2d 429 (Fla. 5th DCA) (en banc), dismissed, 581 So.2d 1310 (Fla.1991); and Flowers v. State, 567 So.2d 1055 (Fla. 5th DCA 1990), quashed, 586 So.2d 1058 (Fla.1991). We grant jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution, and Jollie v. State, 405 So.2d 418 (Fla.1981), because this Court had accepted review of the Fifth District Court of Appeal's decision in Flowers.

Henry Taylor (Taylor) raises two issues for this Court's review. First, Taylor contends that the trial court improperly used a multiplier in calculating legal constraint points on his scoresheet. Second, Taylor argues that the trial court improperly gave him a departure sentence based on the ground of persistent criminal conduct. In response, the State acknowledges the trial judge's error in calculating the legal constraint points, but argues that Taylor failed to preserve the issue of the departure sentence. Further, the State argues that even if Taylor preserved the issue, the trial judge granted a proper departure based on Taylor's persistent pattern of criminal activities.

We recognize that the trial court erred in calculating the legal constraint points in the instant case. See Flowers v. State, 586 So.2d 1058 (Fla.1991). However, the sentencing judge gave Taylor a departure sentence which did not consider the legal constraint points. Thus, the issue before us is whether the trial court's departure sentence is valid. At the onset, we reject the State's argument that the Court may not review the defendant's departure sentence without a contemporaneous objection to preserve a departure error apparent on the face of the record. This Court has held in a long line of guidelines precedent ¹ that departure errors apparent on the face of the record do not require a contemporaneous objection in order to be preserved for review.

The general principle underlying this practice for sentencing errors was explained by Justice Overton:

The contemporaneous objection rule ... was fashioned primarily for use in trial proceedings. The rule is intended to give trial judges an opportunity to address objections made by counsel in trial proceedings and correct errors. The rule prohibits trial counsel from deliberately allowing known errors to go uncorrected as a defense tactic and as a hedge to provide a defendant with a second trial if the first trial decision is adverse to the defendant. The primary purpose of the contemporaneous objection rule is to ensure that objections are made when the recollections of witnesses are freshest and not years later in a subsequent trial or a post-conviction relief proceeding. The purpose for the contemporaneous objection rule is not present in the sentencing process because any error can be corrected by a simple remand to the sentencing judge.

State v. Rhoden, 448 So.2d 1013, 1016 (Fla.1984) (citations omitted). Sentencing errors requiring resolution of factual matters not contained in the record are, for obvious reasons, an exception to this practice and cannot generally be raised for the first time on appeal. See Dailey v. State, 488 So.2d 532 (Fla.1986). The overall practice was summarized by Justice McDonald:

"Sentencing errors may be reviewed on appeal, even in the absence of a contemporaneous objection, if the errors are apparent from the four corners of the record."

Id. at 533 (quoting with approval from Dailey v. State, 471 So.2d 1349, 1351 (Fla. 1st DCA 1985)).

Because the alleged error in the present case, i.e., that Taylor's prior record did not warrant departure, is determinable from the record, no objection is required to preserve the matter for review.

The district court's per curiam affirmance relied on Lipscomb, which found that temporal proximity is an appropriate reason for departure in non-violation of probation 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." 573 So.2d at 431. Recently in Barfield v. State, 594 So.2d 259 (Fla.1992), we clarified when temporal proximity could be used as a reason for a departure from the guidelines. 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: "1) a progression from nonviolent to violent crimes; 2) a progression of increasingly violent crimes; or 3) a pattern of increasingly serious criminal activity." Id. at 261. Further, we found that " '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." Id. 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 ...