Hogan v. State

719 So. 2d 957, 1998 Fla. App. LEXIS 12834, 1998 WL 712692
CourtDistrict Court of Appeal of Florida
DecidedOctober 14, 1998
DocketNo. 96-2224
StatusPublished
Cited by1 cases

This text of 719 So. 2d 957 (Hogan v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hogan v. State, 719 So. 2d 957, 1998 Fla. App. LEXIS 12834, 1998 WL 712692 (Fla. Ct. App. 1998).

Opinion

SHAHOOD, Judge.

Appellant, Johnnie Hogan, appeals from his sentence to life imprisonment with a three-year mandatory minimum for second degree murder with a firearm and a concurrent sentence of fifteen years in prison for possession of a firearm by a convicted felon. The sole issue raised by appellant in this appeal is whether the trial court erred in departing from the sentencing guidelines by imposing a life sentence for appellant’s conviction of second degree murder. We affirm appellant’s upward departure sentence.

Appellant was charged with first degree murder in count I and possession of a firearm by a convicted felon in count II. The trial court granted appellant’s motion to sev[958]*958er the two counts and appellant was first tried by jury on the charge of first degree murder. Appellant was found guilty by the jury of the lesser included offense of murder in the second degree. Further, the jury specifically found that during the commission of the crime, appellant possessed a firearm. As a result, appellant entered a plea of no contest to count II, possession of a firearm by a convicted felon. The state then filed its notice of intent to seek enhanced penalties under the habitual offender statute, section 775.084, Florida Statutes.

Appellant’s sentencing guidelines score-sheet provided for a recommended sentence of 228.6 months, 19$ years, in Florida State Prison, with a sentencing range of 171.4 months (14.3 years) to 285.7 months (23.9 years) in prison. The trial court adjudicated appellant guilty of second degree murder with a firearm and possession of a firearm by a convicted felon.

At the sentencing hearing, the state requested that appellant be sentenced as an habitual offender or that the trial court enter a sentence departing from the guidelines. Among the grounds argued for departure under section 921.0016, Florida Statutes, the state argued that under subsection 921.0016(3)(p), appellant was not amenable to rehabilitation or supervision as evidenced by an escalating pattern of criminal conduct as described in Florida Statutes. In support thereof, the state recited appellant’s past adult criminal history into the record. The state also pointed out that appellant had four past violations of probation. Appellant had nine prior misdemeanor convictions for crimes such as: theft, resisting a merchant, resisting arrest without violence, disorderly conduct, battery and failure to appear.

In 1988, appellant was convicted of his first felony offense of grand theft, a third degree felony. In July, October and December 1989, appellant was again convicted of misdemeanor theft. In 1990, appellant was convicted of burglary of a conveyance and grand theft, both third degree felonies. Appellant then violated his probation and community control. In 1991, appellant was convicted of carrying a concealed firearm and possession of a firearm by a convicted felon, both third degree felonies. Thereafter, from 1993 through 1994, appellant’s additional prior offenses included misdemeanor convictions for possession of marijuana under 20 grams, disorderly intoxication, contempt of court and DUI.

Based on the above priors, the state argued the following:

Your Honor, based on the escalating pattern here we have an individual, at least as far as the felonies are concerned, who has gone from non-violent to violent. He’s also gone from third degree felonies now to a life felony as Your Honor has determined — where actually there is one second degree felony, the possession of a firearm by a convicted felon. Has gone from misdemeanors to F3’s to F2’s and to a life felony. The State believes that this is a valid reason to exceed the guidelines ...

In response, appellant’s attorney argued:

... With regards to the escalating pattern of criminal activity I’d submit to the Court, I believe there’s a recent Supreme Court case and I want to say it’s Darosol (phonetic) [sic] off the top of my head. And I think that [Darrisaw ] addresses the temporal proximity of crimes committed by a Defendant in this escalating pattern of criminal activity. And again I’d submit to the Court that according to the record that both the State and I have in front of us the last felony conviction that ... Appellant had was in 1991. And those were essentially victimless crimes. That crime— those crimes being carrying a concealed firearm and possession of a firearm by a convicted felon. Those crimes both occurred on 3/1/91, at least that’s what the disposition reflects, perhaps it’s a little bit late to question that, but I — I would question why he received convictions for carrying a concealed firearm and possession of a firearm by a convicted felon at the same time since the possession of the firearm by the convicted felon appears to be sub-soon — I mean the carrying a concealed firearm seems to be [subsumed] in the offense of possession of a firearm by a convicted felon. Nevertheless, I don’t think you have an adequate temporal proximity here to justify an upward departure [959]*959in the guidelines. Again at best you have someone who had committed a number of misdemeanor offenses, very few, if any of the offenses involve any — any violence or force.

In departing from the guidelines on grounds that the “Defendant is not amenable to rehabilitation or supervision as evidence by an escalating pattern of criminal conduct as described in s. 921.001(8)” the court reasoned:

... I think the facts here are significantly different [from Darrisaw ]. I’m looking at an adult record here that is quite extensive and quite frankly other than first degree murder there — there isn’t anything more violent than second degree murder. I do think that he qualifies under 921.001 subsection (8), an escalating pattern of criminal conduct may be evidenced by a progression from non-violent to violent crimes, but also a progression of increasingly violent crimes or a pattern of increasingly serious criminal activity. Now I don’t believe that I’m required to itemize that point by point on the record by reading out loud the adult prior history, as well as the juvenile prior history. But it’s all here laid out in — in the prior record in the PSI. I am taking judicial notice of that and I do think that he qualifies and I will exceed the guidelines based on the extensive— excuse me, based on the fact that I just mentioned that he has shown that he is not amenable to rehabilitation or supervision as evidenced by an escalating pattern of criminal conduct as defined in 921.001 subsection (8) and I am contemporaneously checking off that box on the form departure reasons here and will staple it to the guidelines score sheet.

Based on such finding, the trial court sentenced appellant on count I, second degree murder with a firearm, to life in prison with a three-year mandatory minimum, and on count two, possession of a firearm by a convicted felon, to fifteen years in prison without a mandatory minimum, to run concurrently.

We affirm the upward departure sentence on the ground that the record demonstrates an “escalating pattern of criminal conduct” within the meaning of section 921.001(8), Florida Statutes (1995).

Section 921.001(8), provides as follows:

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Related

Allen v. State
751 So. 2d 56 (District Court of Appeal of Florida, 1999)

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Bluebook (online)
719 So. 2d 957, 1998 Fla. App. LEXIS 12834, 1998 WL 712692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hogan-v-state-fladistctapp-1998.