GARY MOORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Moore appeals his sentence for a lewd and lascivious assault on a child, challenging the trial court's application of amended sentencing guidelines that became effective after his offense. The court reverses, finding the ex post facto application of the amended guidelines violated the Constitution, though it upholds the trial court's assessments of victim injury points and prior conviction points.
The court reversed on the ex post facto issue, finding the application of amended guidelines that increased punishment for an offense committed before their effective date violates the Ex Post Facto Clause. The court affirmed that victim injury points were properly assessed because the information charged the crime in the disjunctive and the statute allows physical contact as an element. The court affirmed that the defendant's admission of prior convictions, as reflected in the presentence investigation report, was sufficient verification.
[1] Sentencing guidelines amended subsequent to the commission of an offense cannot be applied if the amendment increases the punishment to the defendant's disadvantage, as s…
[2] Victim injury points may be assessed if victim injury is an element of any offense at conviction, even if the offense can also be committed without victim contact.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Inasmuch as the amended guidelines increased the punishment so as to alter Moore's situation to his disadvantage in relation to the date he committed the offense, their application in this case violates the ex post facto clause.”
Establishes the core holding that applying post-offense guideline amendments that increase punishment constitutes an ex post facto violation.
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Join FLexlaw to unlock all legal intelligenceMoore committed the offense of lewd, lascivious or indecent assault upon a child in April 1984. He pleaded guilty in June and was sentenced in Septemb…
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SHARP, Judge.
Moore appeals his sentence imposed under the amended guidelines. He claims the trial court made three errors: the application of the guidelines as amended subsequent to the date on which he committed the offense for which he was sentenced;1 the assessment of twenty points for victim injury; and the assessment of ten points for prior convictions. We reverse, finding the trial court’s only error was its ex post facto application of the amended guidelines.
The defendant committed the offense of “lewd, lascivious or indecent assault or act upon or in the presence of a child” in April 1984. He pleaded guilty in June and was sentenced in September of 1984. Under the guidelines in effect on the date of the offense, Moore’s recommended sentence would have been any nonstate prison sanction. His recommended sentence under the amended guidelines was thirty months to three and one-half years incarceration. Without giving written reasons or intending to impose a “departure” sentence,2 the trial court sentenced him to three and one-half years imprisonment.
Inasmuch as the amended guidelines increased the punishment so as to alter Moore’s situation to his disadvantage in relation to the date he committed the offense, their application in this case violates the ex post facto clause. U.S. CONST., art. I, § 10; Art. I, § 10, Fla. Const.; Wilensky v. Fields, 267 So. 2d 1 (Fla.1972); Miller v. State, 468 So. 2d 1018 (Fla. 4th DCA 1985); Brown v. State, 460 So. 2d 427 (Fla. 5th DCA 1984); Carter v. State, 452 So. 2d 953, n. 3 at 954 (Fla. 5th DCA 1984). Even though we affirm the balance of this appeal, the sentence received exceeds the presumptive range for a “non-departing” sentence under the guidelines in effect at the time of the offense.
Next, Moore argues the trial court should not have assessed points for victim injury because the offense for which he was sentenced may be committed without victim contact. While this latter contention is true, the “lewd and lascivious assault” statute is written in the disjunctive so that physical contact may constitute an element.3 The information in the instant case charged the crime in the disjunctive. Thus, in this case, victim contact is an element of the offense for which the defendant was convicted. Under Florida Rule of Criminal Procedure 3.701(d)(7), “victim injury shall be scored if it is an element of any offenses at conviction.” Accordingly, the trial court did not err by assessing points for such “victim injury.”
The defendant’s third contention is that his own admission, reflected in the presentence investigation report, of having two prior convictions is an insufficient verification to allow the trial court to assess points for prior convictions. We disagree and find the defendant’s admission was sufficient.
Accordingly, we quash the sentence and remand for resentencing.
QUASHED AND REMANDED.
DAUKSCH and COWART, JJ., concur. . The supreme court amended the sentencing guidelines, Florida Rule of Criminal Procedure 3.701, effective July 1, 1984. The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988-Sentencing Guidelines), 451 So. 2d 824 (Fla.1984).
. Fla.R.Crim.P. 3.701(d)(ll).
. Section 800.04, Florida Statutes (1983) provides:
Any person who shall handle, fondle or make an assault upon any child under the age of fourteen years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without the intent to commit sexual battery shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083 or s. 775.084. (Emphasis added).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (21 total)
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Brown v. State, 508 So. 2d 522 (Fla. 2d DCA 1987)…1985). Where a statutory violation is capable of occurring in more than one manner, one of which involves physical contact, victim injury can be scored if the charging instrument alleges and the evidence demonstrate physical contact. Moore v. State, 469 So. 2d 947 (Fla. 5th DCA 1985), quashed on other grounds, 489 So. 2d 1130 (Fla.1986). However, Brown states he was charged under section 787.01(1)(a)(2), kidnapping with the intent to facilitate the commission of another felony, and that neither the informatio…
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Beasley v. State, 503 So. 2d 1347 (Fla. 5th DCA 1987)…ictim injury shall be scored if it is an element of any offenses at conviction.” This court has held that victim injury can be scored for a conviction of lewd, lascivious or indecent assault or act upon or in the presence of a child. Moore v. State, 469 So. 2d 947 (Fla. 5th DCA 1985), quashed on other grounds, 489 So. 2d 1130 (Fla.1986). The court noted that the lewd and lascivious assault statute was written in the disjunctive so that physical contact could constitute an element since the information charged…
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LEE v. State, 486 So. 2d 709 (Fla. 5th DCA 1986)…he trial court erred in scoring victim injury points for his primary offense of aggravated assault because victim injury is not an element of this offense. Appellant is cor [*710] rect in this argument. See Fla.R.Crim.P. 3.701(d)(7); Moore v. State, 469 So. 2d 947 (Fla. 5th DCA 1985). However, the state points out that this error is harmless because a correct computation of appellant’s recommended guideline sentence would still result in a recommendation of three years’ incarceration. Appellant next contends…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- THE Fla. BAR: Amendment to Rules of Crim. Procedure (3.701, 451 So. 2d 824 (Fla. 1984)
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)
- Miller v. State, 468 So. 2d 1018 (Fla. 4th DCA 1985)
- Wilensky v. Fields, 267 So. 2d 1 (Fla. 1972)
- Brown v. State, 460 So. 2d 427 (Fla. 5th DCA 1984)