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Date: 12-06-2022

Case Style:

State of Florida v. Roger McLaney

Case Number: 1D22-261

Judge: Per Curiam

Court: First District Court of Appeals of Florida on appeal from the Circuit Court for Walton County

Plaintiff's Attorney: Ashley Moody, Attorney General, Trisha Meggs Pate, Bureau
Chief, and Heather Flanagan Ross, Assistant Attorney General,
Tallahassee, for Appellant

Defendant's Attorney:

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Description: DeFuniak Springs, Florida criminal defense lawyer represented Defendant charged with defrauding a church.

Roger McLaney, who was the treasurer of the Friendship Baptist Church of DeFuniak Springs from September 2015 to September 2020. He was charged with defrauding the church in an amount over $50,000 via systematic and ongoing diversions of funds for his personal use for nearly four of those years. McLaney entered a nolo
contendere plea. At sentencing, the trial court noted that McLaney did not have a prior criminal record and determined that McLaney satisfied the conditions for a downward departure because: (1) he had shown remorse by apologizing and (2) the event was isolated.

The trial court also noted that although the diversion of funds occurred over a number of years, McLaney was charged with only one count of fraud. The trial court ordered that McLaney be subject to five years of probation with a three-year suspended state prison sentence. He was required to pay $23,264.23 as restitution for the $188,264.23 taken, and his mother paid the remainder. This appeal follows.*

Whether there is a valid legal ground for a departure from the recommended sentencing and adequate factual support for that ground “is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling.” Banks v. State, 732 So.
2d 1065, 1067 (Fla. 1999). Once it is found that a valid legal ground
for a departure exists and that it is supported by competent
substantial evidence, the trial court’s decision to depart from the
recommended sentencing range is reviewed for abuse of discretion.
Id. at 1068. “A trial court must not impose a downward departure
sentence unless mitigating circumstances or factors are present
which reasonably justify such a departure.” Jackson v. State, 64
So. 3d 90, 92 (Fla. 2011).

By statute, “[m]itigating circumstances under which a
departure from the lowest permissible sentence is reasonably
justified include . . . [t]he offense was committed in an
unsophisticated manner and was an isolated incident for which the
defendant has shown remorse.” § 921.0026(2)(j), Fla. Stat. (2016).
When a trial court relies on this mitigator, all three elements must
be shown. See State v. Perlman, 118 So. 3d 994, 996 (Fla. 1st DCA
2013) (“The ultimate inquiry before this court is whether all three
of these elements were properly established in this case by
competent, substantial evidence.”); State v. Cooper, 889 So. 2d 119,
119 (Fla. 4th DCA 2004) (“To justify departure on this basis, all
three elements must be articulated by the trial judge and
supported by the record.”).

The trial court’s conclusion that McLaney is remorseful is not
at issue; competent substantial evidence supports the trial court’s
conclusion that McLaney has shown remorse. The State argues,
however, that competent substantial evidence does not support the
trial court’s conclusion that the offense was unsophisticated and
an isolated incident. McLaney claims his actions were
unsophisticated because the fraud “was readily ascertainable as
soon as anybody other than Mr. McLaney put their hands on the
books.” He further claims that it was an isolated incident because
he has no prior record.

Our review of the record, in conjunction with applicable
caselaw, shows a lack of competent substantial evidence that
McLaney’s crime was unsophisticated. The Fifth District’s decision
in State v. Hollinger, 253 So. 3d 1207 (Fla. 5th DCA 2018), is
instructive on analogous facts. In Hollinger, the defendant was a
business office manager who wrote petty checks from the victim’s
trust account, obtained signatures for the checks, and then
deposited the checks to her own bank account. Id. at 1209. The
defendant repeated this process over several months and stole
more than $50,000 from the victim. Id. The trial court determined
that the crimes were unsophisticated because the defendant took
no measures to hide her actions or identity. Id. The Fifth District
concluded to the contrary, noting that for several months the
defendant used her position of trust with the company and
repeatedly obtained signatures on the fraudulent checks. Id. at
1210. The Fifth District viewed that defendant’s actions as
involving “several distinctive and deliberate steps that she
repeated on numerous occasions” such that—even though she may
not have taken elaborate steps to hide her actions—the offenses
were not committed in an unsophisticated manner. Id.

In this case, McLaney was the treasurer of the church for five
years. For almost four of those years, he used his position of trust
with the church and embezzled money repeatedly. He transferred
money from the church’s account to his personal account and
removed the charges from records to avoid detection. His actions
involved several distinct and deliberate steps that he repeated on
numerous occasions. Even if, as McLaney claims, the fraud was
readily ascertainable—that he had not taken elaborate steps to
hide his actions—the offenses were committed in a manner that
required a significant degree of financial and logistical
sophistication. As such, competent substantial evidence does not
support that the crime was committed in an unsophisticated

Nor were McLaney’s actions an isolated incident. It is true
that McLaney has no criminal record; had he acted once to defraud
his church of funds, such a one-time action would be supportable
as isolated in nature given his lack of a criminal past. See Clark v.
State, 315 So. 3d 776, 781 (Fla. 1st DCA 2021). The fact that only
one charge was levied against McLaney does not mean, however,
that the series of underlying fraudulent acts for almost four years
can be deemed a single isolated incident. Rather, the offenses took
place for nearly four years and involved multiple acts. Therefore,
competent substantial evidence does not support the finding that
the crime was an isolated incident. See, e.g., Hollinger, 253 So. 3d
at 1209–10 (finding that the offenses could not be isolated when it
took place over several months and involved multiple incidents
even if there were a single scheme); State v. Crossley-Robinson, 275
So. 3d 662, 665 (Fla. 4th DCA 2019) (finding that multiple bank
robberies taking place over a six-month period were not isolated
incidents); State v. Strawser, 921 So. 2d 705, 707 (Fla. 4th DCA
2006) (finding that the offense could not be an isolated incident
when there were multiple incidents involving one victim over a
period of several months).

Because competent substantial evidence does not support a
finding that the crime was committed in an unsophisticated
manner and was an isolated incident, the downward departure
cannot be sustained.

Outcome: Accordingly, we REVERSE the downward departure sentence and REMAND for resentencing

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