JAVIER PENA CALLEJA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Javier Pena Calleja appealed an order denying his motion to correct an illegal sentence for attempted sexual battery and lewd assault charges. The court found that while his double jeopardy and departure sentence claims lacked merit, his sentencing guidelines scoresheet was improperly calculated because victim injury points were incorrectly assessed for attempted sexual battery, a crime for which victim injury is not an element.
The court held that victim injury points should not have been scored for attempted sexual battery because victim injury is not an element of that crime. The double jeopardy claim and departure sentence claim lacked merit. The sentences were vacated and the case remanded for resentencing with a corrected scoresheet.
[1] A court may at any time correct an illegal sentence or an incorrect calculation made in a sentencing guidelines scoresheet.
[2] Victim injury is not an element of the crime of attempted sexual battery.
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“Victim injury is not an element of the crime of attempted sexual battery.”
Establishes the core legal principle that victim injury points cannot be scored for attempted sexual battery charges under the applicable sentencing guidelines.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDefendant was charged with two counts of sexual battery on a child under 12 and two counts of lewd assault on a child under 16. He pled nolo contender…
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ORFINGER, Judge.
Defendant appeals from an order denying his motion to correct an illegal sentence. See Rule 3.800(a), Fla.R.Crim.P. His double jeopardy claim and his claim that his split sentence is, in effect, a departure sentence have no merit, but we do find that his sentencing guidelines scoresheet was improperly calculated.
Rule 3.800(a) provides in pertinent part: (a) A court may at any time correct an illegal sentence imposed by it or an incorrect calculation made by it in a sentencing guidelines scoresheet.
Appellant was charged with two counts of sexual battery on a child under the age of 12 years, and two counts of lewd assault upon a child under 16 years of age. Defendant plead nolo contendere to two counts of attempted sexual battery on a child and to the two counts of lewd assault. In calculating the guidelines scoresheet, the trial court assessed points for victim injury, and in denying defendant’s motion to eliminate those points, the trial court asserted that the assessment of these points was valid for sexual battery. Elimination of these points reduces the defendant’s recommended guidelines sentence on the attempted sexual battery charges from 12-17 years’ imprisonment to 9-12 years.
Victim injury is not an element of the crime of attempted sexual battery.1 Beasley v. State, 503 So. 2d 1347 (Fla. 5th DCA 1987), affirmed, 518 So. 2d 917 (Fla.1988); Simmons v. State, 506 So. 2d 101 (Fla. 5th DCA 1987). Accord Baker v. State, 526 So. 2d 202 (Fla. 4th DCA 1988). Therefore, in accordance with the sentencing guideline rules applicable to this case, those points should not have been scored here.
Accordingly, we vacate the sentences and remand the case for resentencing on all counts, after preparation of a corrected scoresheet.
Sentences VACATED; REMANDED.
DAUKSCH and GOSHORN, JJ., concur. . Effective July 1, 1987, the Florida Legislature approved revisions to Florida Rule of Criminal Procedure 3.701, Sentencing Guidelines, recommended by the Florida Supreme Court, see 509 So. 2d 1088 (Fla.1987), to provide that victim injury would be scored for each victim physically injured during a criminal .episode or transaction. Chapter 87-110, § 1, Laws of Fla.1987. This revision does not apply to the case before the court because the crime was committed before the effective date of the revision.
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Calleja v. State, 562 So. 2d 395 (Fla. 5th DCA 1990)…COBB, Judge. This case appeared before this court last year, see Calleja v. State, 541 So. 2d 1340 (Fla. 5th DCA 1989). Therein, this court held that points assessed for victim injury were improperly added to the scoresheet and remanded this case to the trial court for resentencing. The trial court then imposed the same sentence, which Calleja no…
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Gregory v. State, 554 So. 2d 1216 (Fla. 2d DCA 1990)…ffect at the time that appellant committed the offenses. The third sub-issue appellant raises is that the court improperly scored points for victim injury since victim injury is not a necessary element of attempted sexual battery. Calleja v. State, 541 So. 2d 1340 (Fla. 5th DCA 1989). We agree and, accordingly, vacate appellant’s sentence and remand for resentencing with instructions not to score points for victim injury. Appellant’s second issue is whether the court improperly sentenced appellant for forger…
Authorities Cited
- FLA. RULES OF CRIM. PROCEDURE RE SENTENCING GUIDELINES (RULES 3.701 & 3.988), 509 So. 2d 1088 (Fla. 1987)
- Beasley v. State, 503 So. 2d 1347 (Fla. 5th DCA 1987)
- Beasley v. State, 518 So. 2d 917 (Fla. 1988)
- Baker v. State, 526 So. 2d 202 (Fla. 4th DCA 1988)
- Simmons v. State, 506 So. 2d 101 (Fla. 5th DCA 1987)