Rivero v. State

573 So. 2d 427 | Fla. Dist. Ct. App. | 1991

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 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,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.

1 . § 893.13(l)(a)(l), Fla.Stat. (1987).

2 . § 893.03(2)(a), Fla.Stat. (1987).

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

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