STEVEN RUBIN AND AL RUBIN, APPELLANTS,
v.
THE STATE OF FLORIDA, APPELLEE
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Steven and Al Rubin appealed their convictions and sentences for various theft and burglary offenses. The court affirmed their convictions but vacated and remanded both appellants' sentences due to sentencing errors: Steven's was based on an incorrectly calculated scoresheet, and Al's departure reasons were either inherent components of the crime or based on charges of which he was not convicted.
The court affirmed the convictions for both appellants as supported by legally sufficient evidence. However, the court vacated and remanded both appellants' sentences: Steven's departure sentence was improper because the trial court relied on an incorrectly calculated scoresheet, and Al's departure sentence was improper because the cited reasons (substantial economic hardship and criminal mischief) were either inherent components of the crime or uncharged offenses.
[1] A trial court's denial of a motion for judgment of acquittal will be affirmed if the evidence presented is legally sufficient to support the convictions.
[2] A departure sentence must be vacated and resentencing ordered when the trial court relies upon an incorrectly calculated sentencing scoresheet.
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Join FLexlaw to unlock all legal intelligence“A trial court must have the benefit of a properly prepared scoresheet before it can make a fully informed decision on whether to depart from the recommended guideline sentence.”
Establishes the requirement for accurate sentencing calculations as a prerequisite to valid departure sentences.
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Join FLexlaw to unlock all legal intelligenceSteven Rubin was convicted of burglary of an occupied structure, grand theft, petit theft, criminal mischief, burglary to a conveyance, and conspiracy…
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PER CURIAM.
This is a joint appeal after a jury trial. Appellant, Steven Rubin appeals his convictions and sentences for burglary of an occupied structure, grand theft, petit theft, criminal mischief, burglary to a conveyance, and conspiracy to commit burglary. Appellant, A1 Rubin appeals his convictions and sen-, tences for grand theft and petit theft. We affirm in part and reverse and remand in part.
We first find no error in the trial court’s denial of Steven Rubin’s motion for judgment of acquittal. Based upon our review of the record, we conclude that the evidence adduced by the State was legally sufficient to support his convictions for criminal mischief and burglary of an occupied structure. See State v. Law, 559 So. 2d 187, 188-89 (Fla. 1989).
We agree with Steven Rubin, however, that his departure sentence must be vacated and that he must be resentenced where the trial court relied upon an incorrectly calculated score sheet. A “trial court must have the benefit of a properly prepared scoresheet before it can make a fully informed decision on whether to depart from the recommended guideline sentence.” See Smith v. State, 678 So. 2d 1374, 1376 (Fla. 4th DCA 1996) (quoting Dawson v. State, 532 So. 2d 89 (Fla. 4th DCA 1988)); see also Moore v. State, 519 So. 2d 22, 23 (Fla. 3d DCA 1987); Davis v. State, 493 So. 2d 82, 83 (Fla. 1st DCA 1986).
In light of the fact that we must remand this cause for Steven Rubin to be resentenced under a properly calculated score sheet, our need to address his further challenges to the court’s reasons for departure is obviated at this time.
Next, A1 Rubin challenges the validity of the two cited reasons for his departure sentence, i.e., substantial economic hardship to the victim and the painting of offensive anti-Semitic symbols on the victim’s property during the commission of the thefts.
We agree that the first reason was invalid in the absence of a preponderance of proof that the victim indeed sustained a “substantial economic hardship.” A 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 of the loss itself cannot alone justify a reason for departure. As to the remaining reason for departure, the state correctly concedes that it is invalid and inapplicable where A1 Rubin was never charged or convicted with criminal mischief. See Fla. R.Crim. P. 3.701(d)(ll); Welch v. State, 639 So. 2d 1068, 1069 (Fla. 4th DCA 1994); Pennant v. State, 600 So. 2d 526, 527 (Fla. 2d DCA 1992); Brown v. State, 587 So. 2d 563, 566-67 (Fla. 1st DCA 1991).
We thus vacate A1 Rubin’s departure sentence and remand with instructions that he be resentenced within the guidelines.
Finally, we find no merit to the remaining issues raised by the appellants on this appeal.
Affirmed in part, reversed and remanded in part with directions.
ON MOTION FOR REHEARING AND/OR CERTIFICATION
PER CURIAM.
Upon consideration of Appellee’s motion for rehearing, this court adds the following to its opinion issued on June 4, 1997: That its holding, with respect to the score sheet error, expressly and directly conflicts with Hines v. State, 587 So. 2d 620 (Fla. 2d DCA 1991), thus, we certify conflict with this decision.
Appellee’s motion for rehearing on the remaining matters is denied.
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Jordan v. State, 728 So. 2d 748 (Fla. 3d DCA 1998)…an the one which it previously considered.... ” Moore v. State, 519 So. 2d 22, 23 (Fla. 3d DCA 1987); see also Mackey v. State, 703 So. 2d 1183, 1185 (Fla. 3d DCA 1997), review granted, No. 92,179, 719 So. 2d 284 (Fla. May 19, 1998); Rubin v. State, 697 So. 2d 161, 162 (Fla. 3d DCA 1997), review granted, No. 91,270, 721 So. 2d 716 (Fla. Mar. 17, 1998); Smith v. State, 678 So. 2d 1374, 1376 (Fla. 4th DCA 1996). . This was evidently in response to the problem identified by Iacovone v. State, 639 So. 2d 1108 (F…
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State v. MacKey, 719 So. 2d 284 (Fla. 1998)…scoresheet; the crimes were committed in April 1994. “A ‘trial court must have the benefit of a properly prepared scoresheet before it can make a fully informed decision on whether to depart from the recommended guideline sentence.’” Rubin v. State, 697 So. 2d 161, 162 (Fla. 3d DCA 1997). Mackey, 703 So. 2d at 1185. The Third District certified conflict with Hines, which affirmed a departure sentence imposed on the basis of an improperly calculated scoresheet, finding that the trial court would have imposed…
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Sewall v. State, 783 So. 2d 1171 (Fla. 5th DCA 2001)…al hardship to any of the victims. Sewall further claims that because his crime was one of grand theft, his victims economic loss was an inherent factor in the crime precluding a departure sentence based upon economic hardship citing Rubin v. State, 697 So. 2d 161, 163 (Fla. 3d DCA 1997), reversed on other grounds, State v. Rubin, 721 So. 2d 716 (Fla.1998). Since economic loss is an in [*1179] herent component of every theft, the amount of loss itself cannot alone justify a departure sentence. See Rubin, 697…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- State v. Ronnie S. LAW, 559 So. 2d 187 (Fla. 1989)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Terence A. Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985)
- Steiner v. State, 469 So. 2d 179 (Fla. 3d DCA 1985)
- Davis v. State, 493 So. 2d 82 (Fla. 1st DCA 1986)
- Felts v. State, 537 So. 2d 995 (Fla. 1st DCA 1988)
- Hines v. State, 587 So. 2d 620 (Fla. 2d DCA 1991)
- Dixon v. State, 492 So. 2d 410 (Fla. 5th DCA 1986)
- Smith v. State, 678 So. 2d 1374 (Fla. 4th DCA 1996)
- Glassman v. O'Grady, 532 So. 2d 89 (Fla. 3d DCA 1988)