Dirk v. State

Full title: Gary M. DIRK, Appellant, v. STATE of Florida, Appellee.

Court: District Court of Appeal of Florida, Fifth District.

Date published: Nov 5, 2012

114 So. 3d 1024 (Fla. Dist. Ct. App. 2012)

Opinion

No. 5D06–3770.

2012-11-5

Gary M. DIRK, Appellant, v. STATE of Florida, Appellee.

Appeal from the Circuit Court for Brevard County, Tonya Rainwater, Judge. James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Appeal from the Circuit Court for Brevard County, Tonya Rainwater, Judge.

James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

Prior report: 84 So.3d 203.

ON REMAND

PER CURIAM.

We reconsider this matter on remand from the Florida Supreme Court. See Dirk v. State, 84 So.3d 203 (Fla.2012). We affirm Dirk's upward departure sentence, finding that any error in the trial court's failure to apply Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), at Dirk's resentencing was harmless error. See Galindez v. State, 955 So.2d 517 (Fla.2007). The record demonstrates beyond a reasonable doubt that a rational jury would have found that Dirk had engaged in an escalating pattern of criminal conduct. Barfield v. State, 594 So.2d 259 (Fla.1992).

AFFIRMED.

SAWAYA, TORPY and EVANDER, JJ., concur.