ROBERT LEE THOMPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1985-05-10
No. 84-1986
RYDER, C.J., and SCHEB and HALL, JJ., concur.
483 So. 2d 1 Florida District Court of Appeal, Second District (1985) Negative Treatment
Cited by 22 cases
Topics
Florida Sentencing Guidelines

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Affirmed.

RYDER, C.J., and SCHEB and HALL, JJ., concur.

Other
PER CURIAM.

PER CURIAM.

Although Appellant Robert Lee Thompson’s motion for rehearing en banc fails to comply with Florida Rule of Appellate Procedure 9.331(c)(1), we treat the motion as a motion for rehearing. See Havener v. Havener, 473 So. 2d 708 (Fla. 2d DCA 1985).

In his motion Defendant Thompson asserts that this court overlooked the fact that in sentencing him points for victim injury were erroneously scored under the sentencing guidelines. We agree.

Defendant was convicted of carnal intercourse with an unmarried female under the age of eighteen years in violation of section 794.05, Florida Statutes (1983). The evidence at trial revealed that when the victim, defendant’s stepdaughter, was about eight years old, the defendant began fondling her. This behavior culminated in sexual intercourse when the victim was approximately eleven years old. As a result of the sexual relations with her stepfather, the victim became pregnant at the age of fourteen, eventually giving birth to a son.

Defendant received a total of 386 points on the guidelines scoresheet, placing him in the twelve-to-seventeen years recommended incarceration range. Eighty-five of those points were assessed for serious injury to the victim. Defendant objected to this particular point assessment. On August 27, 1984, the trial judge sentenced defendant to fifteen years in prison.

Since victim injury is not an element of the offense of carnal intercourse, see section 794.05, the trial court erred in assessing the eighty-five points. Cannada v. State, 472 So. 2d 1296 (Fla. 2d DCA 1985); see also Parker v. State, 478 So. 2d 823 (Fla. 2d DCA 1985); Hendry v. State, 460 So. 2d 589 (Fla. 2d DCA 1984); Toney v. State, 456 So. 2d 559 (Fla.2d DCA 1984). This error was harmful because it placed defendant in a higher category than if the points were not assessed. Absent their assessment, defendant’s total points would have been 301, placing him in the seven-to-nine year incarceration range.

Accordingly, we grant defendant’s motion for rehearing only to the extent that we vacate his sentence and remand for resentencing. We adhere to our affirmance of defendant’s conviction. While points for victim injury may not be included on the scoresheet, physical or mental trauma of the victim may be cited as a reason for departure from the guidelines. Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984). On remand, the trial judge may consider whether there are clear and convincing reasons to deviate from the sentencing guidelines provided the dictates of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), are followed.

RYDER, C.J., and SCHEB and HALL, JJ., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By (11 total)

  • Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
    …en years necessarily requires physical contact which allows, in every instance, victim-injury points to be assessed in calculating the sentencing guideline scoresheet for this offense. The Fifth District acknowledged conflict with Thompson v. State, 483 So. 2d 1 (Fla.2d DCA 1985), and certified the following question as being of great public importance: WHETHER POINTS MAY BE ASSESSED FOR PENETRATION UNDER VICTIM INJURY IN CALCULATING THE SENTENCING GUIDELINES SCORESHEET FOR “CATEGORY 2: SEXUAL OFFENSES” FO…
  • Silas v. Morris, 605 So. 2d 511 (Fla. 2d DCA 1992)
    …tration which does not cause ascertainable physical injury ... does not result in victim injury as contemplated by the rule.” 591 So. 2d at 932. See also In re Florida Rules of Criminal Procedure, 509 So. 2d 1088, 1089 (Fla.1987); Thompson v. State, 483 So. 2d 1 (Fla. 2d DCA 1985); Committee Note, Fla. R.Crim.P. 3.701(d)(7). The problem can be traced to the form scoresheet utilized for sex offenders — the so-called “category 2 offenses.” Fla. R.Crim.P. 3.988(b). As noted by former Chief Justice Shaw in his…
  • Tyner v. State, 491 So. 2d 1228 (Fla. 2d DCA 1986)
    …t is not an element of the offense. Hendry v. State, 460 So. 2d 589 (Fla. 2d DCA 1984). However, this court has held that when victim injury is not an element of the crime, it may be used as a reason to depart from the guidelines. Thompson v. State, 483 So. 2d 1 (Fla. 2d DCA 1985). Departures have also been upheld where the manner in which the crime was committed endangered the safety of others. Campbell v. State, 486 So. 2d 61 (Fla. 4th DCA 1986); Cawthon v. State, 486 So. 2d 90 (Fla. 5th DCA 1986). Notwi…

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