Dirk v. State

Full title: GARY M. DIRK, Appellant, v. STATE OF FLORIDA, Appellee.

Court: DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

Date published: Sep 21, 2012

Case No. 5D06-3770 (Fla. Dist. Ct. App. Sep. 21, 2012)

Opinion

Case No. 5D06-3770

09-21-2012

GARY M. DIRK, Appellant, v. STATE OF FLORIDA, Appellee.

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

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

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.

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 (2000), and Blakely v. Washington, 542 U.S. 296 (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.