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Rivero v. State

District Court of Appeal of Florida, Fifth District
Jan 31, 1991
573 So. 2d 427 (Fla. Dist. Ct. App. 1991)

Opinion

No. 90-651.

January 31, 1991.

Appeal from the Circuit Court for Orange County, Gary L. Formet, Sr., J.

James B. Gibson, Public Defender, and Glen P. Gifford, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Nancy Ryan, Asst. Atty. Gen., Daytona Beach, for appellee.


Rivero appeals from his sentences imposed after a jury convicted him of delivery of cocaine, and possession of a controlled substance. 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 2 1/2 years for delivery 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, nevertheless, the trial judge must still find a pattern of criminal conduct exists. 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).

Lipscomb v. State, 15 F.L.W. 2227, 1990 WL 127340 (Fla. 5th DCA September 6, 1990).

Dodd v. State, 570 So.2d 1013 (Fla. 5th DCA 1990).

VACATE SENTENCE; REMAND.

GRIFFIN, J., concurs.

GOSHORN, J., dissents without opinion.


Summaries of

Rivero v. State

District Court of Appeal of Florida, Fifth District
Jan 31, 1991
573 So. 2d 427 (Fla. Dist. Ct. App. 1991)
Case details for

Rivero v. State

Case Details

Full title:AMADOR RIVERO, JR., APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fifth District

Date published: Jan 31, 1991

Citations

573 So. 2d 427 (Fla. Dist. Ct. App. 1991)

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