JOSEPH BELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Bell appeals an upward departure sentence for burglary, arguing his criminal record does not demonstrate an escalating pattern of criminal conduct as required by Florida law. The appellate court agrees and reverses, finding Bell's persistent but non-escalating criminal history does not justify departure from the sentencing guidelines.
An upward departure sentence cannot be justified under section 921.001(8) based on a persistent pattern of similar criminal activity. The statute requires evidence of escalation, such as progression from nonviolent to violent crimes or increasingly serious criminal activity. A persistent but non-escalating pattern, even if remarkable, does not satisfy this requirement and is already accounted for in the sentencing guidelines.
[1] A departure sentence based on an escalating pattern of criminal conduct requires both an increase in the seriousness of the offenses and some recurring features of the cr…
[2] An 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…
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Establishes the two-part test courts must apply when evaluating whether an escalating pattern exists for departure sentencing purposes
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Join FLexlaw to unlock all legal intelligenceBell was convicted of a third-degree felony burglary. Since 1988, he had been previously convicted of three third-degree felonies (two burglaries of a…
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PER CURIAM.
Joseph Bell appeals a departure sentence entered upon his conviction for burglary. Because the appellant’s criminal record does not “indicate an escalating pattern of criminal conduct,” section 921.001(8), Florida Statutes (1995), we reverse.
Pursuant to section 921.001(8), the lower court imposed an upward departure from the sentencing guidelines range on the ground that appellant’s criminal record indicated “an escalating pattern of criminal conduct.” The Florida Supreme Court has interpreted this statutory basis for imposing a departure sentence as requiring both an increase in the seriousness of the offenses and some recurring features of the crimes. See State v. Darrisaw, 660 So. 2d 269 (Fla.1995). The statute itself provides that an escalating pattern 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.” § 921.001(8), Fla. Stat. (1995). The record in the instant case reflects that since 1988 appellant has been previously convicted of three third degree felonies (two burglaries of a structure offenses and a grand theft) and eleven misdemeanors. Appellant’s instant conviction is a third degree felony.
While there is no doubt that appellant has demonstrated a remarkably persistent pattern of criminal activity, it cannot be said to be an escalating one. Appellant’s criminal conduct has consistently involved burglary and trespass. The instant offense did not involve increased violence and did not constitute an offense that was either an increase in the degree or in the sentence which may be imposed when compared to appellant’s prior offenses. In short, appellant’s record does not reflect a “progression” or “pattern of increasingly serious criminal activities.” See Shaw v. State, 586 So. 2d 1276 (Fla. 3d DCA 1991). A persistent pattern of similar criminal activity, which is already taken into account by the sentencing guidelines scoring scheme, is not a basis for departure under section 921.001(8). See Barfield v. State, 594 So. 2d 259 (Fla.1992).
Accordingly, appellant’s departure sentence is vacated and the cause is remanded for resentencing under the guidelines.
REVERSED and REMANDED.
JOANOS, WOLF and VAN NORTWICK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Tobias Barfield v. State, 594 So. 2d 259 (Fla. 1992)
- State v. Darrisaw, 660 So. 2d 269 (Fla. 1995)
- Shaw v. State, 586 So. 2d 1276 (Fla. 3d DCA 1991)