A state appeals court Wednesday overturned a sentence that would have allowed a woman to stay out prison after being convicted of taking $1.6 million from investment accounts of her dementia-suffering stepfather.
The ruling by the 2nd District Court of Appeal in a Polk County case said Wanda Livingston Imber was convicted of grand theft and money laundering for taking the money from 2007 to 2014. The stepfather, who is not identified in the appeals-court ruling, was diagnosed with a type of dementia in 2007 and was placed under the guardianship of a son in 2014.
Shortly before the man was placed under the guardianship, his family suggested he have his finances audited after Imber was found transferring money out of a family trust, Wednesday's ruling said. But the man faxed a letter to his attorney saying he refused to show his personal records to anyone and could dispose of money as he wished. The family subsequently hired an accountant to conduct an audit and went to prosecutors.
The appeals court said state sentencing guidelines indicated Imber faced a minimum sentence of 25.8 years in prison, but a judge instead sentenced her to community control — a type of intensive community supervision — and probation.
The judge based the decision on the victim being a “willing participant” because of the letter faxed to the attorney. But a three-judge panel of the appeals court flatly rejected that logic Wednesday and sent the case back for Imber to be sentenced along the guidelines.
“Here, we have purported consent by a victim who suffered from dementia and was placed under emergency guardianship shortly after he wrote a letter refusing to participate in an audit of his finances,” said the six-page ruling, written by appeals-court Judge John Badalamenti and joined by judges Nelly Khouzam and Marva Crenshaw. “The trial court's attempt to fit the victim's actions into the Legislature's `willing participant' mitigator is irreconcilable with the substantive nature of theft and cannot `reasonably justify' a departure (from the sentencing guidelines).”