McEachern v. State, 78-2074

• Decision Date: 20 August 1980
• Docket Number: No. 78-2074,78-2074
• Citation: 388 So.2d 244
• Parties: Leigh O. McEACHERN, III, Appellant, v. STATE of Florida, Appellee. /T4-218.
• Court: Florida District Court of Appeals

Page 244

388 So.2d 244

Leigh O. McEACHERN, III, Appellant, v. STATE of Florida, Appellee.

No. 78-2074/T4-218.

District Court of Appeal of Florida, Fifth District.

Aug. 20, 1980.

Rehearing Denied Sept. 29, 1980.

Richard L. Wilson, Orlando, for appellant.

Jim Smith, Atty. Gen., Tallahassee, C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.

ORFINGER, Judge.

This is a timely appeal from the judgment and sentence of the Circuit Court, Orange County, adjudging appellant guilty of two counts of grand larceny after jury trial, and imposing sentence of fifteen years for each count, to run consecutively. We affirm the conviction, but set aside the sentences and remand this cause for resentencing.

Appellant was Chief Deputy Sheriff of Orange County, Florida, during the fiscal years beginning October 1, 1975 to September 30, 1976, and October 1, 1976 to September 30, 1977. Appellant was responsible, inter alia, for the administration of an "investigative fund". Most of the investigative fund expenditures can be attributed to the "Special Investigations Division" of the Sheriff's Office, which carries out most under-cover assignments such as narcotics and vice. Money from the fund is used to pay informants, to purchase drugs, to demonstrate an agent's ability to pay for drugs in proposed purchases, and for other similar under-cover purposes. Internal records were kept of the expenditures, but because of the necessity to keep the investigations secret, the funds are not audited. Checks drawn on the account are initially issued only upon written requisition from either the Sheriff, the Sheriff's designate, or Appellant McEachern.

The record shows that in fiscal year 1975-76, a sum in excess of $263,000 was drawn on the account. Of this sum, more than $236,000 was issued directly to appellant upon his requisition. Slightly more than $143,000 was redeposited to the account, so approximately $120,000 was consumed. During fiscal year 1976-77, more than $187,000 was paid out, $140,000 of it directly to appellant. After crediting redeposits, slightly more than $105,000 was consumed. Evidence was presented at trial in the form of records of the Special Investigations Division showing its use of the investigative funds, and records were also produced of the Criminal Investigation Division which also made some use of these funds, although in very small amounts. The unaccounted for portion of the funds drawn in these two fiscal years far exceeded the amounts which could be accounted for.

Evidence was presented establishing appellant's salary during his employment with the Sheriff's Department. Evidence was also presented of the combined income of appellant and his wife during the two fiscal years in question, and also the recorded expenditures made by appellant and his wife during those periods. There was evidence presented that appellant paid large amounts of money in cash at various times. In short, the evidence tended to show expenditures both by cash and by check of sums far greater than the known income of appellant and his wife.

Explanations by appellant as to the sources of his income other than his salary, and explanations given by his wife were disputed and contradicted by other testimony. Appellant's wife testified that she had received approximately $75,000 in cash from her former husband, but the former husband denied giving her any money. The jury obviously did not believe appellant's explanation, and it had a right to reject it.

Appellant raises five points on appeal, but only two require discussion. He first contends that the court erred in allowing certain records to be considered as evidence, referring specifically to various books and records of the Sheriff's Department offered in evidence by the State and admitted into evidence over objection. We find no error in the admission of the records under the Uniform Business as Evidence Act, section 92.36(2), Florida Statutes (1975). In each case, there was testimony of the custodian or other qualified supervisor of the records testifying as to the identity and mode of preparation and that it was made in the regular course of business at or near the time of the act, condition or event.

The Uniform Business Records as Evidence Act is an extension of the shopbook rule and is intended to liberalize the rules pertaining to the admissibility of shopbook memoranda. Exchange National Bank of Tampa v. Hospital and Welfare Board of Hillsborough County, Fla.App.2d, 1965, 181 So.2d 9. The justification for this exception to the hearsay rule is the probability of trustworthiness which is incident to a record kept in the regular course of business and made at or near the time of the act, condition or event of which it purports to be a record. National Car Rental System, Inc. v. Holland, Fla.App. 4th, 1972, 269 So.2d 407. There is nothing in the statute which suggests that its application is limited to civil cases. Holley v. State, 328 So.2d 224, at 225.

The argument by appellant that the persons making the entries could not be identified does not require a contrary ruling. The statute was passed to avoid the necessity of bringing to court every person who played a part in the preparation of a particular business record. Holley v. State, supra. Appellant relies on Mastan Company, Inc. v. American Custom Homes, Inc., 214 So.2d 103 (Fla. 2d DCA 1968), as support for his position that these records should have been excluded. In that case, the trial court excluded the evidence after determining that the proffered records did not comply with the statute. The appellate court concluded that the trial court was correct in ruling that the business records were not properly authenticated for introduction. The court noted, however, that the records could have been properly authenticated by the supervisor of the records, who was not offered as a witness. It noted that the trial court has broad discretion in determining if the evidence adduced lays the proper foundation for reception of business records under the statute. Here, the trial court determined that there was a proper predicate and foundation, and we cannot say that he abused his discretion.

Appellant next contends that the indictment failed to charge him with a crime under the laws of the state. We do not agree. The indictment was sufficient to charge him with larceny under section 812.021(1)(a) and to designate the crime as grand larceny under section 812.021(2)(b), Florida Statutes (1975). The indictment alleges that appellant

did, while deputy sheriff of Orange County, Florida, between the 1st day of October, 1975, and the 30th day of September, 1976, in Orange County, Florida, in violation of Florida Statute 812.021, take, steal, and carry away from the lawful possession of the custodian and owner thereof, Melvin G. Colman, Sheriff of Orange County, Florida, within a twelve-month period preceding the 1st day of October, 1976, as part of a common scheme or design to defraud, certain property, to-wit: money, of the aggregate value of $200.00 or more, lawful money of the United States of America, with the intent to permanently deprive the said Melvin G. Colman, Sheriff of Orange County, Florida, of the said property or the use and benefit thereof while the said LEIGH O. McEACHERN, III, was an agent, servant, or employee of the said Melvin G. Colman, Sheriff of Orange County,...