Tessier v. State

District Court of Appeal of Florida

Tessier v. State

730 So. 2d 761, 1999 Fla. App. LEXIS 3322, 1999 WL 147375

CourtDistrict Court of Appeal of Florida

DecidedMarch 19, 1999

DocketNo. 97-2817

StatusPublished

Cited by1 cases

This text of 730 So. 2d 761 (Tessier 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.

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Tessier v. State, 730 So. 2d 761, 1999 Fla. App. LEXIS 3322, 1999 WL 147375 (Fla. Ct. App. 1999).

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Opinion

THOMPSON, J.

Nathan Tessier appeals the sentences imposed for 12 offenses to which he pled either guilty or nolo contendere. Two of the sentences were imposed after Tessier violated his probation. We affirm the VOP sentences as Tessier failed to properly preserve the asserted error for appeal. See Fla. R.App. P. 9.140(d); § 924.051(3), Fla. Stat. (1997); Maddox v, State, 708 So.2d 617 (Fla. 5th DCA), rev. granted, 718 So.2d 169 (Fla.1998).

The trial court imposed departure sentences of five years in prison for the two counts of burglary of a conveyance (case numbers 97-14287 and 97-14686). The reason the court gave for the upward departures was Tessier’s escalating pattern of criminal conduct. Such a pattern is demonstrated by (1) a progression from nonviolent to violent crimes, (2) a progression of increasingly violent crimes, or (3) a pattern of increasingly serious criminal activity. § 921.001(8), Fla. Stat. (1997); Barfield v. State, 594 So.2d 259 (Fla.1992). Tessier’s criminal history includes, in chronological order: grand theft motor vehicle; dealing in stolen property; carrying a concealed firearm; resisting arrest without violence; forgery; uttering a forgery; resisting arrest with violence; burglary of a conveyance; petit theft. While Tessier displays a pattern of criminal conduct, it is not an escalating pattern. The trial court therefore erred in imposing the departure sentences for burglary of a conveyance. See State v. Darrisaw, 660 So.2d 269 (Fla.1995); Taylor v. State, 601 So.2d 540 (Fla.1992); Barfield; Smith v. State, 579 So.2d 75 (Fla.1991).

Accordingly, we vacate the five-year prison sentences in case numbers 97-14287 and 97-14686 and remand for resentencing within the guidelines. The remaining sentences on appeal are affirmed.

AFFIRMED in part; VACATED in part and REMANDED with directions.

W. SHARP and PETERSON, JJ., concur.

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THOMPSON, J.

Nathan Tessier appeals the sentences imposed for 12 offenses to which he pled either guilty or nolo contendere. Two of the sentences were imposed after Tessier violated his probation. We affirm the VOP sentences as Tessier failed to properly preserve the asserted error for appeal. See Fla. R.App. P. 9.140(d); § 924.051(3), Fla. Stat. (1997); Maddox v, State, 708 So.2d 617 (Fla. 5th DCA), rev. granted, 718 So.2d 169 (Fla.1998).

The trial court imposed departure sentences of five years in prison for the two counts of burglary of a conveyance (case numbers 97-14287 and 97-14686). The reason the court gave for the upward departures was Tessier’s escalating pattern of criminal conduct. Such a pattern is demonstrated by (1) a progression from nonviolent to violent crimes, (2) a progression of increasingly violent crimes, or (3) a pattern of increasingly serious criminal activity. § 921.001(8), Fla. Stat. (1997); Barfield v. State, 594 So.2d 259 (Fla.1992). Tessier’s criminal history includes, in chronological order: grand theft motor vehicle; dealing in stolen property; carrying a concealed firearm; resisting arrest without violence; forgery; uttering a forgery; resisting arrest with violence; burglary of a conveyance; petit theft. While Tessier displays a pattern of criminal conduct, it is not an escalating pattern. The trial court therefore erred in imposing the departure sentences for burglary of a conveyance. See State v. Darrisaw, 660 So.2d 269 (Fla.1995); Taylor v. State, 601 So.2d 540 (Fla.1992); Barfield; Smith v. State, 579 So.2d 75 (Fla.1991).

Accordingly, we vacate the five-year prison sentences in case numbers 97-14287 and 97-14686 and remand for resentencing within the guidelines. The remaining sentences on appeal are affirmed.

AFFIRMED in part; VACATED in part and REMANDED with directions.

W. SHARP and PETERSON, JJ., concur.

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730 So. 2d 761, 1999 Fla. App. LEXIS 3322, 1999 WL 147375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tessier-v-state-fladistctapp-1999.

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