State v. Sarah M. Hollinger

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
STATE OF FLORIDA,
Appellant,
v. Case No. 5D17-1996
SARAH MARIE HOLLINGER,
Appellee.
________________________________/
Opinion filed August 17, 2018
Appeal from the Circuit Court
for Brevard County,
Morgan Laur Reinman, Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Rebecca Rock
McGuigan, Assistant Attorney General,
Daytona Beach, for Appellant.
James S. Purdy, Public Defender, and
Ailene S. Rogers, Assistant Public
Defender, Daytona Beach, for Appellee.
ON MOTION FOR REHEARING
PER CURIAM.
We withdraw our prior opinion in this case and substitute the following on
rehearing. The State appeals Sarah Marie Hollinger's downward departure sentence for
the lesser-included offense of second-degree grand theft of $20,000 to $100,000, twelve
counts of depositing a check with intent to defraud, and eight counts of uttering a forged
instrument. The State argues that the trial court's finding that the offenses were
committed in an unsophisticated manner and constituted an isolated incident for which
the defendant has shown remorse is not supported by substantial, competent evidence.
We agree.
Hollinger, in her capacity as the victim's business office manager, wrote petty
checks from the victim's Resident Trust Account, presented them to her bosses for their
signatures, and then deposited them into her own bank account for her personal use.
Hollinger acknowledged that she did not get petty cash in the normal course of her
position and she was not authorized to write petty cash checks to herself. Hollinger
repeated this process over the course of several months, stealing more than $50,000
from the victim. Hollinger testified she did not attempt to cover her tracks. The victim
impact statement1 admitted into evidence, however, indicated that the Resident Trust
Checkbook and the victim's copies of the written checks were missing after Hollinger
resigned. The victim had to obtain copies of the cleared checks from the bank.
Hollinger was originally charged with one count of organized fraud ($50,000 or
more), a first-degree felony, eight counts of uttering a forged instrument, and twenty-nine
counts of depositing a check with intent to defraud, all third-degree felonies. In exchange
for her guilty pleas to the reduced charge of second-degree grand theft, twelve counts of
depositing a check with intent to defraud, and eight counts of uttering a forged instrument,
1 The author of the victim's statement testified at the sentencing hearing thereby
allowing Hollinger an opportunity to question her as to the victim impact statement. See
Dickie v. State, 216 So. 3d 35, 38 (Fla. 2d DCA 2017) (finding trial court could properly
consider unsworn victim impact statement to fashion sentence).
2
the State agreed to nolle pros seventeen counts of depositing a check with intent to
defraud and to recommend a three-year cap on incarceration to be followed by probation.
Although Hollinger scored a minimum of twenty-four months in the Department of
Corrections, over the State's objection, the trial court sentenced Hollinger to ten years'
probation for grand theft and five years of concurrent probation for the remaining charges.
The trial court found that Hollinger met the criteria for a downward departure under section
921.0026(2)(j), Florida Statutes (2016), because "[t]he offense was committed in an
unsophisticated manner and was an isolated incident for which the defendant has shown
remorse." Hollinger had the burden to establish by a preponderance of the evidence that
there were facts to support all three elements. See State v. Weaver, 23 So. 3d 829, 830
(Fla. 5th DCA 2009); State v. Subido, 925 So. 2d 1052, 1057 (Fla. 5th DCA 2006).
The trial court found that the crimes were isolated because they constituted a
single scheme and Hollinger has no prior record. The trial court next determined that the
crimes were unsophisticated because Hollinger took no measures to protect herself or to
hide her actions or identity. Finally, the trial court found that Hollinger demonstrated
remorse by continuing on a course to mitigate the damage to the victims. Although we
do not disturb the trial court's finding of remorse,2 we conclude that the record does not
2 But see State v. Milici, 219 So. 3d 117, 122 (Fla. 5th DCA 2017) (finding no
competent, substantial evidence to support remorsefulness where defendant declined to
accept responsibility for crimes by either denying his involvement or blaming his actions
on a friend); State v. Henderson, 152 So. 3d 49, 51 (Fla. 5th DCA 2014) (explaining that
evidence did not establish remorse where defendant denied committing the crime); State
v. Ayers, 901 So. 2d 942, 945 (Fla. 2d DCA 2005) (finding defendant failed to establish
remorse where he continued to deny his responsibility for the offense); State v. Chestnut,
718 So. 2d 312, 313 (Fla. 5th DCA 1998) ("We are certain that Chestnut's denial of doing
'what [he] was accused of' is not the kind of remorse contemplated by the legislature.").
3
support a finding that the crimes were committed in an unsophisticated manner and were
isolated.
"Cases generally define 'unsophisticated' as the opposite of 'sophisticated,' which
in turn is defined as 'having acquired worldly knowledge or refinement; lacking in natural
simplicity or naiveté.'" State v. Salgado, 948 So. 2d 12, 16–17 (Fla. 3d DCA 2006)
(quoting Staffney v. State, 826 So. 2d 509, 512 (Fla. 4th DCA 2004)). In assessing
sophistication, courts have considered evidence of "several distinctive and deliberate
steps." State v. Fureman, 161 So. 3d 403, 405 (Fla. 5th DCA 2014) (quoting Salgado,
948 So. 2d at 18; Staffney, 826 So. 2d at 512). A crime lacks sophistication if the acts
constituting the crime are "artless, simple and not refined." Salgado, 948 So. 2d at 17
(quoting Staffney, 826 So. 2d at 509).
Although Hollinger likens the facts of her case to the facts in State v. Joseph, 922
So. 2d 393 (Fla. 3d DCA 2006), the two are clearly distinguishable. In Joseph, the
defendant kept a duplicate deposit made by a client into the defendant's trust account.
922 So. 2d at 394. The client did not discover that it made a duplicate deposit until a year
later. Id. The defendant kept the money and used it for personal and business obligations
and was unable to return the funds once the client made the discovery. Id. The trial court
determined that the offense was unsophisticated, finding that the defendant "looked at it
as found money . . . [the check] came to him and then he cashed it." Id.
In the instant case, the victim did not accidentally deposit the money into
Hollinger's bank account. Instead, for several months Hollinger used her position of trust
with the company to repeatedly obtain signatures on fraudulent checks in order to take
the money for her own use. This certainly involved several distinctive and deliberate
4
steps that she repeated on numerous occasions. Although Hollinger may not have taken
elaborate steps to hide her actions, the victim impact statement indicated that she made
some effort to conceal her actions by taking the checkbook and copies of the cleared
checks with her. Based on these facts, we conclude that the offenses were not committed
in an unsophisticated manner.
As for whether the offenses were isolated, there is no bright-line rule for deciding
whether an offense is an isolated incident. State v. Waterman, 12 So. 3d 1265, 1268
(Fla. 4th DCA 2009) (citing State v. Gaines, 971 So. 2d 219, 221 (Fla. 4th DCA 2008)).
In this case, it is undisputed that Hollinger has no prior criminal history. However, a crime
is not necessarily considered to be isolated merely because a party has no criminal
history. See State v. Strawser, 921 So. 2d 705, 707 (Fla. 4th DCA 2006) (finding offense
could not be isolated where there were multiple incidents involving one victim over period
of several months); see also Bellamy v. State, 199 So. 3d 480, 483 (Fla. 4th DCA 2016)
("An offense also is not isolated if involves multiple incidents." (citing Strawser, 921 So.
2d at 707)); State v. Walters, 12 So. 3d 298, 301 (Fla. 3d DCA 2009) (finding acts were
not isolated where defendant pled guilty to over fifty separate money laundering
transactions over the course of more than six months). We find that Hollinger's multiple
offenses cannot be considered to be isolated.3
Accordingly, we reverse and remand for resentencing.4
3We recognize the holdings in State v. Merritt, 714 So. 2d 1153 (Fla. 5th DCA
1998), and State v. Randall, 746 So. 2d 550, 552 (Fla. 5th DCA 1999), but find that this
case is distinguishable based on the number of offenses that occurred over a span of
several months as opposed to several days.
4The trial court is not precluded from resentencing Hollinger to a downward
departure if the sentence is supported by valid grounds and there is competent,
5
REVERSE and REMAND for resentencing.
EVANDER, BERGER and WALLIS, JJ., concur.
substantial evidence to support those grounds. See Jackson v. State, 64 So. 3d 90, 93
(Fla. 2011).
6