Opinion
No. 91-00838.
March 20, 1992.
Appeal from the Circuit Court, Pinellas County, Richard A. Luce, J.
James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Dale E. Tarpley, Asst. Atty. Gen., Tampa, for appellee.
The appellant challenges his judgment and sentence for sale of a counterfeit substance. We have considered his arguments on appeal, but find merit only in the issue concerning the imposition of a guidelines departure sentence.
The appellant was sentenced to four and one-half years' incarceration, which was a departure from the guidelines recommendation. As its reason for departure, the trial court cited a "continuing and escalating pattern of narcotics-related crimes and committing [sic] similar offense within one year of completing state prison sentence for sale of [cocaine]." This reason was based upon prior convictions, entered May 10, 1989, for two counts of sale of cocaine, second degree felonies. The instant offense, a third-degree felony, was committed on March 6, 1990, which was within six months of the appellant's release from prison on the prior offenses.
Timing may be a valid reason for departure if based upon facts that demonstrate an escalating and persistent pattern of criminal activity. See Smith v. State, 579 So.2d 75 (Fla. 1991). An escalating pattern of criminal activity may be demonstrated in three ways: "1) a progression from nonviolent to violent crimes; 2) a progression of increasingly violent crimes; or 3) a pattern of increasingly serious criminal activity." Barfield v. State, 594 So.2d 259 (Fla. 1992). This third category is indicated if the current offense, when compared to previous offenses, involves an increase in the degree of the crime or the penalty which may be imposed. Id.
In this case, the offenses were closely related in time, but did not demonstrate an escalating pattern of criminal activity. The appellant's prior convictions were for second-degree felonies, while the current conviction was for a third-degree felony. Accordingly, the trial court's reason for departing from the recommended guidelines sentence is not supported by the record.
Therefore, we affirm the appellant's conviction, but remand for resentencing within the guidelines.
FRANK, A.C.J., and CURRY, CHARLES B., Associate Judge, concur.