State v. LaceyState v. Lacey
The state appeals the trial court‘s concurrent probation sentences for appellee‘s convictions on two counts of official misсonduct, two counts of grand theft, and one count of petit theft. The sentencing guidelines recommended a term of incarceration. In a related case another judge had previously sentenced appellee to probation for twelve grand theft convictions.
The trial judge gave the following written reasons for his downward sentencing departure in the case at bar:
1. The total amount ($118) of the alleged thefts was minimal (noting a сharge of grand theft now requires a $300 taking).
We reject this reason. The crimes occurred before the 1986 grand thеft statute amendment. A criminal statute that ameliorates or mitigates punishment may not be applied retroаctively. State v. Ussery, 543 So.2d 457 (Fla. 5th DCA), rev. denied, 551 So.2d 464 (Fla. 1989). The amount of the grand theft does not support a departure. State v. Lisk, 523 So.2d 1260 (Fla. 2d DCA), rev. denied, 531 So.2d 168 (Fla. 1988) (held that Atwaters v. State, 519 So.2d 611 (Fla. 1988), which cited State v. Mischler, 488 So.2d 523 (Fla. 1986), overruled State v. Pina, 487 So.2d 351 (Fla. 4th DCA 1986)).
2. Appellee had demonstratеd remorse, rehabilitation and that he would not be a future threat to society. He entered pleas and gаve up the right to appeal in the related case.
We recognize remorse, rehabilitation, and lack of future societal threat are valid reasons for downward departure when established by clear and convincing evidence. State v. Sachs, 526 So.2d 48 (Fla. 1988). We accept that appellee proved his remorse. We reject the other reasons. We find that the trial court abused its discretion when finding appellee was rehabilitated and posed no future threat to society. Counsel‘s statements at sentencing were inadequate substitutes for the required clear and convincing evidence. Until appellee proves otherwise, “the primary purpose of sentencing [remains] to punish the offender. Rehabilitation and other tradition considerations continuе to be desired goals of the criminal justice system but must assume a subordinate role.”
3. The victim only lost $59.40 and one count only charged an “endeavor” to commit grand theft.
We reject these reasons. The amount of the victim‘s loss is not a valid reason for departure. Hankey v. State, 485 So.2d 827 (Fla. 1986). The grand theft statute did not prоvide a lesser punishment for one who “endeavors” to commit grand theft.
4. Appellee suffered enough from the related case and the possible effect on his professional future.
We reject this reason. All defеndants suffer the consequences of a criminal conviction. The sentencing guidelines do not provide special treatment for the trained, educated or licensed. To achieve equality in sentencing, trial judges must bе blind as to the color of a defendant‘s collar.
5. Probation would have been the recommended sentence if appellee had been sentenced once for all related convictions.
We remand this reason for reconsideration. The trial judge has the obligation to use one scoresheet covеring all offenses pending for sentencing within the court‘s jurisdiction.
Therefore, we reverse and remand for resentencing. We are not convinced beyond a reasonable doubt that the trial judge would impose thе same sentence when the invalid reasons are eliminated from his consideration. Albritton v. State, 476 So.2d 158 (Fla. 1985).
REVERSED AND REMANDED FOR RESENTENCING CONSISTENT WITH THIS OPINION.
GLICKSTEIN, J., concurs specially with opinion.
ANSTEAD, J., dissents without opinion.
GLICKSTEIN, Judge, concurring specially.
I too would reverse and remand for resentencing. The 1987 amendment to
In the instant case, only one of the trial court‘s given reasons is valid for certain, i.e., remorse. Its last reason on the scoresheet computation is valid only if it can be established that the two cases were pending for sentencing at the same time. If they were, then a departure sentence would not be necessary sinсe a recomputed score would result in a recommended guidelines sentence of nonstate prisоn sanctions.
Because the finding of remorse was based solely on the appellee‘s and defense сounsel‘s word, the trial court might not have ordered a departure sentence if it were not for the fact that the remorse finding was only one among many reasons for departure. There has not been a showing beyond a reasonable doubt to the contrary.