Opinion
No. 87-02878.
May 1, 1992. Rehearing Denied April 27, 1992.
James Marion Moorman, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Stephen A. Baker, Asst. Atty. Gen., Tampa, for appellee.
On remand from Williams [Lucious] v. State, 594 So.2d 290 (Fla. 1992), on the departure sentencing issue, we reconsider the remaining reasons for upward departure from the sentencing guidelines.
After revocation of probation, the trial judge sentenced the appellant to a departure sentence of two fifteen year consecutive terms of imprisonment for aggravated battery and third-degree murder. The sentencing guidelines recommended a sentence of seven to twelve years' imprisonment. The trial judge provided fourteen reasons for the sentencing departure. This court affirmed the sentence based on a second violation of probation as the reason for departure. Subsequently, on a certified question from this court, the supreme court held successive violations of probation to be an invalid reason for departure. Williams [Dennis] v. State, 594 So.2d 273 (Fla. 1992) (sentence may be bumped up one cell for each violation of probation).
Reviewing the remaining thirteen reasons provided for departure, we determine that only one valid reason supported the departure sentence. Citing Ballard v. State, 501 So.2d 1285 (Fla. 4th DCA 1986), approved, 506 So.2d 1033 (Fla. 1987), the trial judge found that the appellant had an escalating pattern of serious offenses. See Barfield v. State, 594 So.2d 259 (Fla. 1992) (escalating pattern of criminal conduct valid reason for departure). The trial judge read the appellant's chronology of prior offenses into the record at the sentencing hearing. The appellant had the following convictions:
DATE OFFENSE March 1970 Contempt of court, no driver's license, and no inspection sticker August 1970 Profanity, careless driving, and no driver's license September 1970 Resisting an officer January 1972 Possession of marijuana February 1973 Possession of stolen property January 1974 Shoplifting and petit theft July 1974 Profanity October 1974 Petit theft November 1974 Disorderly conduct April 1975 Loitering and prowling February 1983 Delivery and possession of marijuana July 1983 Sale and delivery of cocaine and possession of cocaine April 1985 Trespassing and battery August 1986 Aggravated battery (case No. 85-14052) August 1986 Third-degree murder (case No. 86-3358)This chronology shows an escalation from misdemeanor offenses to the violent felony offenses currently before this court: aggravated battery and third-degree murder. This escalation of criminal conduct supports the sentence imposed, because it has been demonstrated beyond a reasonable doubt that the trial judge would have imposed the same departure sentence absent the other invalid reasons for departure. See Albritton v. State, 476 So.2d 158 (Fla. 1985). Thus, we affirm the departure sentence.
SCHOONOVER, C.J., and CAMPBELL, J., concur.