Williams v. State, 95-3053

• Decision Date: 16 April 1997
• Docket Number: No. 95-3053,95-3053
• Citation: 691 So.2d 1158
• Parties: 22 Fla. L. Weekly D958 James WILLIAMS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1158

691 So.2d 1158

22 Fla. L. Weekly D958

James WILLIAMS, Appellant, v. STATE of Florida, Appellee.

No. 95-3053.

District Court of Appeal of Florida Fourth District.

April 16, 1997.

Evan H. Baron of Baron & Schantz, P.A., Pembroke Pines, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee; and Michelle A. Konig, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, Judge.

This is a companion case to Rosado v. State, 691 So.2d 595 (Fla. 4th DCA 1997). The defendant here was part of the same group of youths who beat a 38-year old man to death. All of the defendants, including Williams, pleaded nolo contendere to manslaughter without any agreement as to the sentence. As in Rosado, the only issues relate to sentencing.

The trial judge based his departure enhancement sentence in this case on victim vulnerability and an escalating pattern of criminal conduct. As to the issue of victim vulnerability, the trial court gave the identical reason he gave in Rosado. We therefore reverse as to victim vulnerability on the same grounds we stated in Rosado.

That leaves only the escalating pattern of criminal behavior to justify a harsher sentence than provided by the guidelines. The judge based his conclusion on 11 alleged instances in which defendant was involved with the juvenile system. Thus we may affirm the sentence only if the enhancement on this ground was proper.

Initially, the state argues that defendant has waived appellate review of this issue for failure to object below. With respect to sentencing issues, the supreme court has held that a contemporaneous objection is generally required. State v. Whitfield, 487 So.2d 1045 (Fla.1986). Because, however, the supreme court has consistently held that departure errors apparent on the face of the record do not require a contemporaneous objection in order to be preserved for appeal, we reject the state's waiver argument. See Taylor v. State, 601 So.2d 540 (Fla.1992) (apparent departure errors do not require contemporaneous objection; contemporaneous objection is required for errors requiring resolution of factual matters not contained in the record).

The trial judge explained his finding of an escalating pattern of criminal conduct as follows:

"With your 11 prior contacts with this system, some auto thefts, burglary, sexual battery, this court finds that you have an escalating pattern of criminality and criminal activity...."

Defendant argues that mere contacts with the juvenile system lacking a judicial disposition are not a sufficient basis on which to find an escalating pattern of criminal conduct.

The enhancement departure ground for an escalating pattern of criminal conduct arises from section 921.001(8), Florida Statutes (1993), which provides:

"A sentence may be imposed outside the guidelines based on credible facts, proven by a preponderance of the evidence, which demonstrate that defendant's prior record, including offenses for which adjudication was withheld and the current criminal offense for which the defendant is being sentenced, indicate an escalating pattern of criminal conduct. The escalating pattern of criminal conduct may be evidenced by a progression from nonviolent to violent crimes, a progression of increasingly violent crimes, or a pattern of increasingly serious criminal activity." [e.s.]

The term "prior record" is defined in section 921.0011(5), as follows:

" 'Prior record' means a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense. Convictions for offenses committed by the offender more than 10 years before the primary offense are not included in the offender's prior record if the offender has not been convicted of any other crime for a period of 10 consecutive years from the most recent date of release from confinement, supervision, or sanction, whichever is later, to the date of the primary offense. Juvenile dispositions of offenses committed by the offender within 3 years before the primary offense are included in the offender's prior record when the offense would have been a crime had the offender been an adult rather than a juvenile. Juvenile dispositions of sexual offenses committed by the offender which were committed 3 years or more before the primary offense are included in the offender's prior record if the offender has not maintained a conviction-free record, either as an adult or a juvenile, for a period of 3 consecutive years from the most recent date of release from confinement, supervision or sanction, whichever is later, to the date of the primary offense." [emphasis supplied]

As the highlighted parts of these two statutes demonstrate, the legislature has required that a departure on this ground must be rooted in convictions or juvenile dispositions. Hence, mere "contacts" with the juvenile system will not support a finding of an escalating pattern of criminal conduct. Thus, we agree with defendant that the trial court's reliance on all prior contacts with the juvenile system was improper. ¹

Only two of the 11 contacts appear to have resulted in dispositions or adjudications. The record shows, however, that defense counsel challenged one of these juvenile dispositions described on the pre-sentence investigation report (PSI) and in the written submission from the Department of Juvenile Justice. ² In Eutsey v. State, 383 So.2d 219 (Fla.1980), the court held that it was:

"imperative, where the defendant disputes the truth of hearsay statements contained in...