State v. Mischler, No. 66191

CourtUnited States State Supreme Court of Florida
Writing for the CourtADKINS; BOYD; EHRLICH; McDONALD; EHRLICH
Citation488 So.2d 523,11 Fla. L. Weekly 139
Docket NumberNo. 66191
Decision Date03 April 1986
Parties11 Fla. L. Weekly 139 STATE of Florida, Petitioner, v. Karen A. MISCHLER, Respondent.

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.

Page 524

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

Page 525

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...

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229 practice notes
  • Felts v. State, No. BJ-413
    • United States
    • Court of Appeal of Florida (US)
    • January 14, 1988
    ...argues that "any inferences of arrests or convictions" were not credible and proven beyond a reasonable doubt, citing State v. Mischler, 488 So.2d 523 (Fla.1986). He asserts that threatening the victim with a gun is an inherent element of robbery, that use of a firearm had been factored int......
  • Davis v. State, No. 1D17-0165
    • United States
    • Court of Appeal of Florida (US)
    • April 25, 2019
    ...have no place in the consideration of aggravating factors. Pope v. State, 441 So.2d 1073, 1078 (Fla. 1983) ; see also State v. Mischler , 488 So.2d 523, 526 (Fla. 1986) (holding, in guidelines departure analysis in a non-death case, that "lack of remorse to support a departure sentence cann......
  • Peters v. State, No. 4D11–607.
    • United States
    • Florida District Court of Appeals
    • November 20, 2013
    ...the guidelines score can never support departure.” State v. Rousseau, 509 So.2d 281, 282 (Fla.1987) (quoting State v. Mischler, 488 So.2d 523, 525 (Fla.1986)). This is so since “allow [ing] the trial judge to depart from the guidelines based upon a factor which has already been weighed in a......
  • U.S.A v. Lewis, No. 09-4343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 27, 2010
    ...doubt,’ and ‘not ... a factor which has already been weighed in arriving at a presumptive sentence.’ ” Id. (quoting State v. Mischler, 488 So.2d 523, 525 (Fla.1986); Williams v. State, 492 So.2d 1308, 1309 (Fla.1986)). The mandatory character of the Florida guidelines virtually ensured that......
  • Request a trial to view additional results
229 cases
  • Felts v. State, No. BJ-413
    • United States
    • Court of Appeal of Florida (US)
    • January 14, 1988
    ...argues that "any inferences of arrests or convictions" were not credible and proven beyond a reasonable doubt, citing State v. Mischler, 488 So.2d 523 (Fla.1986). He asserts that threatening the victim with a gun is an inherent element of robbery, that use of a firearm had been factored int......
  • Davis v. State, No. 1D17-0165
    • United States
    • Court of Appeal of Florida (US)
    • April 25, 2019
    ...have no place in the consideration of aggravating factors. Pope v. State, 441 So.2d 1073, 1078 (Fla. 1983) ; see also State v. Mischler , 488 So.2d 523, 526 (Fla. 1986) (holding, in guidelines departure analysis in a non-death case, that "lack of remorse to support a departure sentence cann......
  • Peters v. State, No. 4D11–607.
    • United States
    • Florida District Court of Appeals
    • November 20, 2013
    ...the guidelines score can never support departure.” State v. Rousseau, 509 So.2d 281, 282 (Fla.1987) (quoting State v. Mischler, 488 So.2d 523, 525 (Fla.1986)). This is so since “allow [ing] the trial judge to depart from the guidelines based upon a factor which has already been weighed in a......
  • U.S.A v. Lewis, No. 09-4343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 27, 2010
    ...doubt,’ and ‘not ... a factor which has already been weighed in arriving at a presumptive sentence.’ ” Id. (quoting State v. Mischler, 488 So.2d 523, 525 (Fla.1986); Williams v. State, 492 So.2d 1308, 1309 (Fla.1986)). The mandatory character of the Florida guidelines virtually ensured that......
  • Request a trial to view additional results

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