State v. Imber, Case No. 2D16–2113
| Decision Date | 17 May 2017 |
| Docket Number | Case No. 2D16–2113 |
| Citation | 223 So.3d 1070 |
| Parties | STATE of Florida, Appellant/Cross–Appellee, v. Wanda Livingston IMBER, Appellee/Cross–Appellant. |
| Court | Florida District Court of Appeals |
Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellant/Cross–Appellee.
Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellee/Cross–Appellant.
A jury convicted Wanda Livingston Imber of grand theft and money laundering for stealing and laundering approximately $1.6 million from her elderly, dementia-afflicted stepfather's various investment accounts between 2007 and 2014. Mrs. Imber's lowest permissible guidelines sentence was calculated at 25.8 years' imprisonment. The trial court departed downward and sentenced Mrs. Imber to terms of community control and probation on the basis that the victim was a "willing participant" in the theft of his own money pursuant to section 921.0026(2)(f), Florida Statutes (2007). The State appeals Mrs. Imber's sentence. We reverse the downward departure sentence and remand for imposition of a guidelines sentence. We affirm Mrs. Imber's convictions in all other respects.
In assessing whether to impose a downward departure sentence, a trial court must first determine if it can depart based on a valid legal ground supported by an adequate factual basis. State v. Torres , 60 So.3d 560, 561–62 (Fla. 2d DCA 2011) (citing Banks v. State , 732 So.2d 1065, 1067 (Fla. 1999) ). We will affirm the trial court's conclusion if it applied the correct rule of law and if competent, substantial evidence supports its ruling. Id. at 562. In evaluating the adequacy of the evidence, we assess only the legal sufficiency of the evidence and not its weight. Id. Next, the trial court must weigh the totality of the circumstances to determine if departure is the best option for the defendant. Banks , 732 So.2d at 1068. We review this second step for an abuse of discretion. Id.
The legislature has directed that a "downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s. 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure." § 921.0026(1). The legislature has enumerated a nonexhaustive list of mitigating circumstances or factors which "reasonably justify" downward departure. § 921.0026(2)(a)–(n). One enumerated circumstance for a reasonably justified downward departure is if the "victim was an initiator, willing participant, aggressor, or provoker of the incident." § 921.0026(2)(f).
At trial, the victim's physician testified that, in 2007, Mrs. Imber and the victim's then-wife expressed concern during a medical visit that the victim might have dementia
. The victim's physician tested the victim and determined he had "the kind of dementia that waxes and wanes" and worsens over time. Likewise, two of the victim's sons testified that they noticed symptoms of dementia in the victim. In particular, one of the victim's sons testified that the victim would ask a question, "and thirty minutes later he'll ask the same question again."
In 2014, the victim's family suggested to the victim that he have his finances audited after Mrs. Imber was caught transferring money out of one of the family's investment trusts. Although the victim initially agreed to the audit, the victim later faxed a letter to his attorney stating that he refused to show his personal records to anyone and could dispose of his money in any manner he desired. Shortly after sending this letter, the victim was placed under the emergency guardianship of one of his sons, and the victim's family hired an accountant to audit the victim's finances.
The audit revealed that, from 2007 to 2014, hundreds of checks were written from the victim's personal checking account to Mrs. Imber. Suspecting that Mrs. Imber had stolen money from their father, the victim's sons provided the information from the audit to the State Attorney's Office. As a result, Mrs. Imber was charged with grand theft and multiple counts of money laundering. The jury convicted Mrs. Imber as charged, rejecting her defense that the $1.6 million in checks she received from the victim was given to her with the victim's consent.
Mrs. Imber's lowest permissible sentence was 25.8 years' imprisonment. The sentencing court departed downward based on its determination that the victim was a "willing participant" in the grand theft and money laundering incidents pursuant to section 921.0026(2)(f). The sentencing court relied on the letter the victim faxed to his attorney shortly before he was placed under emergency guardianship.
In no uncertain terms, the legislature has prohibited trial courts from departing downward from the lowest permissible sentence unless there are circumstances or factors demonstrating that the departure is reasonably justified. § 921.0026(1). Against the backdrop of this legislative mandate, we can find no Florida precedent to support the proposition that a victim of a grand theft can be a "willing participant" in the stealing of his own property.
As our court has observed, a "trial court can mitigate a sentence based on conduct that is not sufficient to excuse the crime." Torres , 60 So.3d at 562 (citing Hines v. State , 817 So.2d 964, 965 (Fla. 2d DCA 2002) ). For example, it is reasonable to consider the actual consent of an underage victim in a statutory rape case, even though the victim's consent may be of no legal significance to the offense itself. State v. Rife , 789 So.2d 288, 296 (Fla. 2001). In a similar vein, Florida law also allows for downward departure in murder or battery cases where the victim may have provoked the defendant, but not to such an extent that the defendant's battering or killing of the victim could be legally excused as self-defense. See Hines , 817 So.2d at 965 ; State v. Tai Van Le , 553 So.2d 258, 259 (Fla. 2d DCA 1989).
But those cases are a far cry from what we have here. There is no amount of willing participation...
To continue reading
Request your trial
-
State v. Johnson
...review involving mixed questions of law and fact. Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999) ; see also State v. Imber, 223 So. 3d 1070, 1071-72 (Fla. 2d DCA 2017) ; State v. Torres, 60 So. 3d 560, 561-62 (Fla. 2d DCA 2011). First, the trial court must decide whether valid legal grou......
-
Warianek v. State
...of circumstances to determine whether departure is the 'best option' for the defendant." Id. at 767-68 (quoting State v. Imber, 223 So. 3d 1070, 1071-72 (Fla. 2d DCA 2017) ); see also Williams v. State, 279 So. 3d 839, 843-44 (Fla. 1st DCA 2019) ("Confronted with a downward-departure senten......
-
State v. Rush
...the circumstances presented, was a willing participant in his home being burgled and his own shooting and beating. State v. Imber , 223 So. 3d 1070, 1072–73 (Fla. 2d DCA 2017) ("we can find no Florida precedent to support the proposition that a victim of a grand theft can be a ‘willing part......
-
Judgment and sentence
...approximately $1.6 million from elderly, dementia-afflicted stepfather on basis that victim was willing participant. State v. Imber, 223 So. 3d 1070 (Fla. 2d DCA 2017) A criminal defendant cannot agree to illegal sentence pursuant to negotiated plea. Here, defendant pled to thirteen years i......