STEVEN RUBIN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1999-03-24
No. 96-2724
Before COPE, GERSTEN, and GREEN, JJ.
734 So. 2d 1089 Florida District Court of Appeal, Third District (1999) Caution
Cited by 20 cases

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Synopsis

Steven Rubin appeals his sentence, which was based on an incorrectly calculated scoresheet. The Florida Supreme Court's decision in Mackey eliminated per se reversal for scoresheet errors, requiring instead a harmless error analysis. The court affirmed Rubin's departure sentence after finding it would have been imposed regardless of the scoresheet error and that valid reasons supported the departure.


Holding

The court held that scoresheet errors do not warrant per se reversal; instead, harmless error analysis applies. Here, the error was harmless because the record demonstrates the trial court would have imposed the same departure sentence even with a correctly calculated scoresheet, and the departure sentence was supported by valid enumerated reasons.


Headnotes

[1] A scoresheet error is harmless if the trial court would have imposed the same departure sentence notwithstanding the error and valid reasons exist to support the departur…

[2] A defendant's leadership role in a criminal organization is a valid reason for a departure sentence.

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Key Quotes

“the trial judge would have imposed the same departure sentence notwithstanding the scoresheet error”

Establishes the harmless error test for scoresheet errors, requiring examination of whether the trial court would have imposed the same sentence anyway

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Facts & Procedural History

Rubin was convicted of two counts of occupied burglary, seven counts of grand theft, two counts of petit theft, two counts of criminal mischief over $…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

In State v. Mackey, 719 So. 2d 284, 285 (Fla.1998), the supreme court disapproved a rule of per se reversal in cases involving scoresheet errors.

Pursuant to Mackey, the supreme court thereafter quashed that portion of our opinion in Rubin v. State, 697 So. 2d 161 (Fla. 3d DCA 1997), wherein we vacated appellant, Steven Rubin’s sentence due to an incorrectly calculated scoresheet and remanded this cause for the trial court to resentence him under a properly calculated scoresheet without addressing his challenges to the departure sentence. See State v. Rubin, 721 So. 2d 716, 716 (Fla.1998).

Pursuant to the supreme court’s mandate in State v. Rubin, we now consider whether the court’s use of the improperly calculated scoresheet adversely affected the sentences imposed against the appellant. See Hines v. State, 587 So. 2d 620, 621 (Fla. 2d DCA 1991) (holding court must consider whether “the trial judge would have imposed the same departure sentence notwithstanding the scoresheet error.”).

We conclude that in this case, any scoresheet error was harmless as the record reflects that although the appellant’s point total would have been lowered, the trial court would have nevertheless imposed the departure sentence, which was supported by valid reasons.

The appellant was convicted of two counts of occupied burglary, seven counts of grand theft, two counts of petit theft, two counts of criminal mischief over $1,000, one count of criminal mischief under $1,000, four counts of burglary to a conveyance and one count of conspiracy to commit burglary. As one of its reasons for the departure sentence, the trial court found the appellant to have occupied a leadership role in a criminal organization. In this role the court found, and the evidence supports, that the appellant procured people to vandalize school property, approved the use of minors to commit various offenses against the school’s property, gave directions as to how the vandalism was to be performed, financed the criminal activities and received kickbacks as a result of the criminal enterprise.

Rule 3.991, Florida Rules of Criminal Procedure specifically lists a defendant’s leadership role in a criminal organization as a valid reason for departure.

The second reason given for the departure sentence arises from the fact that the appellant induced two minors to participate in one of the criminal mischief offenses. This is also a valid enumerated reason for departure listed in Rule 3.991. The record reveals that the participation by the minors in the criminal offense would not have occurred without the appellant’s approval. Thus, we find this to be an additional valid reason which supports the departure sentence.

A third reason cited by the court in support of its departure sentence was the emotional trauma to the students and staff. Psychological trauma to the victim has been held to be a valid reason for a departure sentence. See Lumpkin v. State, 510 So. 2d 1164, 1165 (Fla. 3d DCA 1987). The school’s guidance counselor testified that she had to counsel students, the majority of whom are Jewish, on a daily basis as a result of the anti-Semitic words and symbols painted on the school’s property at appellant’s direction.

Given the validity of these reasons for departure, we need not address the propriety of the remaining reasons cited by the trial court. See State v. Chandler, 668 So. 2d 1087, 1088 (Fla. 1st DCA 1996) (finding sentence must be upheld if one factor justifies departure regardless of whether other factors do not). Therefore, where it is clear that the trial court would have imposed the departure sentence notwithstanding the scoresheet error and there are valid reasons for the departure sentence, we affirm.

Affirmed.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (11 total)

  • State v. Gwenda Jean Lemon, 825 So. 2d 927 (Fla. 2002)
    …that the trial court would have imposed the same 1995 guidelines departure sentence under the 1994 guidelines. Cf. Hines v. State, 587 So. 2d 620, 621 (Fla. 2d DCA 1991), approved sub nom., State v. Mackey, 719 So. 2d 284 (Fla.1998); Rubin v. State, 734 So. 2d 1089, 1089 (Fla. 3d DCA 1999). We therefore reverse and remand for consideration of this point. 769 So. 2d at 418. We agree with the Second District’s analysis in Ray and Kwil, and disapprove of the analysis in Lemon. In other words, we agree that our d…
  • Curley Braggs v. State, 815 So. 2d 657 (Fla. 3d DCA 2002)
    …re by 9.6 months. There is no doubt that if there were a resentencing hearing with a revised scoresheet, the identical departure sentences for murder and robbery would again be imposed. See State v. Mackey, 719 So. 2d 284 (Fla.1998); Rubin v. State, 734 So. 2d 1089 (Fla. 3d DCA 1999).…
  • Gwenda Jean Lemon v. State, 769 So. 2d 417 (Fla. 4th DCA 2000)
    …that the trial court would have imposed the same 1995 guidelines departure sentence under the 1994 guidelines. Cf. Hines v. State, 587 So. 2d 620, 621 (Fla. 2d DCA 1991), approved sub nom., State v. Mackey, 719 So. 2d 284 (Fla.1998); Rubin v. State, 734 So. 2d 1089, 1089 (Fla. 3d DCA 1999). We therefore reverse and remand for consideration of this point. We affirm the remainder of the trial court’s order. STONE, SHAHOOD and GROSS, JJ., concur.…

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