Kigar v. State
| Decision Date | 02 October 1986 |
| Docket Number | No. 86-25,86-25 |
| Citation | 11 Fla. L. Weekly 2098,495 So.2d 273 |
| Parties | 11 Fla. L. Weekly 2098 Steven KIGAR, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.
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 2 1/2 years in prison, a two cell upward departure from the recommended "non-state prison sanction," to be followed by 2 1/2 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)...
To continue reading
Request your trial
-
Felts v. State
...4th DCA 1987).10 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......
-
Wichael v. State
...v. State, 499 So.2d 54 (Fla. 1st DCA 1986), disapproved of on other grounds, Thorp v. State, 555 So.2d 362 (Fla.1990); Kigar v. State, 495 So.2d 273 (Fla. 5th DCA 1986). Some of this case law may now be in doubt because the cases involve sentences imposed after revocation of probation. See ......
-
Bradley v. State, 85-2664
...DCA 1987); Griffis v. State, 497 So.2d 296 (Fla. 1st DCA 1986); Reichman v. State, 497 So.2d 293 (Fla. 1st DCA 1986); Kigar v. State, 495 So.2d 273 (Fla. 5th DCA 1986). ...
-
Brown v. State, 87-28
...guidelines." The written order was prepared for this case--it was not a boiler-plate form. Just as was the case in Kigar v. State, 495 So.2d 273 (Fla. 5th DCA 1986), the trial court made it clear in the sentencing dialogue and in the written order that he believed a departure sentence was n......