DAVID LEROY STERMER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in scoring victim injury points for each count of the offenses.
Appellant was convicted of sexual battery, attempted sexual battery, and kidnapping. On remand for resentencing, the trial court scored victim injury …
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PER CURIAM.
Appellant, David Leroy Sterner, challenges his sentences for sexual battery, attempted sexual battery, and kidnapping. We find the trial court erred in sentencing appellant and, accordingly, remand for re-sentencing.
A jury found appellant guilty of two counts of sexual battery in violation of section 794.011, Florida Statutes (1987), one count of attempted sexual battery in violation of sections 794.011 and 777.04, Florida Statutes (1987), and one count of kidnapping in violation of section 787.01, Florida Statutes (1987). All charges involved the same victim. The trial court sentenced appellant to to life in prison. This court in Stermer v. State, 541 So. 2d 1230 (Fla. 2d DCA 1989), affirmed the convictions but vacated the life sentence and remanded for resentencing within the guidelines.
On remand, the appellant was sentenced to twenty-seven years. This was a presumptive guidelines sentence based on a scoresheet which included points for victim injury for each count. We agree with the appellant that the trial court erred in scoring points for victim injury for each count.
Florida Rule of Criminal Procedure 3.701(d)(7) was amended in 1987. The 1987 amendment deleted language from the committee note which permitted victim injury to be scored for each count. See Florida Rules of Criminal Procedure, 509 So. 2d 1088 (Fla.1987). Victim injury may be scored only once according to its cumulative severity. Weekley v. State, 553 So. 2d 239 (Fla. 3d DCA 1989).
We, accordingly, reverse and remand for resentencing. Upon remand, the trial court should sentence appellant with a properly prepared scoresheet that scores victim injury just once.
Reversed and remanded.
SCHOONOVER, C.J., and DANAHY and FRANK, JJ., concur.
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Hines v. State, 587 So. 2d 620 (Fla. 2d DCA 1991)…sentences. The scoresheet, however, improperly assessed victim injury for six separate convictions for sexual battery. Victim injury may not be scored for each count but can be scored only once according to its cumulative severity. Stermer v. State, 567 So. 2d 13 (Fla. 2d DCA 1990). Even so, we find beyond a reasonable doubt that the trial judge would have imposed the same departure sentence notwithstanding the scoresheet error. Brown v. State, 508 So. 2d 522 (Fla. 2d DCA 1987). We affirm appellant’s convi…
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Taylor v. State, 586 So. 2d 504 (Fla. 2d DCA 1991)…PER CURIAM. Because the trial court erred in scoring victim injury points for each of the four counts of sexual battery arising from the same criminal episode against one victim, see Fla.R.Crim.P. 3.701(d)(7); Stermer v. State, 567 So. 2d 13 (Fla. 2d DCA 1990), we reverse appellant s sentences and remand for resentencing. DANAHY, Acting C.J., and FRANK and PARKER, JJ., concur.…
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Ramsey v. State, 573 So. 2d 1053 (Fla. 2d DCA 1991)…et is governed by Florida Rule of Criminal Procedure 3.701(d)(7) which provides that “victim injury shall be scored for each victim physically injured during a criminal episode or transaction.” Applying the rule, this court held in Stermer v. State, 567 So. 2d 13 (Fla. 2d DCA 1990), that it is error to score points for victim injury for each count. Rather, this court said that victim injury may be scored only once according to its cumulative severity. Unlike Stermer, the offenses in this case occurred on tw…
Authorities Cited
- FLA. RULES OF CRIM. PROCEDURE RE SENTENCING GUIDELINES (RULES 3.701 & 3.988), 509 So. 2d 1088 (Fla. 1987)
- Weekley v. State, 553 So. 2d 239 (Fla. 3d DCA 1989)
- Stermer v. State, 541 So. 2d 1230 (Fla. 2d DCA 1989)