GARCIA v. STATE (2000)

District Court of Appeal of Florida,Second District.

Alfredo GARCIA, Appellant, v. STATE of Florida, Appellee.

No. 2D98-4383.

Decided: February 18, 2000

Mark Lipinski of Mark Lipinski, P.A., Bradenton, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

Alfredo Garcia challenges his upward departure sentences imposed after he pleaded nolo contendere to sale of cocaine and sale and delivery of marijuana. As justification for the departure the circuit court cited Garcia's escalating pattern of criminal activity and the temporal proximity of his convictions. After a thorough review of Garcia's present and prior convictions, we conclude that the convictions did not meet the definition of “escalating” so as to justify the departure. See § 921.001(8), Fla. Stat. (1997); State v. Darrisaw, 660 So.2d 269 (Fla.1995)(holding that if offenses meet definition of “escalating,” then “pattern” requirement can be satisfied either where offenses are committed in temporal proximity or are similar to each other).

We find no merit in Garcia's argument that we should instruct the circuit court to impose a downward departure sentence. Accordingly, we vacate the ten-year sentences imposed on both counts and remand for resentencing within the guidelines.

Reversed and remanded with directions.

NORTHCUTT, Judge.

BLUE, A.C.J., and WHATLEY, J., Concur.

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