PETER PISANO, APPELLANT/CROSS-APPELLEE,
v.
STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT
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Peter Pisano appealed his convictions and sentences for three counts of sexual battery. The appellate court found merit in his challenge to the imposition of costs without proper notice and identified reversible error in the trial court's calculation of victim injury points under the sentencing guidelines, requiring resentencing with corrected guidelines calculations.
The court held that costs must be reversed because they were imposed without proper notice, opportunity to object, or statutory authority, and the written order did not conform to the court's oral pronouncement. Additionally, the trial court erred in scoring only 40 points for victim injury; the guidelines required scoring 40 points for each count involving victim injury, resulting in 120 total points for the three convictions.
[1] Costs may not be imposed without proper notice, opportunity to object, or statutory authority, and the written order must conform to the oral pronouncement at sentencing.
[2] Error in calling a former girlfriend as a court witness, if any, is harmless when the state cannot vouch for her credibility.
Previewing 2 of 5 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“Victim injury shall be scored additionally for each count where victim injury is an element of each offense at conviction in excess of one count as to each victim.”
The amended sentencing guidelines rule that requires separate victim injury scoring for each count, even when there is only one victim
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePisano was convicted of three counts of sexual battery on a single victim. Each count involved penetration or slight injury as established by trial ev…
The full statement of facts, procedural history, and disposition for this case are member content.
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DANAHY, Judge.
In this appeal from convictions and sentences for three counts of sexual battery, the appellant raises five issues and, on cross-appeal, the state raises one. We find merit only in one of the appellant’s issues, i.e., that costs were imposed without proper notice, opportunity to object, or statutory authority and that the written order does not conform to the court’s oral pronouncement at the sentencing hearing. Accordingly, we reverse on this issue on the authority of Daniels v. State, 524 So. 2d 1165 (Fla. 2d DCA 1988), and Stewart v. State, 522 So. 2d 518 (Fla. 2d DCA 1988). Our reversal is without prejudice to the state to seek costs anew after affording the appellant proper notice and opportunity to be heard.
Addressing briefly one other issue raised by appellant — that the court erred in calling a former girlfriend of the appellant’s as a court witness because the state could not vouch for her credibility — we find error, if any, to be harmless. See London v. State, 13 F.L.W. 2498 (Fla. 4th DCA Nov. 16, 1988).
We turn now to the state’s cross-appeal where we find further reversible error in this case. On the appellant’s sentencing guidelines scoresheet, the court scored the 40 points indicated for “penetration or slight injury.” The state argues that since the appellant was convicted of three separate sexual batteries on this victim, each one involving penetration or slight injury as shown by the evidence adduced at trial, the court should have scored 40 points for each offense, for a total of 120 points for victim injury. The appellant argues in opposition that the sentencing guidelines in effect at the time he committed his crimes (June 1986) made no provision for separate sentences where there were separate penetrations of, or slight injury to, but a single victim. The relevant portion of the committee note to Florida Rule of Criminal Procedure 3.701(d)(7) in effect at that pertinent date stated:
This provision implements the intention of the commission that points for victim injury be added only when the defendant is convicted of an offense (scored as either primary or additional offense) which includes physical impact or contact. Victim injury is to be scored for each victim for whom the defendant is convicted of injuring and is limited to physical trauma.
Thus, the appellant argues, the trial court was correct in scoring only 40 points because there was only one victim. Subsequent to this version of the rule, the supreme court amended rule 3.701(d)(7) to add the following sentence to the committee note:
Victim injury shall be scored additionally for each count where victim injury is an element of each offense at conviction in excess of one count as to each victim.
In explaining the rationale for the revision, the supreme court said that the amendment was intended to clarify the existing language which had been causing confusion. The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 468 So. 2d 220, 221 (Fla.), readopted and re-recommended, 482 So. 2d 311 (Fla.1985); enacted in Ch. 86-273, § 2, Laws of Fla. We note the mandatory language of scoring separate offenses causing injury even where there is only one victim injured. Consequently, we must reverse the trial court and remand for a recalculation of the appellant’s guidelines scoresheet to reflect 120 points for victim injury (i.e., 40 points for each of the appellant’s three convictions).
The judgments of the trial court are affirmed, thé sentences are vacated, and the cause is remanded for resentencing in accordance with this opinion.
RYDER, A.C.J., and SCHOONOVER, J., concur.
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Pisano v. State, 554 So. 2d 1165 (Fla. 1990)…PER CURIAM. We accepted Pisano v. State, 539 So. 2d 486 (Fla. 2d DCA 1988), based on apparent conflict with decisions of other district courts of appeal. Upon examination of the record and the briefs, we have determined that jurisdiction was granted improvidently. Accordingly, this cause is dismissed.…
Authorities Cited
- The Fla. Bar re: Rules of Crim. Procedure (sentencing Guidelines, 482 So. 2d 311 (Fla. 1985)
- THE FLA. BAR: AMENDMENT TO RULES OF CRIM. PROCEDURE (3.701, 468 So. 2d 220 (Fla. 1985)
- Daniels v. State, 524 So. 2d 1165 (Fla. 2d DCA 1988)
- Stewart v. State, 522 So. 2d 518 (Fla. 2d DCA 1988)