Tessier v. State, 97-2817.

• Decision Date: 19 March 1999
• Docket Number: No. 97-2817.,97-2817.
• Parties: Nathan TESSIER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

730 So.2d 761

Nathan TESSIER, Appellant, v. STATE of Florida, Appellee.

No. 97-2817.

District Court of Appeal of Florida, Fifth District.

March 19, 1999.

James B. Gibson, Public Defender, and Stephanie H. Park, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Simone P. Firley, Assistant Attorney General, Daytona Beach, for Appellee.

THOMPSON, J.

Nathan Tessier appeals the sentences imposed for 12 offenses to which he pled either guilty or nolo contendere. Two of the sentences were imposed after Tessier violated his probation. We affirm the VOP sentences as Tessier failed to properly preserve the asserted error for appeal. See Fla. R.App. P. 9.140(d); § 924.051(3), Fla. Stat. (1997); Maddox v, State, 708 So.2d 617 (Fla. 5th DCA), rev. granted, 718 So.2d 169 (Fla.1998).

The trial court imposed departure sentences of five years in prison for the two counts of burglary of a conveyance (case numbers 97-14287 and 97-14686). The reason the court gave for the upward departures was Tessier's escalating pattern of criminal conduct. Such a pattern is demonstrated by (1) a progression from nonviolent to violent crimes, (2) a progression of increasingly violent crimes, or (3) a pattern of increasingly serious criminal activity. § 921.001(8), Fla. Stat. (1997); Barfield v. State, 594 So.2d 259 (Fla.1992). Tessier's criminal history includes, in chronological order: grand theft motor vehicle; dealing in stolen property; carrying a concealed firearm; resisting arrest without violence; forgery; uttering a forgery; resisting arrest with violence; burglary of a conveyance; petit theft. While Tessier displays a pattern of criminal conduct, it is not an escalating pattern. The trial court therefore erred in imposing the departure sentences for burglary of a conveyance. See State v. Darrisaw, 660 So.2d 269 (Fla.1995)

; Taylor v. State, 601 So.2d 540 (Fla.1992); Barfield; Smith v. State, 579 So.2d 75 (Fla.1991).

Accordingly, we vacate the five-year prison sentences in case numbers 97-14287 and 97-14686 and remand for resentencing within the guidelines. The remaining sentences on appeal are affirmed.

AFFIRMED in part; VACATED in part and REMANDED with directions.

W. SHARP and PETERSON, JJ., concur.