DIANE C. RIEBLING DIXON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the reasons provided by the trial court for departing from the sentencing guidelines were not clear and convincing. The court held that the victim's relationship to the defendant, lack of remorse, speculation about future conduct, and counts charged but not convicted upon are invalid reasons for departure.
[1] The special relationship between a defendant and their employer is an inherent component of the crime of theft and cannot be used as a clear and convincing reason to depa…
[2] Lack of remorse is not a valid reason for departing from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceDixon appealed a departure sentence for grand theft after pleading guilty. The trial judge provided four reasons for departing from the sentencing gui…
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[*411] SHARP, J.
Dixon appeals from a departure sentence totaling ten years imprisonment after she pled guilty to ten counts of grand theft of the second degree.1 The presumptive sentence range under the guidelines was any nonstate prison sanction and a ten-year sentence represents a seven cell departure.
The trial judge’s order explaining his reasons for departure is in the form of a two-page narrative. We point out that use of a narrative format is not the best way to indicate reasons for departure. It is more useful, for purposes of review, if the written reasons are in the form of a clearly delineated list. The reasons for departure provided by the judge in this case in his narrative can be summarized as follows:
(1) The victim in this case was the defendant’s employer, for whom defendant worked as a bookkeeper and secretary. Defendant embarked upon a scheme over a period of time to bilk her employer who trusted her. (2) Lack of remorse.
(3) There is no doubt in the mind of the trial judge that this defendant will again engage in criminal conduct.
(4) The defendant was charged with 48 counts of violating the law.
None of these are valid clear and convincing reasons for departure. Reason (1) was rejected by the Florida Supreme Court in State v. Mischler, 488 So. 2d 523 (Fla.1986). In Mischler, the supreme court considered the following question certified by the Fourth DCA as being a question of great public importance:
Does the theft by a bookkeeper of a major portion of her employer’s assets constitute a clear and convincing reason to depart from the guidelines and aggravate a sentence?
488 So. 2d at 523. The supreme court agreed with the district court and answered the question in the negative. In so holding, the Florida Supreme Court explained:
[T]he special relationship between the defendant and her employer is an inherent component of the crime for which she was convicted and cannot be used to justify departure. Further, as noted below, “[w]ere we to uphold a departure from the guidelines in this case, it would serve as authority to do the same in most instances of embezzlement, a result obviously not intended when the guidelines were conceived. 458 So. 2d at 40.
Moreover, if the sentencing commission had intended to impose a harsher sentence on those convicted of embezzlement as opposed to theft it would have placed embezzlement in a different category than theft for purposes of establishing a score under the sentencing guidelines.
488 So. 2d at 526.
Reason (2) is also invalid. Parker v. State, 481 So. 2d 560 (Fla. 5th DCA 1986); Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985). Reason (3) is unsupported by the record, particularly in light of the fact that Dixon had no record prior to this case. In addition, speculation about possible conduct is not a valid reason for departure. McBride v. State, 477 So. 2d 1091 (Fla. 4th DCA 1985); Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984), aff'd, 477 So. 2d 565 (Fla.1985); Lindsey v. State, 453 So. 2d 485 (Fla. 2d DCA 1984). As to reason (4), Dixon was charged with forty-eight counts but was only convicted of ten. Reasons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained. Fla.R.Crim.P. 3.701(d)(ll).
Since the reasons for departure given by the trial court are not valid, clear or convincing reasons, we vacate the departure sentence and remand the case for resentencing.
VACATED AND REMANDED.
ORFINGER and COBB, JJ., concur. . § 812.014, Fia.Stat. (1983).
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Cited By (11 total)
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Nivaldo Echevarria v. State, 492 So. 2d 1146 (Fla. 3d DCA 1986)…ged, see Whitfield v. State, 490 So. 2d 1358 (Fla. 5th DCA 1986), and Echevarria’s involvement with the cocaine laboratory, an offense expressly negated by the jury’s verdict. See Crofton v. State, 491 So. 2d 317 (Fla. 1st DCA 1986); Dixon v. State, 492 So. 2d 410 (Fla. 5th DCA 1986); Baxter v. State, 488 So. 2d 647 (Fla. 5th DCA 1986); Allen v. State, 479 So. 2d 257 (Fla. 2d DCA 1985). For the same reasons, the trial court’s implicit finding of extreme risk of harm to others is improper. Furthermore, the tr…
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Arden M. Merckle v. State, 512 So. 2d 948 (Fla. 2d DCA 1987)…basis for departure. While the use of the narrative format is not unacceptable, it is more useful, for purposes of review, if the trial court provides written reasons for departure in the form of a clearly delineated itemization. See Dixon v. State, 492 So. 2d 410 (Fla. 5th DCA 1986). We think the trial court’s reasons here can be summarized as follows: 1. The defendant abused his status as chief circuit judge, with administrative control over other judges in the circuit, by accepting a bribe of money in exc…
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Rubin v. State, 697 So. 2d 161 (Fla. 3d DCA 1997)…court cannot use an inherent component of the crime in question to justify departure. See State v. Mischler, 488 So. 2d 523, 525 (Fla.1986), superseded by statute on other grounds, Felts v. State, 537 So. 2d 995 (Fla. 1st DCA 1988); Dixon v. State, 492 So. 2d 410, 411 (Fla. 5th DCA 1986); Steiner v. State, 469 So. 2d 179, 181 (Fla. 3d DCA), review denied, 479 So. 2d 118 (Fla.1985); Baker v. State 466 So. 2d 1144, 1145 (Fla. 3d DCA 1985). Since economic loss is an inherent component of every theft, the amount…
Previewing 3 of 11 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)
- Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984)
- Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985)
- Lindsey v. State, 453 So. 2d 485 (Fla. 2d DCA 1984)
- State v. Davis, 477 So. 2d 565 (Fla. 1985)
- Alphonse McBRIDE v. State, 477 So. 2d 1091 (Fla. 4th DCA 1985)
- Parker v. State, 481 So. 2d 560 (Fla. 5th DCA 1986)