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Rivero v. State

Citations: 573 So. 2d 427; 1991 Fla. App. LEXIS 661; 1991 WL 8420Docket: No. 90-651

Court: District Court of Appeal of Florida; January 30, 1991; Florida; State Appellate Court

Narrative Opinion Summary

In this case, the appellant, having been convicted by a jury for delivery and possession of cocaine, challenges the trial court's imposition of concurrent sentences of 15 and 25 years, which exceeded the established guideline range. The trial judge initially justified the departure by highlighting the appellant's commission of a new cocaine delivery offense within 30 days of release from a prior 2.5-year incarceration for a similar crime. Despite precedents permitting consideration of post-release offense timing as indicative of recurrent criminal behavior, the appellate court found that the trial court did not sufficiently establish a persistent pattern of criminal conduct. Consequently, the appellate court vacated the sentences and remanded the case for further elucidation regarding the presence of such a pattern. The decision was concurred by Judge Griffin, while Judge Goshorn dissented, albeit without a written opinion.

Legal Issues Addressed

Appellate Review of Sentencing

Application: The appellate court vacated the sentence due to insufficient justification for a departure from sentencing guidelines and remanded the case for further clarification.

Reasoning: As a result, the appellate court determined that the justification for the sentence was insufficient. Consequently, the court vacated Rivero's sentence and remanded the case for clarification on the existence of a persistent pattern of criminal activity.

Sentencing Departure Justification

Application: The trial court's decision to impose a sentence exceeding the guideline range was based on the timing of the new offense occurring shortly after release, but lacked evidence of a persistent pattern of criminal conduct.

Reasoning: The trial judge justified the sentence departure by noting that Rivero committed the new cocaine delivery offense less than 30 days after being released from the Department of Corrections, where he had served 2.5 years for a similar offense.