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573 So. 2d 427

Rivero v. State

District Court of Appeal of Florida

Decided January 31, 1991

District Court of Appeal of Florida · decided 1991-01-31

Cited by 2 later decisions — most recently January 1992

2 state decisions

Relies on 570 So. 2d 1013 - Dodd v. State · Brown v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1991-01-31

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W. SHARP, Judge.

¶1Rivero 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 deliv*428ery of cocaine and committed this offense of delivery of cocaine on 10/29/88, less than 30 days after released.

¶2Although 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).

¶3VACATE SENTENCE; REMAND.

GRIFFIN, J., concurs. GOSHORN, J., dissents without opinion.

¶4. § 893.13(l)(a)(l), Fla.Stat. (1987).

¶5. § 893.03(2)(a), Fla.Stat. (1987).

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

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

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