State v. Mischler

• Decision Date: 03 April 1986
• Docket Number: No. 66191,66191
• Citation: 488 So.2d 523,11 Fla. L. Weekly 139
• Parties: 11 Fla. L. Weekly 139 STATE of Florida, Petitioner, v. Karen A. MISCHLER, Respondent.
• Court: Florida Supreme Court

Page 523

488 So.2d 523

11 Fla. L. Weekly 139

STATE of Florida, Petitioner, v. Karen A. MISCHLER, Respondent.

No. 66191.

Supreme Court of Florida.

April 3, 1986.

Rehearing Denied June 13, 1986.

Jim Smith, Atty. Gen. and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for petitioner.

No appearance, for respondent.

Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for amicus curiae.

ADKINS, Justice.

We have for review Mischler v. State, 458 So.2d 37 (Fla. 4th DCA 1984), in which the district court certified the following 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?

Id. at 42. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We agree with the district court and answer the question in the negative.

Departures from the sentencing guidelines range should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating a sentence. Fla.R.Crim.P. 3.701(d)(11). Thus far, trial courts have cited a multitude of reasons as being clear and convincing and therefore justifying departure. The five district courts have reached disparate conclusions as to whether an identical reason is in fact "clear and convincing." Both parties, the district court below, and other district courts have struggled to define "clear and convincing reasons" in an attempt to reach the guidelines' stated goal to establish a uniform set of standards to guide the sentencing judge. See In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983).

In Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), Judge Dell defined "clear and convincing evidence " as follows:

Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief and conviction, without hesitancy, as to the truth of the allegation sought to be established.

The district court noted that the above definition was acceptable as it pertains to a quantum of evidence but unacceptable as it pertains to reasons to depart. However, we choose to base our definition of clear and convincing reasons on Judge Dell's definition of clear and convincing evidence due to the fact that the above definition was a predicate for the clear and convincing reasons to depart standard. See Mischler v. State, 458 So.2d at 40 n. 6.

Accordingly, "clear and convincing reasons" require that the facts supporting the reasons be credible and proven beyond a reasonable doubt. The reasons themselves must be of such weight as to produce in the mind of the judge a firm belief or conviction, without hesitancy, that departure is warranted.

Both parties dispute the proper role of appellate courts in sentencing guideline cases. In Albritton v. State, 476 So.2d 158 (Fla.1985), we noted that the guidelines were not intended to usurp judicial discretion and that sentencing is still an individualized process. Therefore, we hold that an appellate court's function in a sentencing guidelines case is merely to review the reasons given to support departure and determine whether the trial court abused its discretion in finding those reasons "clear and convincing." Accord Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984); Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984).

A reason which is prohibited by the guidelines themselves can never be used to justify departure. Santiago v. State, 478 So.2d 47 (Fla.1985). Factors already taken into account in calculating the guidelines score can never support departure. Hendrix v. State, 475 So.2d 1218 (Fla.1985). A court cannot use an inherent component of the crime in question to justify departure. Steiner v. State, 469 So.2d 179, 181 (Fla. 3d DCA 1985); Baker v. State, 466 So.2d 1144 (Fla. 3d DCA 1985). If any of the reasons given by the trial court to justify departure fall into any of the three above-mentioned categories, an appellate court is obligated to find that departure is improper.

The trial court improperly deviated from the presumptively correct recommended sentence on the basis that the crime involved was a white collar crime. A trial court is prohibited from departing on the ground that the crime was a white collar crime because white collar is clearly linked to social and economic status which the guidelines expressly forbid using as a basis for sentencing. Fla.R.Crim.P. 3.701(b)(1).

The trial court cited the fiduciary relationship between Mischler and her employer as a clear and convincing reason to justify departure. Mischler was charged and convicted of grand theft under section 812.014, Florida Statutes (1981), the omnibus theft statute, which incorporates into its terms the former separate offense of embezzlement. See Martin v. State, 379 So.2d 179 (Fla. 1st DCA 1980). Embezzlement is broadly defined as the fraudulent appropriation of another's property by a person to whom it has been entrusted or into whose hands it has lawfully come. 29A C.J.S. Embezzlement § 1 (1965). Therefore, the 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.

The trial court abused its discretion in finding that lack of remorse is a clear and convincing reason to depart because the facts do not support a finding of lack of remorse. The trial court's finding that Mischler was not remorseful is based entirely on her statement in the presentence report that she did not commit the alleged theft, that the employer was the culpable party, and that she lost at trial because "he [the victim] had money and those with money rule the world." These statements cannot be termed as lack of remorse. Rather, Mischler was merely maintaining her innocence...