Summary
reversing summary denial of 3.800 motion relying on Karchesky
Summary of this case from Harper v. StateOpinion
No. 93-00957.
April 21, 1993. Rehearing Denied May 13, 1993.
Appeal from the Circuit Court, Lee County, Wiliam J. Nelson, J.
John Linkous appeals the summary denial of his motion to correct sentence.
Of the two issues raised in the motion, one is sufficient to require further proceedings. Linkous, who was convicted of engaging a minor in sexual activity, alleges that his sentencing guidelines scoresheet included 240 points for "victim injury" although no actual physical trauma was suffered by the victim. See Karchesky v. State, 591 So.2d 930 (Fla. 1992). Assuming his claim is factually correct, deletion of the scoresheet points would affect the presumptive sentence.
The trial court denied the motion on the authority of Perryman v. State, 608 So.2d 528 (Fla. 1st DCA 1992), which states that a contemporaneous objection is necessary to preserve the Karchesky issue for appellate review. However, this court has held otherwise. Morris v. State, 605 So.2d 511 (Fla. 2d DCA 1992). The trial court was obligated to follow Morris; Chapman v. Pinellas County, 423 So.2d 578 (Fla. 2d DCA 1982); and should do so after remand. And see Harrelson v. State, 616 So.2d 128 (Fla. 2d DCA 1993). We acknowledge conflict between Morris and Perryman.
The trial court properly denied relief as to the second issue raised in Linkous's motion, and we affirm the remainder of the court's order.
Affirmed in part, reversed in part, and remanded with instructions.
FRANK, A.C.J., and HALL and THREADGILL, JJ., concur.