WILLIAM LEROY DAUM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Leroy Daum appeals his revocation sentencing, challenging the addition of eighty points to his guidelines score for victim injury. The court reverses, holding that because Daum pled no contest to lewd assault rather than sexual battery, he should have received only twenty points per count for 'contact but no penetration' rather than forty points for 'penetration or slight injury.'
The court held that the trial court erred in including forty points for 'penetration or slight injury' for counts I and III because Daum pled no contest to lewd assault, not sexual battery. Only twenty points for 'contact but no penetration' should have been assessed for each count. Additionally, the question of how many points should be scored for victim injury is a question of law that may be raised at any time, not subject to waiver if not raised at initial sentencing.
[1] A defendant may challenge the correctness of a sentencing guidelines scoresheet at any time, including at a revocation hearing.
[2] Points for victim injury may not be assessed for "penetration or slight injury" when a defendant is convicted of lewd assault, rather than sexual battery.
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Join FLexlaw to unlock all legal intelligence“We find that the trial court erred in allowing the inclusion of forty points for 'penetration or slight injury' for counts I and III since the appellant pled no contest to charges of lewd assault rather than sexual battery.”
The court's holding that victim injury points must correspond to the actual conviction
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Join FLexlaw to unlock all legal intelligenceDaum was charged with sexual battery on a child, attempted sexual battery on a child, lewd assault on a child, and lewd act in the presence of a child…
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[*1036] HALL, Judge.
William Leroy Daum appeals from the judgment and sentence imposed upon him following revocation of his community control. He argues that the trial court erred in allowing the addition of eighty points to his guidelines score for victim injury. We reverse.
The appellant was charged by information with: count I, sexual battery on a child; count II, attempted sexual battery on a child; count III, lewd assault on a child; and count IV, lewd act in the presence of a child.
Under a negotiated plea, the appellant pled no contest to lewd assault on a child, a lesser included offense of the sexual battery originally charged in count I, and to counts III and IV as charged. Under the terms of the agreement, the state entered a nolle prosequi to count II, attempted sexual battery on a child.
A scoresheet was prepared which included eighty points for victim injury (forty points for each count of lewd assault), specifically for “penetration or slight injury”. The appellant was sentenced below the guidelines in accordance with the negotiated plea to one year in county jail, followed by two years’ community control, followed by ten years’ probation for each count, all sentences to run concurrently.
The appellant then violated the terms of his community control. At the appellant’s violation hearing, a new scoresheet was prepared. The appellant’s score again included eighty points for victim injury. At that time and again at the sentencing hearing, the appellant objected to the eighty points and argued that since he was not convicted of sexual battery, he should not have been scored forty points for “penetration or slight injury” for each of the counts, I and III. The trial court rejected the appellant’s arguments and sentenced the appellant to twelve years in prison.
We find that the trial court erred in allowing the inclusion of forty points for “penetration or slight injury” for counts I and III since the appellant pled no contest to charges of lewd assault rather than sexual battery. See O’Bright v. State, 508 So. 2d 385 (Fla. 1st DCA 1987). Therefore, only twenty points for “contact but no penetration” should have been assessed for each of those counts.
The appellee argues that the appellant failed to contest the correctness of the guidelines scoresheet at the time the initial sentence was imposed and that he could not wait until the revocation hearing to challenge the scoresheet.
However, the question of how many points should be scored for victim injury is a question of law which may be raised at any time. Brown v. State, 508 So. 2d 522 (Fla. 2d DCA 1987).
Accordingly, we reverse this case and remand for correction of the scoresheet to reflect forty points for victim injury and for resentencing under the modified score-sheet.
SCHOONOVER, A.C.J., and THREADGILL, J., concur.
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Darian Wright v. State, 707 So. 2d 385 (Fla. 2d DCA 1998)…. Wright correctly argues that the new sentence imposed upon revocation of probation would be two cells lower than the original score. We agree that the trial court erred by allowing the inclusion of forty points for penetration. See Damn v. State, 544 So. 2d 1035, 1036 (Fla. 2d DCA 1989). The State argues that, even if the trial court erred by not correcting the scoresheet, Wright waived his right to appeal this sentencing issue because he failed to object at the original sentencing hearing. However, this co…
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Wilson v. State, 648 So. 2d 1219 (Fla. 2d DCA 1995)…ropriate, after a de novo hearing to determine the extent of victim injury. See Morris v. State, 605 So. 2d 511 (Fla. 2d DCA 1992). We reject the state’s argument that Wilson has waived these issues or that any error is harmless. See Daum v. State, 544 So. 2d 1035 (Fla. 2d DCA) (holding that the issue of victim injury points presents a question of law which may be raised at any time), review denied, 551 So. 2d 462 (Fla.1989); Najar v. State, 614 So. 2d 644, 645 (Fla. 2d DCA 1993) (holding that scoresheet erro…
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Luhrsen v. State, 702 So. 2d 596 (Fla. 2d DCA 1997)…generated these verdicts, it may be concluded that the jury specifically found no penetration. Accordingly, we conclude that the court erred in making a finding of penetration. See LaFlamme v. State, 586 So. 2d 66 (Fla. 2d DCA 1991); Daum v. State, 544 So. 2d 1035 (Fla. 2d DCA 1989); O’Bright v. State, 508 So. 2d 385 (Fla. 1st DCA 1987). Appellant’s sentence is vacated and the trial court is directed to resentence appellant in accord with this opinion. THREADGILL and QUINCE, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 508 So. 2d 522 (Fla. 2d DCA 1987)
- O'Bright v. State, 508 So. 2d 385 (Fla. 1st DCA 1987)