Opinion
No. 91-3011.
April 7, 1993. Rehearing Denied May 7, 1993.
Appeal from the Circuit Court, St. Lucie County, Marc A. Cianca and Dan L. Vaughn, JJ.
Richard L. Jorandby, Public Defender and Eric M. Cumfer, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and James J. Carney, Asst. Atty. Gen., West Palm Beach, for appellee.
Defendant appeals his sentence because his scoresheet improperly included additional points for victim injury. We reverse.
Defendant pled guilty to one count of sexual battery. The state does not claim that there was any evidence of physical injury to the victim. The crime does not have an element of injury to the victim, only an element of sexual penetration. Victim injury points should not be assessed for mere sexual penetration in the absence of physical injury. Karchesky v. State, 591 So.2d 930 (Fla. 1992); Boland v. State, 613 So.2d 72 (Fla. 4th DCA 1993). After the victim injury points are deducted, the sentence is excessive. We remand to the trial court with directions to correct defendant's scoresheet and for resentencing.
Reversed and remanded.
DELL, FARMER and KLEIN, JJ., concur.