Opinion
No. 94-504.
April 21, 1995.
Appeal from the Circuit Court, Orange County, Dorothy J. Russell, J.
James B. Gibson, Public Defender, and M.A. Lucas, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Lori E. Nelson, Asst. Atty. Gen., Daytona Beach, for appellee.
Perry argues the two 30-year concurrent sentences he received for sexual battery, kidnapping, and uttering a forgery, are in excess of the sentencing guidelines because the scoresheet included 40 points for victim injury based solely on "penetration." The crimes were committed in 1990. He was sentenced in 1994 after violating his probation. We agree and vacate Perry's sentences.
§ 794.011(5), Fla. Stat. (1989).
§ 787.01, Fla. Stat. (1989).
§ 831.02, Fla. Stat. (1989).
In this record the scoresheet form assessing points gives the option of "moderate or penetration;" and is filled in "penetration." I fail to see how this record creates any doubt or ambiguity about why the 40 victim injury points were assessed. It could only have been for penetration.
The state concedes that at the time the offenses were committed, victim injury points could not be assessed for "penetration" alone. Karchesky v. State, 591 So.2d 930 (Fla. 1992); Patterson v. State, 641 So.2d 456 (Fla. 5th DCA 1994); Goodwin v. State, 600 So.2d 1310 (Fla. 5th DCA 1992). Although the legislature amended section 921.001 in 1992 to allow victim injury points to be assessed for "penetration," this amendment cannot be retroactively applied to crimes committed prior to its effective date. Fulkroad v. State, 640 So.2d 1160 (Fla. 2d DCA 1994), rev. denied, 649 So.2d 235 (Fla. 1994); Mitchell v. State, 635 So.2d 1073 (Fla. 1st DCA 1994); Weckerle v. State, 626 So.2d 1038 (Fla. 4th DCA 1993); Harrelson v. State, 616 So.2d 128 (Fla. 2d DCA 1993), rev. denied, 624 So.2d 268 (Fla. 1993); Morales v. State, 613 So.2d 922 (Fla. 3d DCA), rev. denied, 623 So.2d 494 (Fla. 1993).
Ch. 92-135, Laws of Florida (1992).
In this case, the judge sentenced Perry to two concurrent 30-year prison sentences for sexual battery and kidnapping and 5 years for uttering a forgery, to run concurrent with the two 30-year sentences. If the 40 victim injury points are deducted from the total score (436 — 40 = 396), Perry should have been sentenced in the lower bracket, which would have allowed a "permitted" prison term of 9 to 22 years. Bumping the bracket up because of the violation of probation would have permitted a higher sentencing range of 12 to 27 years. But, a 30-year sentence in this case constitutes a "departure" without written reasons, although it is clear the trial judge did not intend to impose a departure sentence.
Fla.R.Crim.P. 3.701d.14.
Accordingly, we vacate the sentences and remand for resentencing pursuant to a corrected score sheet.
Sentences VACATED; REMANDED.
HARRIS, C.J., concurs and concurs specially with opinion.
GRIFFIN, J., dissents with opinion.
I concur with Judge Sharp's analysis of the appropriate law in this case. I write to respond to the legitimate concerns expressed in the dissent.
We simply cannot ignore the binding effect of Karchesky v. State, 591 So.2d 930 (Fla. 1992), on this case. The fact that the legislature, unhappy with Karchesky, amended the law does not affect those crimes committed before the amendment.
Concerning the issue of whether this record adequately indicates that the victim suffered no injury other than penetration, it must be noted that the information alleged that Perry "used physical force and violence not likely to cause serious personal injury." Further, in its response, the state all but concedes that there was no "ascertainable physical injury" in this case. It urges, instead, that "psychic trauma" may justify departure. The majority opinion herein merely requires resentencing with a corrected scoresheet. It does not preclude departure — up or down — if appropriate reasons exist.
I respectfully dissent. This defendant committed a sexual battery in 1990. It appears that the defendant coaxed a fourteen year old girl who was walking home from a party into a residence and had intercourse with her while three other individuals held her down. He was adjudicated guilty and sentenced on May 13, 1992. Five months earlier, in January 1992, the Supreme Court of Florida decided Karchesky. The legislature responded immediately and, effective April 8, 1992, Karchesky was undone. The sentencing guidelines scoresheet in this case reflects the inclusion of 40 points for "penetration." It is impossible to tell from this record before us whether the scoresheet was prepared in light of Karchesky or in ignorance of Karchesky. Whether the statutory amendment was considered is also a mystery. There is no suggestion in the record that any effort was ever made to correct any scoresheet "error." Further, when the defendant was sentenced below, after violation of probation, this issue was not even mentioned.
Appeal from resentencing upon violation of probation is not the proper time to assert such errors in the original scoresheet. We have no record at all upon which we could confidently reach a conclusion about whether this fourteen year old victim was "injured," or not. If appellant had raised this issue below or had offered any evidence that, indeed, there had been no victim injury within the meaning of Karchesky, I could agree with the majority. But this defendant has failed to utilize any of the many remedies available to him. I would therefore affirm the conviction and sentence. At most, this matter should merely be remanded for a proper evidentiary hearing on the question of victim injury in order to determine what this criminal defendant's correct scoresheet total should be. See Morris v. State, 605 So.2d 511 (Fla. 2d DCA 1992).
In fact, by the time this issue was first raised, the time to seek relief under Rule 3.850 had expired.