Lewis v. State

District Court of Appeal of Florida

Lewis v. State

558 So. 2d 170, 1990 Fla. App. LEXIS 1619, 1990 WL 26948

CourtDistrict Court of Appeal of Florida

DecidedMarch 15, 1990

DocketNo. 89-258

StatusPublished

Cited by3 cases

This text of 558 So. 2d 170 (Lewis 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

Lewis v. State, 558 So. 2d 170, 1990 Fla. App. LEXIS 1619, 1990 WL 26948 (Fla. Ct. App. 1990).

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Opinion

GRIFFIN, Judge.

This is an appeal from a guideline departure sentence. With one exception, the reasons given for departure were based on probation violations and are invalid. Lambert v. State, 545 So.2d 838 (Fla.1989); Ree v. State, 14 F.L.W. 565 (Fla. Nov. 16, 1989). The trial court also based departure on a “continuous and persistent and escalating pattern of criminal conduct” consisting of the commission of sale of cocaine offenses twice in a seven month period. This conduct does not constitute the escalating or persistent pattern of criminal conduct adequate to form a basis for departure. Maddox v. State, 553 So.2d 1380, 1382 (Fla. 5th DCA 1989). Accordingly, the defendant’s sentence in Case No. 88-8113 is vacated and the cause remanded for resentencing within the guidelines. The defendant’s sentence in Case No. 88-1847 is affirmed because it does not depart from the sentencing guidelines.

Sentence AFFIRMED in part VACATED in part; case REMANDED for resentenc-ing consistent with this opinion.

COBB and PETERSON, JJ., concur.

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GRIFFIN, Judge.

This is an appeal from a guideline departure sentence. With one exception, the reasons given for departure were based on probation violations and are invalid. Lambert v. State, 545 So.2d 838 (Fla.1989); Ree v. State, 14 F.L.W. 565 (Fla. Nov. 16, 1989). The trial court also based departure on a “continuous and persistent and escalating pattern of criminal conduct” consisting of the commission of sale of cocaine offenses twice in a seven month period. This conduct does not constitute the escalating or persistent pattern of criminal conduct adequate to form a basis for departure. Maddox v. State, 553 So.2d 1380, 1382 (Fla. 5th DCA 1989). Accordingly, the defendant’s sentence in Case No. 88-8113 is vacated and the cause remanded for resentencing within the guidelines. The defendant’s sentence in Case No. 88-1847 is affirmed because it does not depart from the sentencing guidelines.

Sentence AFFIRMED in part VACATED in part; case REMANDED for resentenc-ing consistent with this opinion.

COBB and PETERSON, JJ., concur.

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Bluebook (online)

558 So. 2d 170, 1990 Fla. App. LEXIS 1619, 1990 WL 26948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-state-fladistctapp-1990.

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