THOMAS RAYMOND HANKEY, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida Supreme Court held that economic hardship on a victim cannot justify departure from sentencing guidelines, but breach of trust can. The Court quashed the district court's affirmance and remanded for resentencing because the trial court relied on both permissible and impermissible departure reasons.
Economic hardship on a victim can never constitute a clear and convincing reason for departure. Emotional hardship may support departure only if the facts are credible and proven beyond a reasonable doubt—here, only blanket assertions were made, so this reason was impermissible. Breach of trust can constitute a clear and convincing reason for departure because it is not an inherent component of burglary and not already considered in guideline computations—the trial court properly found breach of trust here.
[1] Economic hardship on a victim cannot constitute a clear and convincing reason to support departure from sentencing guidelines.
[2] Emotional hardship on a victim may support departure from sentencing guidelines if the facts are credible and proven beyond a reasonable doubt.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Economic hardship on the victim can never constitute a clear and convincing reason to support departure.”
Establishes the core holding that victim economic hardship is categorically impermissible as a departure reason
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHankey was convicted of burglary of a dwelling and burglary of a structure. The trial court departed from sentencing guidelines, jumping six categorie…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Clear And Convincing Reasons cases and more on FLexlaw
ADKINS, Justice.
We have for review Hankey v. State, 458 So. 2d 1143 (Fla.5th DCA 1984), which directly and expressly conflicts with decisions of other district courts of appeal and this Court. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Hankey was convicted of one count of burglary of a dwelling and one count of burglary of a structure. Hankey elected to be sentenced under the guidelines. The trial court deviated from the guidelines, jumped six categories, and sentenced Han-key to consecutive five-year terms of imprisonment. The district court of appeal affirmed.
The trial court found two reasons to be “clear and convincing” and therefore warranting departure: (1) economic and emotional hardship on the victim and (2) abuse of trust.
As noted on numerous occasions, departures from the guidelines range should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating a sentence. Fla.R.Crim.P. 3.701(d)(ll). We will not determine if the trial court abused its discretion in finding that the above-mentioned reasons are in fact clear and convincing.
Economic hardship on the victim can never constitute a clear and convincing reason to support departure. If we were to allow this circumstance to justify departure we would be forced to uphold departure in nearly all theft and burglary situations since nearly all thefts and burglaries result in economic hardship on the victim. Such a result was obviously not intended when the guidelines were conceived. See State v. Mischler, 488 So. 2d 523 (Fla.1986).
Emotional hardship on the victim may, if the facts dictate, support departure. Davis v. State, 458 So. 2d 42 (Fla.4th DCA 1984); Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984). However, the facts supporting the reason must be credible and proven beyond a reasonable doubt. Mischler, at 525.
In this instance, the only evidence that the victim suffered emotional trauma is the blanket assertions of the trial court to that effect. Therefore, the trial court abused its discretion by departing from the guidelines on the basis of emotional hardship on the victim.
Breach of trust may constitute a clear and convincing reason to justify departure. See Steiner v. State, 469 So. 2d 179 (Fla. 3d DCA 1985); Gardener v. State, 462 So. 2d 874 (Fla. 2d DCA 1985). The guidelines do not explicitly prohibit the trial judge from departing on the basis of breach of trust, breach of trust is not an inherent component of the crime of burglary, and breach of trust is not already considered in the computation of the guidelines.
The trial court did not err in finding that the defendant’s breach of trust warranted a departure in this instance. The facts indicate that the victim gave Hankey a job as a clean up man and entrusted him with a key to fulfill his duties. Hankey abused this position of trust by using the key to enter the victim’s business after hours. Hankey then proceeded to steal money and other items from both the business establishment and the victim’s residence located approximately 200 yards east of the business. Clearly, the trial court did not abuse its discretion in finding that Han-key breached the trust placed in him by the victim.
We are left with both permissible and impermissible reasons in support of departure. Therefore, upon remand, the sentence should be reversed unless the state is able to show beyond a reasonable doubt that the absence of the impermissible reasons would not have affected the departure sentence. State v. Young, 476 So. 2d 161 (Fla.1985).
The trial court failed to state its reasons in support of departure in writing. Therefore, we note that if the trial court decides to depart on remand, it must state its reasons for doing so in writing. Fla.R.Crim. Pro. 3.701(d)(ll).
Accordingly, we quash the decision of the district court and we remand with directions to further remand to the trial court for resentencing.
It is so ordered.
BOYD, C.J., and OVERTON, Mc- . DONALD, EHRLICH and SHAW, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (50 total)
-
State v. Rousseau, 509 So. 2d 281 (Fla. 1987)…g from extraordinary circumstances which are clearly not inherent in the offense charged may properly serve as a clear and convincing reason for departure. [*284] 498 So. 2d at 1253. For this proposition we relied on our decision in Hankey v. State, 485 So. 2d 827 (Fla.1986), wherein we recognized that, if factually supported, “emotional hardship” on the victim may support departure. Id. at 828. In Hankey we relied on two district court opinions, Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984), approved, 47…
-
Casteel v. State, 498 So. 2d 1249 (Fla. 1986)…ent component of the crime of sexual battery. Psychological trauma arising from extraordinary circumstances which are clearly not inherent in the offense charged may properly serve as a clear and convincing reason for departure. See Hankey v. State, 485 So. 2d 827 (Fla.1986); see also Davis v. State, 489 So. 2d 754, 757 (Fla. 1st DCA 1986). The same reasoning leads us to the conclusion that the emotional trauma experienced by the victim’s son who witnessed the sexual assault on his mother may also serve as a…
-
Davis v. State, 517 So. 2d 670 (Fla. 1987)…en into account in the third reason and may not be considered twice. The second reason for departure, abuse or breach of trust, has been found to constitute a clear and convincing reason to justify departure in some situations. See Hankey v. State, 485 So. 2d 827 (Fla.1986) (burglary victim gave defendant job and entrusted him with key to fulfill duties and defendant abused position by using key to enter place of business after hours and steal money and items of value); Gardener [*674] v. State, 462 So. 2d 8…
Previewing 3 of 50 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- State v. Young, 476 So. 2d 161 (Fla. 1985)
- Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984)
- Steiner v. State, 469 So. 2d 179 (Fla. 3d DCA 1985)
- Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984)
- Hankey v. State, 458 So. 2d 1143 (Fla. 5th DCA 1984)
- Gardener v. State, 462 So. 2d 874 (Fla. 2d DCA 1985)