STEVEN KIGAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kigar appeals his departure sentence for second-degree grand theft, challenging the trial judge's reasons for imposing 2⅝ years imprisonment instead of the guideline non-state prison sanction. The court affirms, holding that the judge properly departed based on subsequent offenses not scored and breach of victim trust, with the latter being valid in ordinary theft cases.
The court affirmed the departure sentence. Subsequent offenses not scored is a sufficient clear and convincing reason for departure. Breach of trust is not an inherent component of ordinary theft and thus is a valid basis for departure, distinguishing it from embezzlement. Prior incarceration failed to deter is not valid because prior record is incorporated into the scoresheet.
[1] A subsequent offense not scored is a valid reason for a departure sentence.
[2] Breach of victim's trust may be a valid reason for departure sentence when not an inherent component of the crime.
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Join FLexlaw to unlock all legal intelligence“Breach of trust is not an inherent component of the type of theft commonly referred to as stealing, although it is sometimes present, and we do not read Mischler as prohibiting departure based on a breach of trust in the ordinary theft case.”
Establishes that breach of trust can be valid grounds for departure in ordinary theft, distinguishing it from embezzlement where it is inherent.
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Join FLexlaw to unlock all legal intelligenceKigar, a homeless transient, was befriended by elderly victims who provided him housing, employment assistance, and help obtaining a motorcycle loan. …
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ORFINGER, Judge.
Kigar appeals from a departure sentence after pleading guilty to second degree grand theft. Kigar was a homeless transient who was befriended by the elderly victims, who provided him with room and board in exchange for some yard work. They helped him obtain employment and co-signed a loan so that he could purchase a motorcycle. Kigar rewarded their kindness by stealing some of their valuable antique jewelry and cameras. He was apprehended in New Mexico some time later, having served time there for a subsequent crime.
The trial judge sentenced him to 2⅝ years in prison, a two cell upward departure from the recommended “non-state prison sanction,” to be followed by 2lh years of probation, and entered a written order specifying his reasons for departure, as follows:
1). Subsequent offenses not scored.
Davis v. State, 455 So. 2d 602 (5DCA 84)
2). Breach of victim’s trust.
3). Prior incarceration failed to deter defendant.
Jean v. State, 455 So. 2d 1083 (2DCA 84) Any one of which would be sufficient for departure.
Reason number three is not a valid reason for departure because a defendant’s prior record is incorporated into the scoresheet. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). The subsequent offense not scored is a sufficient clear and convincing reason for departure. Davis v. State, 455 So. 2d 602 (Fla. 5th DCA 1984). The guidelines do not prohibit a trial judge from departing on the basis of breach of the victims’ trust where the breach of trust is not an inherent component of the crime for which the defendant was convicted. Hankey v. State, 485 So. 2d 827 (Fla.1986). Breach of trust is an inherent component of that form of theft formerly known as embezzlement, defined as fraudulent appropriation of another’s property by a person to whom it has been entrusted or into whose hands it has lawfully come. State v. Mischler, 488 So. 2d 523 (Fla.1986). What is not made clear in Mischler is whether breach of trust is to be considered an inherent component of any form of theft because of the combination of the various types of theft, including embezzlement, into the Omnibus Theft Statute, section 812.014. Breach of trust is not an inherent component of the type of theft commonly referred to as stealing, although it is sometimes present, and we do not read Mischler as prohibiting departure based on a breach of trust in the ordinary theft case. Therefore, it would appear that breach of trust clearly proved, was a valid reason for departure here.
But even if the “breach of trust” reason is invalid under Mischler, we believe that the trial judge met the requirements of Albritton v. State, 476 So. 2d 158 (Fla.1985) by clearly and succinctly stating that he would have departed for any one of the reasons which he gave. We see no purpose to be served by sending the case back and asking the trial judge in effect, to tell us if he really meant what he said. The supreme court recently disapproved the use of “boiler plate” language in departure sentences to the effect that a departure sentence would still be imposed even if some reasons were invalid, see The Florida Bar Re: Rules of Criminal Procedure, 482 So. 2d 311, 312 (Fla.1985), but we do not believe that the supreme court intended to prohibit trial judges from making such a finding on an individualized case by case basis. See Brown v. State, 481 So. 2d 1271 (Fla. 5th DCA 1986). Where the record indicates, as it does here, that the trial judge conscientiously weighed the relevant factors in imposing sentence and in concluding that a non-state prison sanction was inappropriate, and that he would have departed for any valid reason, and where he says so in his order, we should give the order due deference. The language used here was not a “boiler plate” provision in a printed order. This was a typewritten order specifically prepared for this case, and the sentencing dialogue clearly indicates that the trial judge, in the exercise of his sentencing discretion, believed that a de parture sentence was necessary and justified.
AFFIRMED.
COBB, J., concurs.
DAUKSCH, J., dissents without opinion.
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Griffis v. State, 497 So. 2d 296 (Fla. 1st DCA 1986)…ture, “unequivocally demonstrates that he would depart from the guidelines for any one or combination of his stated reasons” and that the Albritton “reasonable doubt” standard had been met. The Fifth District Court of Appeal noted in Kigar v. State, 495 So. 2d 273 (Fla. 5th DCA 1986): [T]he trial judge met the requirements of Albritton v. State by clearly and succinctly stating that he would have departed for any one of the reasons which he gave. We see no purpose to be served by sending the case back and as…
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Felts v. State, 537 So. 2d 995 (Fla. 1st DCA 1988)…on” under rule 3.701(d)(4), nor "prior record” under rule 3.701(d)(5). . Campos v. State, 515 So. 2d 1358 (Fla. 4th DCA 1987). . Austin v. State, 507 So. 2d 132 (Fla. 1st DCA 1987); Pugh v. State, 499 So. 2d 54 (Fla. 1st DCA 1986); Kigar v. State, 495 So. 2d 273 (Fla. 5th DCA 1986); Wright v. State, 491 So. 2d 283 (Fla. 2d DCA 1986); Safford v. State, 488 So. 2d 141 (Fla. 5th DCA 1986); Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985); Prince v. State, 461 So. 2d 1015 (Fla. 4th DCA 1984); and Davis v. Sta…
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Reichman v. State, 497 So. 2d 293 (Fla. 1st DCA 1986)…ture, “unequivocally demonstrates that he would depart from the guidelines for any one or combination of his stated reasons” and that the Albritton “reasonable doubt” standard had been met. The Fifth District Court of Appeal noted in Kigar v. State, 495 So. 2d 273, 274 (Fla. 5th DCA 1986): [T]he trial judge met the requirements of Albritton v. State by clearly and succinctly stating that he would have departed for any one of the reasons which he gave. We see no purpose to be served by sending the case back a…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Hankey v. State, 485 So. 2d 827 (Fla. 1986)
- The Fla. Bar re: Rules of Crim. Procedure (sentencing Guidelines, 482 So. 2d 311 (Fla. 1985)
- Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984)
- Davis v. State, 455 So. 2d 602 (Fla. 5th DCA 1984)
- Brown v. State, 481 So. 2d 1271 (Fla. 5th DCA 1986)