Opinion
No. 86-2514.
August 5, 1988.
Appeal from the Circuit Court, Hillsborough County, M. Wm. Graybill, J.
James Marion Moorman, Public Defender, and John T. Kilcrease Jr., Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and James A. Young, Asst. Atty. Gen., Tampa, for appellee.
On September 12, 1986, defendant Anthony Bogan was found guilty of armed robbery and sentenced to life imprisonment. His sentencing guidelines scoresheet showed a recommended range of nine to twelve years in prison. In this appeal the defendant argues that the trial court's departure from the guidelines was not supported by valid reasons. We agree.
The trial judge filed three written reasons for departure: (1) defendant is an habitual felony offender, (2) defendant's extensive background of criminal activity indicating an escalating pattern of criminal conduct, and (3) failure of previous attempts to rehabilitate the defendant. The state concedes that the first reason is not valid. Whitehead v. State, 498 So.2d 863 (Fla. 1986). The third reason is also invalid. Baker v. State, 517 So.2d 753 (Fla. 2d DCA 1987). An escalating pattern of criminal activity, the trial court's second reason, can be a valid reason for departure when supported by the facts. Keys v. State, 500 So.2d 134 (Fla. 1986) (defendant's crimes escalated from crimes against property to violent crimes against persons).
Although the trial judge departed from the guidelines based on defendant's convictions of several felonies which occurred in 1982 and the instant offense, which occurred in 1986, we do not find that the defendant's behavior presents an escalating pattern within the teachings of Keys.
Accordingly, we affirm the defendant's conviction but vacate the sentence and remand for resentencing within the recommended range of the sentencing guidelines.
HALL and PARKER, JJ., concur.