Opinion
No. 89-812.
December 6, 1990.
Appeal from the Circuit Court for Volusia County, John W. Watson, III, J.
James B. Gibson, Public Defender, and Kathryn Rollison Radtke, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for appellee.
Alpheus Eugene Thompson appeals a departure sentence imposed for a new offense and for two prior offenses for which he was on probation at the time of committing the new offense. He also appeals the imposition of costs without notice and a hearing to determine his ability to pay.
We reverse the departure sentence upon the authority of Ree v. State, 565 So.2d 1329 (Fla. 1990), and Lambert v. State, 545 So.2d 838 (Fla. 1989).
We also reverse the imposition of costs without notice and hearing. Jenkins v. State, 444 So.2d 947 (Fla. 1984). The issue is preserved for review despite lack of a contemporaneous objection. Wood v. State, 544 So.2d 1004 (Fla. 1989); Outar v. State, 508 So.2d 1311 (Fla. 5th DCA 1987).
The opinion in Washington v. State, 564 So.2d 168 (Fla. 5th DCA 1990), will be helpful to the trial court in resentencing upon remand at which time reconsideration of the imposition of costs may be made after notice.
REVERSED and REMANDED.
HARRIS, J., concurs specially with opinion.
W. SHARP, J., dissents in part with opinion.
I agree that the record does not support the departure sentence in this case.
The trial judge's stated reason:
Timing of the commission of the offense in 88-8107 of sale of cocaine, in that said offense was committed within eight months after the defendant had been previously placed on probation in 87-5555.
is insufficient as a matter of law.
While our supreme court has held that departure may be based on the timing of the offense, it has consistently held that it must be the "timing of each offense in relation to prior offenses and the release from incarceration or other supervision." [Emphasis added]. State v. Simpson, 554 So.2d 506, 509 (Fla. 1989).
If you relate the new offense to the time the defendant was placed on probation, you do nothing more than depart because the new offense was committed while on probation. Since "status" has already been scored, it would be improper to also depart on this basis.
As pointed out in the dissent, the court also relied on "continuing, persistent and escalating" pattern of criminal activity as a reason for departure. However, as the dissent concedes, the record does not support an escalating pattern. And the court did not indicate an intention to depart merely on a continuing and persistent pattern.
I agree the sentence must be reversed.
I agree, and the state also concedes, that the court's assessment of costs must be reversed because of lack of notice. Wood v. State, 544 So.2d 1004 (Fla. 1989); Outar v. State, 508 So.2d 1311 (Fla. 5th DCA 1987). However, I would affirm the departure sentence because at least one of the trial judge's stated reasons is legally valid and is supported by the record: timing of the criminal offenses so as to show a persistent pattern of criminal activity. Williams v. State, 504 So.2d 392 (Fla. 1987).
The record shows Thompson committed aggravated battery in 1986, for which he was placed on community control. In 1987 he violated that community control, and was sentenced to prison for 24 months. Very shortly after release from prison (although the record does not give exact dates) in October of 1987, he committed a drug offense. He was put on probation. On October 1, 1988, only 8 months after his release on probation, Thompson committed two additional drug-related crimes.
Four felonies (three of which were drug-related) were committed within two years, the latter three coming twice, shortly after being released either from prison or having been placed on probation in lieu of a prison term. In State v. Jones, 530 So.2d 53 (Fla. 1988), the court said a departure sentence could be based on a showing of temporal proximity of crimes coupled with a "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." 530 So.2d at 56.
In my view, the facts in this case establish grounds to conclude Thompson's conduct demonstrates a persistent, if not escalating, pattern of dedicated criminal conduct. See also Brown v. State, 569 So.2d 1223 (Fla. 1990); State v. Simpson, 554 So.2d 506, 509 (Fla. 1989); Lipscomb v. State, 15 F.L.W. 2227 (Fla. 5th DCA September 6, 1990); Smith v. State, 566 So.2d 57 (Fla. 5th DCA 1990); Gore v. State, 559 So.2d 347, 348 (Fla. 2d DCA 1990). They should provide grounds to depart upwards from the recommended guidelines sentence beyond the available bump-up.