OSCAR K. CARTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carter appeals his 17-year sentence for lewd and lascivious conduct and attempted sexual battery, arguing the trial court illegally assessed 80 victim injury points for crimes where victim injury was not an essential element. The appellate court agrees and quashes the sentence, holding that under the law in effect when the offenses occurred, victim injury points could not be assessed for attempted sexual battery.
The trial court erred in assessing victim injury points for attempted sexual battery because, before the 1987 amendment to the guidelines, victim injury was not an element of attempted sexual battery and such points could not be assessed. The sentence is quashed and the case is remanded for resentencing within the proper 5½ to 7 year guideline range.
[1] Victim injury points cannot be assessed for attempted sexual battery if victim injury is not an essential element of the charged offense under the sentencing guidelines i…
[2] A motion to correct an illegal sentence can be filed at any time.
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“At that time, points could be assessed for victim injury only if the injury constituted an essential element of the charged offense.”
Establishes the legal standard for victim injury point assessment at the time of the offenses.
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Join FLexlaw to unlock all legal intelligenceCarter committed offenses of committing a lewd and lascivious act in the presence of a child and four counts of attempted sexual battery in March and …
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W. SHARP, Judge.
Carter appeals from the trial court’s summary denial of his rule 3.800 motion to correct an illegal sentence.1 He received a 17-year sentence for one count of committing a lewd and lascivious act in the presence of a child2 and four counts of attempted sexual battery.3 He argues his sentence greatly exceeds the applicable guideline range of 5V2 to 7 years because the trial court erroneously added 80 victim injury points for the four attempted sexual batteries. We agree and quash the sentence.
These criminal offenses took place in March and April of 1984. At that time, points could be assessed for victim injury only if the injury constituted an essential element of the charged offense. The trial court assessed the injury points in this case under the category of “contact but no penetration.”
Before the 1987 amendment to the guidelines expanded the scope for scoring victim injury points,4 it was repeatedly held that victim injury was not an element of attempted sexual battery, and victim injury points could not be assessed. See Collier v. State, 535 So. 2d 316 (Fla. 1st DCA 1988); Baker v. State, 526 So. 2d 202 (Fla. 4th DCA 1988); Simmons v. State, 506 So. 2d 101 (Fla. 5th DCA 1987). Those cases are controlling in this case.5 Accordingly, we quash the sentence and remand for resentencing within the 5½ to 7 year sentencing bracket.
Sentence QUASHED; REMANDED for resentencing.
DANIEL, C.J., and GRIFFIN, J., concur. . We find that Carter’s motion challenging the legality of his sentence was timely, since it can be filed at any time. Fla.R.Crim.P. 3.800(a). See also State v. Whitfield, 487 So. 2d 1045 (Fla.1986).
. § 800.04, Fla.Stat. (1983).
. §§ 777.04(1) and 794.011, Fla.Stat. (1983).
. The committee notes to Florida Rule of Criminal Procedure 3.701 were amended in 1987 to state that victim injury need not be an element of a crime for which the defendant is convicted, and points may be assessed for victim injury any time the victim receives physical trauma during the criminal transaction or episode.
.See Smith v. State, 526 So. 2d 1060 (Fla. 1st DCA 1988).
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Citator
Cited By
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Emory W. McGOWAN v. State, 586 So. 2d 1311 (Fla. 5th DCA 1991)…llegal sentence under Florida Rule of Criminal Procedure 3.800(a) even though the defendant had initiated two previous appeals, including an appeal of his sentence, without raising the issue. Our Karchesky decision relied in part on Carter v. State, 561 So. 2d 1285 (Fla. 5th [*1315] DCA 1990). Carter was an appeal from the denial of a rule 3.800 motion to correct an illegal sentence. In Carter, we quashed a sentence which had been based on a scoresheet in which the trial court had erroneously added 80 points f…
Authorities Cited
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- Tarrence L. Smith v. State, 526 So. 2d 1060 (Fla. 1st DCA 1988)
- Baker v. State, 526 So. 2d 202 (Fla. 4th DCA 1988)
- Simmons v. State, 506 So. 2d 101 (Fla. 5th DCA 1987)
- Collier v. State, 535 So. 2d 316 (Fla. 1st DCA 1988)