PETER SCHRAFFA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Peter Schraffa was convicted of aggravated child abuse by maliciously punishing a child and sentenced under Florida's sentencing guidelines. On appeal, he challenged the inclusion of victim injury points in his sentencing scoresheet, arguing that physical injury is not a necessary element of the crime of malicious punishment under section 827.03(1)(c). The court agreed and reversed the sentence.
Victim injury points should not have been assessed in the sentencing scoresheet because, although physical injury occurred, it is not a necessary element of the crime of malicious punishment. However, victim injury may still be considered as a basis for departure from guideline sentences when it is not a necessary element of the offense.
[1] Victim injury points should not be assessed when victim injury is not a necessary element of the crime charged and of which the accused is convicted.
[2] A fundamental computational error in a scoresheet may be raised on appeal for the first time.
Previewing 2 of 4 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“In order to assess victim injury points the law requires not only that physical injury be inflicted, but that it be a necessary element of the crime with which the accused is charged and of which the accused is convicted.”
Establishes the legal standard for when victim injury points may be assessed under sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceSchraffa was charged with two counts: maliciously punishing a child and permitting physical injury to a different child. A jury found him guilty of th…
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GLICKSTEIN, Judge.
Peter Schraffa was charged by information with two criminal acts: count I, maliciously punishing a child, and count II, permitting physical injury to a different child. Schraffa was tried to a jury, which found him guilty of the first count, but not guilty of the second. Schraffa was immediately adjudicated guilty. Schraffa unsuccessfully moved for new trial and to dismiss, and he was subsequently sentenced to a term of 4¾⅛ years in prison, with credit for time served.
Appellant argues that because victim injury is not a necessary element of the felony of aggravated child abuse by maliciously punishing a child, under section 827.03(1)(c), Florida Statutes (1985), with which appellant was charged, there are eight points both in the prosecutor’s point count and in the defense counsel’s calculation that are incorrect. See, e.g., Wright v. State, 487 So. 2d 1176 (Fla. 1st DCA 1986); Thompson v. State, 483 So. 2d 1 (Fla. 1st DCA 1985); Whitfield v. State, 471 So. 2d 633 (Fla. 1st DCA 1985); Motyka v. State, 457 So. 2d 1114 (Fla. 1st DCA 1984).
The charge against appellant was that he maliciously punished the child by repeatedly striking him with his hand, causing massive bruises on his buttocks and genital area, contrary to section 827.03(l)(c) Florida Statutes. In order to assess victim injury points the law requires not only that physical injury be inflicted, but that it be a necessary element of the crime with which the accused is charged and of which the accused is convicted. Here Schraffa was charged in the information with causing physical trauma, but the crime charged is that identified at section 827.03(l)(c) — aggravated child abuse by maliciously punishing a child. While the punishment appellant inflicted on the child clearly involved physical injury, malicious punishment in the abstract need not involve it. We reluctantly conclude the points for victim injury should not have been assessed.
Such a computational error is fundamental. It may be raised on appeal for the first time. State v. Chaplin, 490 So. 2d 52 (Fla.1986). Rule 3.800(a), Florida Rules of Criminal Procedure, permits the trial court to correct such a computational error. Accordingly, we reverse the sentence and remand with instruction that a correctly calculated scoresheet be prepared and used.
Victim injury can, however, be the basis for departure from a guidelines sentence when victim injury is not a necessary element of the offense. E.g., Wright v. State, 487 So. 2d 1176, 1177 (Fla. 1st DCA 1986), and cases cited therein. Accordingly, the trial court, on remand, may consider whether departure should be ordered. Chaplin, 490 So. 2d at 53 n. 1.
LETTS and GUNTHER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Herbert v. State, 526 So. 2d 709 (Fla. 4th DCA 1988)…ly harm, permanent disability, or permanent disfigurement.”2 Otherwise, persons in positions of authority over children would have no way to judge the propriety of their conduct under the criminal standard. Kama, at 156. See also Schraffa v. State, 508 So. 2d 755 (Fla. 4th DCA 1987), in which it was stated that malicious punishment may not necessarily involve physical injury. The cases construing section 827.03 reflect that the classification of a parent’s disciplinary conduct as either permissible or not pe…
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Bryant Wright v. State, 538 So. 2d 497 (Fla. 3d DCA 1989)…1986), review dismissed, 504 So. 2d 403 (Fla.1987). Thus, victim injury may support a departure from sentencing guidelines. Hansbrough v. [*499] State, 509 So. 2d 1081 (Fla.1987); Hayes v. State, 516 So. 2d 318 (Fla. 2d DCA 1987); Schraffa v. State, 508 So. 2d 755 (Fla. 4th DCA 1987). Furthermore, the trial court’s second reason for departure, the use of excessive and cruel force in perpetrating the offense, constitutes grounds for departure from the recommended sentence. State v. McCall, 524 So. 2d 663 (Fla…
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Andrews v. State, 510 So. 2d 645 (Fla. 2d DCA 1987)…years range. We agree. Victim injury was not an element of the crime for which the appellant was convicted. It could be used as a reason for departure, but it could not be used in calculating his presumptive guidelines sentence. Schraffa v. State, 508 So. 2d 755 (Fla. 4th DCA 1987); Parker v. State, 478 So. 2d 823 (Fla. 2d DCA 1985). Finally, the community service requirement imposed upon the appellant pursuant to section 27.3455, Florida Statutes (1985), violates the prohibition against ex post facto laws…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Chaplin, 490 So. 2d 52 (Fla. 1986)
- Whitfield v. State, 471 So. 2d 633 (Fla. 1st DCA 1985)
- Wright v. State, 487 So. 2d 1176 (Fla. 1st DCA 1986)
- Thompson v. State, 483 So. 2d 1 (Fla. 2d DCA 1985)
- Motyka v. State, 457 So. 2d 1114 (Fla. 1st DCA 1984)