Rivero v. State

District Court of Appeal of Florida

Rivero v. State

573 So. 2d 427, 1991 Fla. App. LEXIS 661, 1991 WL 8420

CourtDistrict Court of Appeal of Florida

DecidedJanuary 31, 1991

DocketNo. 90-651

StatusPublished

Cited by2 cases

This text of 573 So. 2d 427 (Rivero 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

Rivero v. State, 573 So. 2d 427, 1991 Fla. App. LEXIS 661, 1991 WL 8420 (Fla. Ct. App. 1991).

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Opinion

W. SHARP, Judge.

Rivero appeals from his sentences imposed after a jury convicted him of delivery of cocaine,¹ and possession of a controlled substance.² He received concurrent 15 and 25 year sentences, which departed above the permitted range under the guidelines. The reason given for departure was:

Defendant released from DOC on 10/6/88 after serving 2Vh years for deliv[428]*428ery of cocaine and committed this offense of delivery of cocaine on 10/29/88, less than 30 days after released.

Although this court has held that the commission of one offense shortly after release from prison may be relied upon as establishing (in part) a persistent pattern of criminal activity,³ nevertheless, the trial judge must still find a pattern of criminal conduct exists.⁴ Here, the trial judge merely finds temporal proximity of the two offenses. That is not enough to constitute a “persistent pattern.” Because we cannot assume that the trial judge found a persistent pattern, we vacate the sentence and remand for the purposes of clarification. Brown v. State, 570 So.2d 1070 (Fla. 5th DCA 1990).

VACATE SENTENCE; REMAND.

GRIFFIN, J., concurs. GOSHORN, J., dissents without opinion.

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W. SHARP, Judge.

Rivero appeals from his sentences imposed after a jury convicted him of delivery of cocaine,¹ and possession of a controlled substance.² He received concurrent 15 and 25 year sentences, which departed above the permitted range under the guidelines. The reason given for departure was:

Defendant released from DOC on 10/6/88 after serving 2Vh years for deliv[428]*428ery of cocaine and committed this offense of delivery of cocaine on 10/29/88, less than 30 days after released.

Although this court has held that the commission of one offense shortly after release from prison may be relied upon as establishing (in part) a persistent pattern of criminal activity,³ nevertheless, the trial judge must still find a pattern of criminal conduct exists.⁴ Here, the trial judge merely finds temporal proximity of the two offenses. That is not enough to constitute a “persistent pattern.” Because we cannot assume that the trial judge found a persistent pattern, we vacate the sentence and remand for the purposes of clarification. Brown v. State, 570 So.2d 1070 (Fla. 5th DCA 1990).

VACATE SENTENCE; REMAND.

GRIFFIN, J., concurs. GOSHORN, J., dissents without opinion.

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Bluebook (online)

573 So. 2d 427, 1991 Fla. App. LEXIS 661, 1991 WL 8420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivero-v-state-fladistctapp-1991.

Opinion

W. SHARP, Judge.

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