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Hatten v. State

District Court of Appeal of Florida, Second District
Jun 12, 1991
581 So. 2d 238 (Fla. Dist. Ct. App. 1991)

Opinion

No. 88-03147.

June 12, 1991.

Appeal from the Circuit Court, Hillsborough County; Edward H. Ward, J.

Gwynne A. Young and Laura L. Dizney of Carlton, Fields, Ward, Emmanuel, Smith Cutler, P.A., Tampa, for appellant.

Willie Fred Hatten, Jr., pro se.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Barbara Arlene Fink, Asst. Atty. Gen., Miami, for appellee.


Willie Fred Hatten, Jr. appeals the judgment and sentence imposed upon him after he was found guilty of robbery. We affirm the judgment but reverse the sentence and remand for resentencing.

Fifty-eight days after his release from state prison for serving a sentence for armed robbery, the appellant committed a robbery. Following the appellant's conviction on the robbery charge, the sentencing judge imposed a sentence that departed from the guidelines. The reason stated for departure was that the court relied on the state's memorandum in support of a departure sentence. The memorandum requested that a departure sentence be imposed for the sole reason of the timing of the new offense in relation to the defendant's release from prison.

In order for timing of the offenses to be a valid guidelines departure reason, it must also be shown that the offenses demonstrate the defendant's involvement in a continuing and persistent pattern of criminal activity. Smith v. State, 579 So.2d 75 (Fla. 1991); State v. Jones, 530 So.2d 53 (Fla. 1988). The court's order does not find a continuing and persistent pattern of criminal activity, nor does the record support such a finding.

Accordingly, we affirm the appellant's judgment for robbery and reverse the departure sentence. The case is remanded for resentencing within the guidelines.

SCHOONOVER, C.J., and DANAHY and THREADGILL, JJ., concur.


Summaries of

Hatten v. State

District Court of Appeal of Florida, Second District
Jun 12, 1991
581 So. 2d 238 (Fla. Dist. Ct. App. 1991)
Case details for

Hatten v. State

Case Details

Full title:WILLIE FRED HATTEN, JR., APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: Jun 12, 1991

Citations

581 So. 2d 238 (Fla. Dist. Ct. App. 1991)