FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; J. Dale Durrance,
Jo Bondi, Attorney General, Tallahassee, and Johnny T.
Salgado, Assistant Attorney General, Tampa, for
L. Dimmig, II, Public Defender, and Robert D. Rosen,
Assistant Public Defender, Bartow, for
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.
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
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." §
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."
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
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.
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.
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.
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 ...