Summary
holding court must consider whether "the trial judge would have imposed the same departure sentence notwithstanding the scoresheet error."
Summary of this case from Rubin v. StateOpinion
No. 89-03268.
October 11, 1991.
Appeal from the Circuit Court, Hillsborough County, M. William Graybill, J.
Peter J. Grilli of Alpert, Josey Grilli, P.A., and Edward Michael Brennan, Tampa, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Elaine L. Thompson, Asst. Atty. Gen., Tampa, for appellee.
Appellant challenges his convictions and sentences for multiple counts of sexual battery, false imprisonment and aggravated battery. The trial judge departed from the recommended guidelines sentence on the basis of "extreme brutality on the part of defendant resulting in severe permanent physical and mental injury to victim." Since the injuries sustained far exceeded that required to commit the charged crimes, the facts here justify departure based on the reason stated. The amount of force used is a proper consideration. Jefferson v. State, 489 So.2d 860 (Fla. 1st DCA 1986).
We find no error in either appellant's convictions or his sentences. The scoresheet, however, improperly assessed victim injury for six separate convictions for sexual battery. Victim injury may not be scored for each count but can be scored only once according to its cumulative severity. Stermer v. State, 567 So.2d 13 (Fla. 2d DCA 1990). Even so, we find beyond a reasonable doubt that the trial judge would have imposed the same departure sentence notwithstanding the scoresheet error. Brown v. State, 508 So.2d 522 (Fla. 2d DCA 1987).
We affirm appellant's convictions and sentences. We do remand to the trial court, however, for correction of the scoresheet to score victim injury only once according to its cumulative severity.
SCHOONOVER, C.J., and CAMPBELL and PARKER, JJ., concur.