Rubin v. State, 96-2724

Decision Date04 June 1997
Docket NumberNo. 96-2724,96-2724
Citation697 So.2d 161
Parties22 Fla. L. Weekly D1368 Steven RUBIN and Al Rubin, Appellants, v. The STATE of Florida, Appellee. Third District
CourtFlorida District Court of Appeals

Bierman, Shohat, Loewy, Perry & Klein, P.A. and Ira N. Loewy, Miami, for appellants.

Robert A. Butterworth, Attorney General and Michael J. Neimand, Assistant Attorney General, for appellee.

Before COPE and GREEN, JJ., and BARKDULL, Senior Judge.

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, Al Rubin appeals his convictions and sentences 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, Al 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 Al Rubin was never charged or convicted with criminal mischief. See Fla. R.Crim. P. 3.701(d)(11); 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 Al Rubin's departure...

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6 cases
  • Jordan v. State
    • United States
    • Florida District Court of Appeals
    • September 16, 1998
    ...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 2. This......
  • Sewall v. State
    • United States
    • Florida District Court of Appeals
    • April 20, 2001
    ...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 inherent component of e......
  • Mackey v. State
    • United States
    • Florida District Court of Appeals
    • December 24, 1997
    ...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)(quoting Smith v. State, 678 So.2d 1374, 1376 (Fla. 4th DCA 1996)). As in Rubin, we certify conflict with Hines v. State, 587 So......
  • Rubin v. State, 96-2724.
    • United States
    • Florida District Court of Appeals
    • March 24, 1999
    ...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 fo......
  • Request a trial to view additional results
1 books & journal articles
  • Planning ahead: some tips for the complaint drafter dealing with the economic loss rule.
    • United States
    • Florida Bar Journal Vol. 73 No. 5, May 1999
    • May 1, 1999
    ...determined that defendant had an "extra contractual, preexisting duty not to collude" in a scheme to defraud plaintiffs). [11] Bankers, 697 So. 2d at 161 (emphasis [12] Id. [13] Id. at 161. [14] Nussbaum at 505. [15] Casa Clara, 620 So. 2d at 1245. [16] Comptech, 711 So. 2d at 1257. The cou......

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