Tucker v. State
Tucker v. State
Opinion of the Court
Tucker appeals from his judgment and sentence for having burglarized a structure.
To establish an escalating pattern of criminal activity the state urged the trial court to consider a 1991 forgery and uttering a forgery charge, a grand theft in 1992, as well as an attempted murder and armed robbery in 1993. The trial court found that escalating criminal activity had occurred because Tucker started with crimes against property and ended with crimes against people “in a most heinous type of matter which occurred in this particular case.”
The problem in this case is that the jury acquitted Tucker of the attempted murder and armed robbery. Thus, Tucker’s criminal record shows no progression from property crimes to violent crimes against other people. Crimes for which a defendant has been acquitted cannot be considered in imposing a departure sentence. Fla. R.Crim.P. 3.701.d.ll.
Nor does it appear Tucker’s criminal record shows a pattern of increasing seriousness. Tucker’s prior crimes were third degree felonies and one misdemeanor. The current crime for which Tucker is being sentenced is a third degree felony. This is not sufficient to show “increasingly serious” criminal activity. See Lowe v. State, 641 So.2d 937 (Fla. 4th DCA 1994) (crimes that were of the same character — robbery with a firearm — did not show an escalating pattern sufficient to support departure); Smith v. State, 603 So.2d 95 (Fla. 2d DCA 1992) (no escalating pattern is reflected by the defendant’s prior offenses and his present offense, all of which were for delivery of cocaine and were all second degree felonies).
The state also argues that Tucker’s prior felonies were committed in “close temporal proximity” to each other and to the present offenses and that the prior misdemeanor occurred within three years of the oldest felony and thus occurred with close temporal proximity of that offense.
We conclude that the trial court erred in imposing a departure sentence. See Smith (a persistent pattern of criminality is insufficient for departure; the pattern must also be escalating). Accordingly, we vacate the sentence and remand for resentencing within the guidelines.
Sentence VACATED; REMANDED.
. § 810.02, Fla.Stat. (1993).
. In the alternative, the state argues that temporal proximity of prior offenses is not necessary to
Case-law data current through December 31, 2025. Source: CourtListener bulk data.