MARCUS E. KARCHESKY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1990-10-04
No. 89-1970
COBB and GRIFFIN, JJ., concur.
568 So. 2d 80 Florida District Court of Appeal, Fifth District (1990) Positive Treatment
Cited by 8 cases

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Synopsis

The appellate court affirmed the trial court's denial of a motion to recalculate sentencing guideline points, holding that the issue of scoring victim injury points should have been raised on direct appeal and was not properly addressed via a Rule 3.800(a) motion.


Holding

The court affirmed the denial of Karchesky's motion, ruling that the issue of scoring victim injury points, which was not raised on direct appeal, could not be corrected through a Rule 3.800(a) motion.


Headnotes

[1] A trial court may correct an incorrect calculation made in a sentencing guidelines scoresheet at any time.

[2] A defendant cannot collaterally attack the reasons for departure from a sentence under Rule 3.800(a) after the sentence has been affirmed on direct appeal.

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Facts & Procedural History

Marcus Karchesky moved to recalculate his sentencing guideline scoresheet, seeking to eliminate points for victim injury related to his conviction for…

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Opinion of the Court
PETERSON, Judge.

PETERSON, Judge.

Marcus E. Karchesky invoked Rule 3.800(a), Florida Rules of Criminal Procedure, and requested that the trial court recalculate the points scored under his Category 2 sentencing guideline scoresheet. Karchesky requested the elimination of 120 points scored for victim injury upon his conviction of three counts of unlawful carnal intercourse with an unmarried person under the age of 18 years in violation of section 794.05, Florida Statutes (1985).

The trial court denied the request, indicating that the victim injury had been scored over the objection of Karchesky’s defense attorney and that the issue should have been raised in the appeal taken before the Rule 3.800(a) motion was filed. Although Karchesky had initiated two previous appeals before this court (including appeal of his sentence), he never raised the issue of whether victim injury can be scored under section 794.05. Karchesky v. State, 534 So. 2d 413 (Fla. 5th DCA 1988); Karchesky v. State, 509 So. 2d 403 (Fla. 5th DCA 1987).

We affirm.

Before the victim injury points can be considered, Karchesky must first overcome the hurdle of whether Rule 3.800(a) is the proper vehicle for correction of his sentence. In his second appeal, he specifically appealed his sentences but failed to raise the scoresheet issue. In Moses v. State., 538 So. 2d 473 (Fla. 5th DCA), rev. denied, 545 So. 2d 1368 (Fla.1989), this court ruled that, when a defendant’s sentence has been affirmed on direct appeal, the trial court's reasons for departure may not later be attacked collaterally under Rule 3.800(a).

Shortly after the Moses decision, this principle was reinforced in Dowling v. State, 545 So. 2d 521 (Fla. 5th DCA 1989).

Dowl-ing also categorized the rule as discretionary. Neither of the cases appears to involve issues of scoresheet computations.

The First District reversed a trial court’s summary denial of a post-conviction motion for relief based upon various scoring errors under the sentencing guidelines in Chaplin v. State, 473 So. 2d 842 (Fla. 1st DCA 1985), approved, 490 So. 2d 52 (Fla.1986). The defendant’s earlier direct appeal did not raise the issue of sentencing guideline errors. The error was first raised in a motion for post-conviction relief under Rule 3.850, Florida Rules of Criminal Procedure, which led to the trial judge’s denial on the grounds that a sentencing error under the guidelines should be raised on direct appeal. The supreme court approved the result reached by the district court, avoiding any discussion or reference to.

Rule 3.850. The court indicated that Rule 3.800(a) was dispositive of the issue before them of whether a computational error in a sentencing guideline scoresheet may be raised on a motion for post-conviction relief where the error was not raised on direct appeal. State v. Chaplin, 490 So. 2d 52 (Fla.1986).

The court noted that the language of Rule 3.800(a) specifically allows the trial court to correct at any time a computational error in a scoresheet and agreed with the district court’s conclusion that the respondent was entitled to have his scoresheet calculated properly.1

In the instant case, the trial court gave as its reason for not entertaining the Rule 3.800 motion Karchesky’s failure to raise the issue on his prior appeal. The failure to raise the issue on direct appeal does not seem to be an obstacle under Chaplin, but if the issue is raised on appeal, another later opportunity should not be available under Rule 3.800(a).

Although Karchesky prevails on his choice of Rule 3.800(a) for the purpose of bringing the alleged scoresheet error to the attention of the court, we do not find error in the award of 120 points for victim injury. The commission of the crime of unlawful intercourse with an unmarried person under the age of 18 years necessarily requires physical contact and penetration. The version of Rule 3.701(d)(7), Florida Rules of Criminal Procedure, in effect at the time of the commission of the offenses, required that “[vjictim injury shall be scored if it is an element of any offenses at conviction.” The committee notes to the amendment of Rule 3.701(d)(7) 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 either as primary or additional offense) which includes physical impact or contact” (emphasis added).

See The Florida Bar: Amendment to Rules of Criminal Procedure, 451 So. 2d 824 (Fla. 1984), as adopted by Laws 1984, Ch. 84-328, § 1. Part V of the Category 2 score-sheet specifies 20 points for contact but no penetration and 40 points for penetration or slight injury. Since Karchesky was found guilty of three counts of unlawful intercourse, 120 points were properly imposed.

We acknowledge that this decision directly conflicts with the Second District’s decision in Thompson v. State, 483 So. 2d 1 (Fla. 2d DCA 1985), and we, therefore, certify the following question to the supreme court:

WHETHER POINTS MAY BE ASSESSED FOR PENETRATION UNDER VICTIM INJURY IN CALCULATING THE SENTENCING GUIDELINES SCORESHEET FOR “CATEGORY 2: SEXUAL OFFENSES” FOR A CONVICTION OF THE OFFENSE OF CARNAL INTERCOURSE WITH AN UNMARRIED PERSON UNDER THE AGE OF 18 YEARS, SECTION 794.05, FLORIDA STATUTES.

AFFIRMED.

COBB and GRIFFIN, JJ., concur. . Rule 3.800(a) provides: "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.”


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Cited By

  • Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
    …OVERTON, Justice. We have for review Karchesky v. State, 568 So. 2d 80 (Fla. 5th DCA 1990), in which the Fifth District held that the commission of the crime of unlawful intercourse with an unmarried person under the age of eighteen years necessarily requires physical contact which allows, in every instance, victim-inj…
  • Silas v. Morris, 605 So. 2d 511 (Fla. 2d DCA 1992)
    …f force or injury. Nevertheless, Karchesky’s scoresheet included points for victim injury based on “penetration.” The Fifth District Court of Appeal, reviewing the denial of Karche-sky’s motion to correct sentence, considered the scoresheet correct. 568 So. 2d 80 (Fla. 5th DCA 1990). However, the supreme court held that “penetration which does not cause ascertainable physical injury ... does not result in victim injury as contemplated by the rule.” 591 So. 2d at 932. See also In re Florida Rules of Criminal…
  • Anderson v. State, 584 So. 2d 1127 (Fla. 4th DCA 1991)
    …ieve that as a general rule a prisoner may file a rule 3.800 motion for correction of sentence at any time and that the trial court must make such correction if it is justified. Cf. State v. Chaplin, 490 So. 2d 52 (Fla.1986); see Karchesky v. State, 568 So. 2d 80 (Fla. 5th DCA 1990). It is not necessary for purposes of the instant case to determine whether such a motion should be entertained when the prisoner has previously raised the same issue on direct appeal of judgment and sentence. We think also that…

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