Opinion
No. 90-00944.
August 9, 1991.
Appeal from the Circuit Court, Hillsborough County, Manuel Menendez, Jr., J.
Catherine P. Teti, Tampa, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Angelica D. Zayas, Asst. Atty. Gen., Miami, for appellee.
We affirm defendant's convictions and sentences for delivery of a controlled substance and obstructing an officer without violence.
We address only defendant's contention that the trial court erred in departing from the sentencing guidelines on the basis of the temporal proximity of the crimes (committing the crimes approximately three months after being released from incarceration apparently for possession and delivery of a controlled substance, grand theft, and battery) and a continuing and persistent pattern of criminal behavior (1988 convictions for grand theft and battery, a September 1987 conviction for possession of cannabis with intent to deliver, May 1987 convictions for delivery and possession of cannabis, and 1986 convictions for delivery and possession of cocaine). We disagree with that contention. The departure fulfilled the requirements of State v. Jones, 530 So.2d 53, 56 (Fla. 1988), that
[b]efore the temporal proximity of the crimes can be considered as a valid reason for departure, it must be shown that the crimes committed demonstrate a defendant's involvement in a continuing and persistent pattern of criminal activity as evidenced by the timing of each offense in relation to prior offenses and the release from incarceration or other supervision.
We do not conclude that Smith v. State, 579 So.2d 75 (Fla. 1991), requires for a valid departure in this kind of case that the pattern of crimes culminating in the crime for which defendant is being sentenced show an escalation to more serious or violent crimes, notwithstanding language in Smith which might arguably be taken otherwise. Smith contains the foregoing quotation from Jones and reversed a departure which, in contrast to the circumstances of this case, was only for "one successive criminal episode of no greater significance than the first."
Fountain v. State, 582 So.2d 96 (Fla. 5th DCA 1991), is distinguishable. Fountain reversed a departure sentence imposed for sale or delivery of cocaine, possession of cocaine, and possession of drug paraphernalia, the departure having been based upon a persistent pattern of criminal conduct involving one prior sentencing for possession of a controlled substance, trespass, and attempted possession of a controlled substance. In that context, Fountain interpreted Smith as requiring, for such a pattern to justify a departure, that there have been an escalation of the seriousness of the offenses. Fountain did not appear to consider the apparent lack of a pattern of criminal conduct in Smith (in contrast to the circumstances of the instant case), whether or not the second Smith crime was more serious than the first. Also, while in Fountain the offense for which defendant was being sentenced was committed less than five months after his release from incarceration for prior offenses, the trial court in that case did not assign temporal proximity as a reason for departure.
Affirmed.
DANAHY, A.C.J., concurs.
ALTENBERND, J., concurs in part and dissents in part.
Although I prefer the result of the majority opinion to that suggested by this dissent, I cannot fully concur. It appears that the supreme court's answer to the certified question in its most recent decision on this issue prohibits an upward departure in this case. Smith v. State, 579 So.2d 75 (Fla. 1991). Based on the answer to the certified question in Smith, it appears that trial courts may not depart upward from the sentencing guidelines based "solely on a persistent pattern of criminal activity, closely related in time, although the pattern is not escalating towards more violent or serious crimes." Id. at 76.
The majority avoids the supreme court's answer to the certified question by considering the specific facts in Smith. While that may be a valid approach, with all due respect to the supreme court, I simply do not understand the factual distinction the supreme court employed in Smith to distinguish that decision from prior case law on this issue. State v. Simpson, 554 So.2d 506 (Fla. 1989); State v. Jones, 530 So.2d 53 (Fla. 1988).
This is apparently the defendant's fifth felony within a span of three years. These felonies have resulted in several sentences imposed at separate sentencing hearings. Apparently, the defendant has committed a felony shortly after his release on more than one occasion. Although this may be a pattern of felonies, the felonies are not escalating in severity. In fact, four of the felonies, including this case, are relatively minor drug offenses. None of the offenses appear to involve violence. Unless Smith is limited only to cases involving two criminal episodes or two sentencing hearings which involve multiple offenses, as compared to cases involving several criminal episodes or several sentencing hearings which involve a similar number of offenses, I believe Smith precludes this upward departure.
I would note that the defendant committed this offense in May 1989, after the October 1988 amendment to the habitual offender statute. Thus, the trial court could have declared him a habitual offender, sidestepped the guidelines, and sentenced him to ten years' incarceration. § 775.084, Fla. Stat. (Supp. 1988). The defendant's upward departure sentence is only a five-year sentence on the third-degree felony, consecutive to a one-year sentence in the county jail for the misdemeanor. Thus, this upward departure is approximately one-half the length of a legal sentence that the trial court could have properly imposed in this case.
I am inclined to believe that the trial court should have the flexibility to use the upward departure as a method to impose a sentence between that permitted by the guidelines and that authorized by the habitual offender statute. The supreme court, however, has held that habitual offender status is not a valid reason to depart from the guidelines. Whitehead v. State, 498 So.2d 863 (Fla. 1986) (interpreting an earlier version of the habitual offender statute). Despite changes in the habitual offender statute, we will prohibit a departure based on habitual offender status. West v. State, 583 So.2d 394 (Fla. 2d DCA 1991). Under the current statute, a defendant can be declared a habitual offender if he has committed a few crimes within a specified temporal window. If the trial court cannot use the timing of offenses as a reason to depart under the title "habitual offender," it is not particularly logical to allow a departure for the same reasons using the title, "temporal proximity." Perhaps it is no longer necessary to allow a departure for temporal proximity because the trial court can accomplish the same result under the habitual offender statute. In the alternative, perhaps we should revisit Whitehead in light of the statutory changes so that trial courts will clearly have the flexibility to use temporal proximity to impose a sentence which is more onerous than the permitted guidelines sentence but without all the conditions of a habitual offender sentence.
Although it may be a technical error, the defendant's criminal history may not be sufficiently delineated in the trial court's written reason for departure. See State v. Jones, 530 So.2d 53 (Fla. 1988); Williams v. State, 504 So.2d 392 (Fla. 1987). The reason is merely a handwritten, abbreviated comment at the bottom of the scoresheet. This general statement is similar to the written reason which was declared inadequate in Jones and does not compare to the detailed outline provided in Williams. The transcript of the sentencing hearing contains a general description of the defendant's prior record, but there are no documents in this record on appeal to clearly establish a pattern with temporal proximity.
Accordingly, I agree that the convictions should be affirmed, but I would remand for sentencing within the guidelines. See West.