Lewis v. State

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

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.