State v. Silver, 97-3478.
| Decision Date | 30 December 1998 |
| Docket Number | No. 97-3478.,97-3478. |
| Citation | 723 So.2d 381 |
| Parties | STATE of Florida, Appellant, v. Alan SILVER, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellant.
Richard L. Jorandby, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellee.
ON MOTION FOR REHEARING
We deny the motion for rehearing but withdraw our previously issued opinion and substitute the following in its place.
Over the objection of the state, the trial court entered a downward departure sentence upon appellee's plea to racketeering and organized fraud based upon a scheme whereby telemarketers offered telephone callers non-existent overseas jobs for a fee. Because there was no evidentiary basis for the departure sentence, we reverse.
Prior to entering a plea, appellee moved for a downward departure sentence, asserting that he was "a relatively minor participant in the criminal conduct," see section 921.0016(4)(b), Florida Statutes (1993), and "the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse," see section 921.0016(4)(j). The trial court held two hearings on the motion. At neither hearing did appellee's attorney offer any evidence to support the grounds for departure, but instead relied on the argument that his client's participation was minor and that he had shown remorse. Moreover, he alleged that his client would be more capable to pay restitution to the victims if he were working. The trial court offered the appellant a couple of options and noted that it could make a downward departure based upon the need for restitution. No evidence was offered as to restitution.
At the second hearing, the state proffered the testimony of the investigating detective to refute appellee's counsel's uncorroborated assertion at the prior hearing that appellee was a minor participant in the fraudulent scheme. The detective explained the telemarketing operation. Defendant had been a "closer" for the scheme and was employed for a substantial period of time during which All Global, the telemarketing company, did business in Coral Springs. While it later existed for another nine months after moving to Boca Raton, appellee was no longer associated with the business. However, after investigating the operation, of the 50 people employed both in Coral Springs and Boca, only 17 were indicted. The detective explained that they targeted for prosecution the ownership, the management, and the closers who actually consummated the deals. She testified that appellant had a significant number of deals during the two-month period he worked relative to the other closers, completing 61 fraudulent deals, totaling $15,190, from which he received a salary of $8,740. Although some persons worked for the operation longer than appellee, the prosecutors based their decisions to charge on the number of complaints and the number of deals closed. Moreover, the detective testified that appellee made many comments to other workers that showed his knowledge of the illegality of the deals he was making. The trial court sentenced appellee to a downward departure sentence, stating as reasons for departure that it was "more important that restitution be made than defendant be imprisoned," and that appellee was a relatively minor participant.
Since the offenses in the present case were committed in 1992, and appellee made no "affirmative election" to be sentenced under the 1994 amended guidelines, the 1991 sentencing guidelines apply. See Bello v. State, 547 So.2d 914, 919 (Fla.1989). With regard to departure sentences, section 921.001(5), Florida Statutes (1991), provides, in pertinent part:
A departure sentence shall be based upon circumstances or factors which reasonably justify the aggravation or mitigation of the sentence. The level of proof necessary to establish facts supporting a departure from a sentence under the guidelines is a preponderance of the evidence.
(emphasis added); see also Green v. State, 662 So.2d 748, 749-50 (Fla. 4th DCA 1995); State v. Chandler, 668 So.2d 1087, 1088 (Fla. 1st DCA 1996).
At the pre-plea and the sentencing hearings, appellee presented only legal argument to support his proposed departure grounds; the state vigorously objected to appellee's factual contentions and introduced the detective's testimony to refute same. Appellee failed to introduce any evidence to refute this testimony nor did he present any evidentiary support for departure on the grounds that he was a "minor participant". Appellee also did not...
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