OSCAR KAY CARTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carter was convicted of four counts of attempted sexual battery and one count of lewd conduct with a child. The appellate court affirmed the convictions but vacated the sentences, finding the trial court erred by imposing consecutive sentences exceeding the sentencing guidelines without stating a departure reason.
The court held that charges under Florida's sexual battery statute may be brought by information rather than indictment because the death penalty is no longer available; the trial court correctly applied current sentencing guidelines; and the trial court erred in imposing four consecutive 12-year sentences without stating a departure reason, as all offenses required a single scoresheet and the total sentence could not exceed the guidelines maximum unless departure was stated in writing.
[1] A defendant may be charged by information, rather than indictment, for sexual battery upon a person 11 years of age or younger by a person over the age of 18, when the de…
[2] A twelve-person jury is not required when a defendant is tried for a crime classified as capital, but for which the death penalty is no longer possible.
Previewing 2 of 6 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“Because the death penalty is no longer possible for crimes charged under section 794.011(2), a twelve person jury is not required when a defendant is tried under that statute.”
Establishes that charges can be brought by information rather than indictment when the death penalty is unavailable.
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Join FLexlaw to unlock all legal intelligenceCarter was charged with sexual battery upon a person 11 years of age or younger and committing a lewd and lascivious act in the presence of a child. T…
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ORFINGER, Judge.
The defendant appeals from his conviction on four counts of attempted sexual battery and one count of committing a lewd and lascivious act in the presence of a child, and from his sentences imposed as a result. We affirm the convictions, but vacate the sentences and remand for resentencing.
There is no merit to appellant’s contention that the original charges of sexual battery upon a person 11 years of age or younger by a person over the age of 18 should have been presented by indictment rather than by information. Although section 794.011(2), Florida Statutes (1983) classifies this crime as a “capital felony,” it is not capital in the sense that a defendant might be put to death. Buford v. State, 403 So. 2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982).
Because the death penalty is no longer possible for crimes charged under section 794.011(2), a twelve person jury is not required when a defendant is tried under that statute. State v. Hogan, 451 So. 2d 844 (Fla.1984).
Inasmuch as the crime is no longer “capital” in the sense that the death penalty may be imposed or that a twelve person jury would be required to try the case, we conclude, as have other district courts of appeal, that the defendant may be charged with this crime by information, rather than by indictment. See State v. Wells, 466 So. 2d 291 (Fla. 2d DCA 1985); Snowden v. Donner, 464 So. 2d 223 (Fla. 3d DCA), rev. dismissed, 469 So. 2d 750 (Fla.1985); Cooper v. State, 453 So. 2d 67 (Fla. 1st DCA 1984).
Because Milliken v. State, 398 So. 2d 508 (Fla. 5th DCA 1981) was decided before Buford outlawed the death penalty for this crime, it is no longer apposite.
Neither do we find merit in appellant’s argument that the court should have applied the sentencing guidelines in effect at the time the crimes were committed. The trial court correctly applied the guidelines in effect at the time of sentencing, because modification of the guidelines is procedural. State v. Jackson, 478 So. 2d 1054 (Fla.1985).
We do agree, however, with appellant’s contention that the trial court erred in imposing four consecutive 12 year terms of imprisonment for the four attempted sexual battery convictions.
The trial court justified these sentences because it considered each offense as “independent transactions,” but such reasoning does not square with the sentencing guidelines requirements. All the charges were before the court for sentencing at the same time. This court has previously held that a single scoresheet must be used for all offenses pending before the court for sentencing. Gallagher v. State, 476 So. 2d 754 (Fla. 5th DCA 1985); Fla.R.Crim.P. 3.701(d)(1). While a separate sentence must be imposed for each offense, the total sentence cannot exceed the total guidelines sentence (in this case, 9-12 years’ imprisonment) unless a written reason for departure is given. The trial judge did not state that he was departing from the guidelines.
Accordingly, the sentences are vacated and the cause is remanded for resentencing in accordance with the sentencing guidelines unless a clear and convincing reason for departure is stated in writing. Fla.R. Crim.P. 3.701(d)(ll).
Convictions AFFIRMED. Sentences VACATED and REMANDED for resentencing.
DAUKSCH and COWART, JJ., concur.
ORFINGER, Judge.
The petition for rehearing is denied. However, as did the court in Wilkerson v. State, 480 So. 2d 213 (Fla. 1st DCA, 1985), we certify to the Supreme Court of Florida, the following question as one of great public importance:
WHETHER ALL SENTENCING GUIDELINES AMENDMENTS ARE TO BE CONSIDERED PROCEDURAL IN NATURE SO THAT GUIDELINES AS MOST RECENTLY AMENDED SHALL BE APPLIED AT TIME OF SENTENCING WITHOUT REGARD TO THE EX POST FACTO DOCTRINE.
PETITION DENIED. QUESTION CERTIFIED.
DAUKSCH and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Disinger v. State, 526 So. 2d 213 (Fla. 5th DCA 1988)…appellant disputed. The guidelines do not apply to the sexual battery charges here because they are still classified as capital offenses, although the death penalty no longer applies. See Rusaw v. State, 451 So. 2d 469 (Fla.1984); Carter v. State, 483 So. 2d 740 (Fla. 5th DCA 1986). However, the guidelines do apply to the indecent assault charge, and a scoresheet should have been used. Although the State argues that even if the sentence on the indecent assault charge is incorrect, it will not affect appella…
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van Horn v. State, 485 So. 2d 1380 (Fla. 3d DCA 1986)…require, retroactive application of guideline amendments in all cases. See Jones v. State, 482 So. 2d 586 (Fla. 1st DCA 1986); Kerr v. State, 481 So. 2d 1233 (Fla. 2d DCA 1985); Inscore v. State, 480 So. 2d 218 (Fla. 4th DCA 1985); Carter v. State, 483 So. 2d 740 (Fla. 5th DCA 1986). . In my view, this is not the case because, as Hoffman v. Jones, 280 So. 2d 431 (Fla.1973) says, district courts lack the juridical authority to do anything but follow the latest opinion of the Supreme Court of Florida. I think…1 / 2
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Foster v. State, 491 So. 2d 328 (Fla. 1st DCA 1986)…shed that while a separate sentence must be imposed for each offense, the total sentence cannot exceed the total guidelines sentence unless a written reason for departure is given. White v. State, 489 So. 2d 115 (Fla. 1st DCA 1986); Carter v. State, 483 So. 2d 740 (Fla. 5th DCA 1986); Fla.R.Crim.P. 3.701(d)(12). In the present case, no written reason for departure was given by the trial judge. Accordingly, the sentences are vacated and the cause is remanded for resentencing in accordance with the sentencing…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Buford v. State, 403 So. 2d 943 (Fla. 1981)
- State v. Hogan, 451 So. 2d 844 (Fla. 1984)
- Bagstad v. Orange Cnty. Transit Dist., 454 U.S. 1163 (U.S. 1982)
- Johns-Manville Corp. v. White, 454 U.S. 1163 (U.S. 1982)
- Gallagher v. State, 476 So. 2d 754 (Fla. 5th DCA 1985)
- Wilkerson v. State, 480 So. 2d 213 (Fla. 1st DCA 1985)
- Cooper v. State, 453 So. 2d 67 (Fla. 1st DCA 1984)
- State v. Wells, 466 So. 2d 291 (Fla. 2d DCA 1985)
- Milliken v. State, 398 So. 2d 508 (Fla. 5th DCA 1981)