Opinion
No. 86-1487.
April 30, 1987. Rehearing Denied June 9, 1987.
Appeal from the Circuit Court, Seminole County, Robert B. McGregor, J.
James B. Gibson, Public Defender and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
Richard A. Butterworth, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
Appellant's five convictions of theft are affirmed but his departure sentence is vacated because the reason for departure, "breach of trust," is considered an inherent component of a theft accomplished by a breach of trust such as the misrepresentations in this case, and because the second reason, "the enormity of the losses of the victims," i.e., the large amount of money stolen, is not a valid ground for departure. See State v. Mischler, 488 So.2d 523 (Fla. 1986); Campos v. State, 488 So.2d 677 (Fla. 4th DCA 1986); Coleman v. State, 483 So.2d 539 (Fla. 2d DCA 1986). But cf. Irwin v. State, 479 So.2d 153 (Fla. 2d DCA 1985), rev. denied, 488 So.2d 830 (Fla. 1986) (quantity of drugs was valid ground for departure).
We vacate the sentence and remand the case for resentencing to either the recommended guideline sentence or a departure sentence that conforms to the sentencing guidelines (Fla.R.Crim.P. 3.701).
SENTENCE VACATED; CAUSE REMANDED FOR RESENTENCING.
ORFINGER, J., concurs.
SHARP, J., concurs in result only with opinion.
While I agree the "breach of trust" reason for departure is insufficient under current case law to support an aggravated sentence under the guidelines, I think that the enormity of the losses of several victims is a valid ground.
The trial judge referred to the amount of money actually paid to Walker and stolen from each of the five victims. Each sum was more than $100.00 but less than $20,000.00, and an inherent component of the offense under sections 812.014 and 812.012(2)(c). However, the record reveals that the total loss of the five victims was $50,000.00; money they invested in Walker's bogus businesses. Further, the victims spent untolled time and energy on Walker's fruitless enterprise. The quantity of the victims' injuries, taken together and measured in economic terms, appears to be a valid basis to depart upwards. Seastrand v. State, 474 So.2d 908 (Fla. 5th DCA 1985); Johnson v. State, 462 So.2d 49 (Fla. 1st DCA 1984), approved in part, disapproved in part, 486 So.2d 536 (Fla. 1986) (valid departure where multiple victims and large amounts involved); Mitchell v. State, 458 So.2d 10 (Fla. 1st DCA 1984), review denied, 464 So.2d 556 (Fla. 1985), disapproved other grounds, State v. Whitfield, 487 So.2d 1045 (Fla. 1986); Jean v. State, 455 So.2d 1083 (Fla. 2d DCA 1984).
The cases cited by the majority, and other similar cases, which hold that the amount of money stolen, or "economic hardship" is an invalid reason to depart are distinguishable. State v. Mischler, 488 So.2d 523, 526 (Fla. 1986) (cannot sentence more harshly for stealing from a poor man than for stealing from a rich one); Hankey v. State, 485 So.2d 827 (Fla. 1986) (economic hardship on victim invalid because virtually all theft and burglary victims are subject to economic hardship); Campos v. State, 488 So.2d 677 (Fla. 4th DCA 1986) (relies on Knowlton v. State, 466 So.2d 278 (Fla. 4th DCA), review denied, 476 So.2d 675 (Fla. 1985) which holds error to depart on amount taken of a single victim where victim suffered no physical or psychological trauma); Coleman v. State, 483 So.2d 539 (Fla. 2d DCA 1986) (not on point-involved concomitant noncapital offenses and first-degree murder).
I would remand for resentencing. Albritton v. State, 476 So.2d 158 (Fla. 1985).