STATE OF FLORIDA, APPELLANT,
v.
JEFFERY ALLEN LISK, APPELLEE
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The Florida Supreme Court reversed a downward departure from sentencing guidelines in a grand theft case, holding that the amount stolen cannot serve as a valid basis for departure. The court rejected the trial court's reasoning that the $500 theft was 'relatively small' and overruled prior caselaw permitting such departures.
The court held that the amount of money involved in a theft is not a valid basis for departing from sentencing guidelines, overruling State v. Pina and aligning grand theft cases with the Florida Supreme Court's holding in Atwaters v. State regarding drug quantity departures.
[1] A downward departure from sentencing guidelines is improper when based on the amount of money involved in the theft, as this is a factor already considered by the legisla…
[2] A trial court's departure from recommended sentencing guidelines must be based on valid reasons recognized by law.
Previewing 2 of 4 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“We believe that Pina is no longer a viable decision in view of the recent Florida Supreme Court decision in Atwaters v. State”
The court overruled prior caselaw that permitted downward departures based on the amount stolen.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJeffery Lisk was convicted of grand theft for stealing $500 on April 30, 1987, under Florida Statute § 812.014(2)(b)1. The sentencing guidelines recom…
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SCHEB, Acting Chief Judge.
On April 30,1987, the defendant, Jeffery Lisk, was convicted of grand theft for stealing $500. § 812.014(2)(b)l, Fla.Stat. (Supp.1986). The sentencing guidelines recommended a sentence within the range of two and one-half to three and one-half years’ imprisonment. The trial court departed from the guidelines and sentenced the defendant to one year and one day imprisonment.
The trial judge articulated two reasons for the downward departure from the recommended guidelines sentence. The parties concede that the first reason is invalid. The remaining reason was that the amount involved in the theft was “relatively small.” We think that reason is also an invalid basis for departure.
The defendant seeks to sustain the trial court's ruling on the basis of State v. Pina, 487 So. 2d 351 (Fla. 4th DCA 1986). In Pina, a grand theft case, the trial court departed downward from the recommended guidelines sentence because the amount stolen was very close to the statutory minimum for grand theft. In this case, the defendant was convicted of stealing $500. He argues that this amount is much closer to the statutory minimum of $300 than to the maximum of $20,000 for grand theft of the third degree. Therefore, the defendant contends the trial court was correct in determining that he should receive a lighter sentence than recommended by the guidelines.
We believe that Pina is no longer a viable decision in view of the recent Florida Supreme Court decision in Atwaters v. State, 519 So. 2d 611 (Fla.1988). In holding that the quantity of drugs involved in a crime is not a proper reason to support departure from the sentencing guidelines the court in Atwaters stated:
We also note that, in State v. Mischler, 488 So. 2d 523 (Fla.1986), we rejected a departure on the grounds that the theft involved sizable funds from a non-wealthy victim. To hold that a trial judge may depart based on the quantity of drugs involved, but could not depart based on the amount of money taken, when both are factors in the legislatively established penalty is illogical, inconsistent, and contrary to the purpose of the guidelines.
Atwaters, 519 So. 2d at 612.
Accordingly, we hold that the trial court erred in departing from the recommended guidelines sentence. We reverse and re mand with directions for the court to resen-tence the defendant within the range of recommended guidelines sentence.
CAMPBELL and HALL, JJ., concur.
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State v. Chapman, 805 So. 2d 906 (Fla. 2d DCA 2001)…So. 2d 611, 612 (Fla. 1988) (holding that the quantity of drugs involved in an offense does not support a downward departure because the legislature intended the quantity of drugs to be a determining factor in varying penalties), and State v. Lisk, 523 So. 2d 1260, 1260 (Fla. 2d DCA 1988) (holding that the trial court may not depart downward based on the quantity of money stolen in a theft case based on the reasoning in Atwaters). Reversed. CASANUEVA and STRINGER, JJ„ Concur. . § 316.193(2)(b), Fla. Stat.…
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State v. Preston, 622 So. 2d 169 (Fla. 2d DCA 1993)…on, after he pled guilty to third degree felony petit theft. We reverse. The trial court’s stated reason for the downward departure was the minimal value of the property taken. This reason is an invalid basis for downward departure. State v. Lisk, 523 So. 2d 1260 (Fla. 2d DCA 1988), rev. denied, 531 So. 2d 168 (Fla.1988). Since the reason for departure is invalid, we reverse the sentence. On remand, however, the appellee should be given an opportunity to withdraw his plea because the record indicates he en…
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State v. Lacey, 553 So. 2d 778 (Fla. 4th DCA 1989)…nal statute that ameliorates or mitigates punishment may not be applied retroactively. State v. Ussery, 543 So. 2d 457 (Fla. 5th DCA), rev. denied, 551 So. 2d 464 (Fla.1989). The amount of the grand theft does not support a departure. State v. Lisk, 523 So. 2d 1260 (Fla. 2d DCA), rev. denied, 531 So. 2d 168 (Fla.1988) (held that Atwaters v. State, 519 So. 2d 611 (Fla.1988), which cited State v. Mischler, 488 So. 2d 523 (Fla.1986), overruled State v. Pina, 487 So. 2d 351 (Fla. 4th DCA 1986)). 2. Appellee had d…
Authorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Atwaters v. State, 519 So. 2d 611 (Fla. 1988)
- State v. Pina, 487 So. 2d 351 (Fla. 4th DCA 1986)