MARK GORDON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mark Gordon appeals his convictions for sexual battery and his adult sentence of life imprisonment. The Fourth District affirmed his waiver to adult court and conviction but found error in the sentencing scoresheet, which improperly assessed victim injury points for each count rather than once per victim.
Only a single score for victim injury should be assessed regardless of the number of sexual batteries committed against one victim in a single criminal episode. The 1987 rule amendment's omission of committee note language instructing scorers to include victim injury points for each count makes the rule ambiguous and must be interpreted in favor of the appellant.
[1] A single score for victim injury should be assessed regardless of the number of offenses committed against a single victim within a criminal episode.
[2] Amendments to rules that omit prior committee note language, making the rule susceptible to multiple interpretations, must be interpreted in favor of the defendant.
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“only a single score for 'victim injury' should be assessed regardless of the number of sexual batteries a defendant commits upon a victim in a single criminal episode”
Establishes the core holding that victim injury points are not multiplied by the number of counts against one victim
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Join FLexlaw to unlock all legal intelligenceGordon was certified from juvenile court to be tried as an adult. He pled no contest to four counts of sexual battery against the same victim. The sta…
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GARRETT, Judge.
This is a consolidated appeal of appellant’s convictions and sentences. The juvenile court waived jurisdiction and certified the case to circuit court for appellant to be tried as an adult. He pled no contest to four counts of sexual battery upon the same victim. The state prepared a score-sheet that assessed 160 points (forty points for each count) for “penetration or slight injury” under the “victim injury” section. The circuit court judge used the scoresheet and sentenced appellant as an adult to life in prison, the recommended guidelines sentence.
We find no error as to appellant’s waiver to adult court or that he was sentenced as an adult. However, we do find error as to the number of points assessed for “victim injury.” Our sister court in Weekley v. State, 553 So. 2d 239 (Fla. 3d DCA 1989), held that only a single score for “victim injury” should be assessed regardless of the number of sexual batteries a defendant commits upon a victim in a single criminal episode. The Weekley court so held because the committee note to Rule 3.701(d)(7), Florida Rules of Criminal Procedure, no longer contains language instructing the preparer of a scoresheet to include “victim injury” points for each count upon a single victim. We agree.
In 1987 the rule was amended to read as follows:
Victim injury shall be scored for each victim physically injured during a criminal episode or transaction.
The amendment omitted1 the following language from the committee note:
Victim injury shall be scored for each count in which victim injury is an element of the offense, whether there are one or more victims.
We note that in response to Weekley the Sentencing Guidelines Commission (Commission) has petitioned the supreme court to amend the committee note to clarify the manner in which “victim injury” is to be scored. Florida Rules of Criminal Procedure re: Sentencing Guidelines, Supreme Court of Florida case no. 76,683. The petition is pending before the court. The Commission seeks to add the following language to the committee note:
This provision implements the intention of the commission that points for victim injury be added for each victim injured during a criminal episode or transaction and for each count whether there are. one or more victims.
The absence of the omitted committee note language makes the rule susceptible of more than one interpretation and must be interpreted in favor of appellant. Lambert v. State, 545 So. 2d 838 (Fla.1989).
Accordingly, we vacate appellant’s sentence and remand for resentencing with directions to the sentencing judge to use a scoresheet which only assesses one scoring (forty points) for “victim injury.” Upon remand with the corrected scoresheet, the sentencing judge may reconsider whether a departure from the guidelines is appropriate. Roberts v. State, 547 So. 2d 129 (Fla.1989); State v. Betancourt, 552 So. 2d 1107 (Fla.1985); and Weekley v. State, 553 So. 2d 239 (Fla. 3d DCA 1989).
AFFIRMED IN PART; REMANDED FOR RESENTENCING WITH DIRECTIONS.
HERSEY, C.J., and WARNER, J., concur. . The omitted language "was not scored over— the editorial means used to indicate deletion." Weekley v. State, 553 So. 2d 239, 240 (Fla. 3d DCA 1989).
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Citator
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Emory W. McGOWAN v. State, 586 So. 2d 1311 (Fla. 5th DCA 1991)…a single score for victim injury to one victim should be assessed for one episode even if the defendant inflicted more than one sexual battery upon that victim during the episode. Carter v. State, 573 So. 2d 426 (Fla. 5th DCA 1991); Gordon v. State, 575 So. 2d 736 (Fla. 4th DCA 1991); Weekley v. State, 553 So. 2d 239 (Fla. 3d DCA 1989). Thus McGowan’s scoresheet should have included only forty points for victim injury unless portions of the record not yet presented to this court show that two or more separate…
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Fretwell v. State, 586 So. 2d 483 (Fla. 5th DCA 1991)…DCA 1991); Carter v. State, 573 So. 2d 426 (Fla. 5th DCA 1991); Williams v. State, 565 So. 2d 838 (Fla. 1st DCA 1990); Weekley v. State, 553 So. 2d 239 (Fla. 3d DCA 1989). See also Brown v. State, 581 So. 2d 242 (Fla. 5th DCA 1991); Gordon v. State, 575 So. 2d 736 (Fla. 4th DCA 1991); Ramsey v. State, 573 So. 2d 1053 (Fla. 2d DCA 1991). Under this construction of the rule, the 40 point block for victim injury on the defendant’s guidelines scoresheet was properly multiplied by three, for each of the three cri…
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Daron Lavon Huston v. State (Fla. 4th DCA 2024)…m injury points. We agree and reverse and remand for resentencing. Huston’s offenses were committed in 1988. The law in effect at the time permitted addition of victim injury points only once per victim per criminal episode. See Gordon v. State, 575 So. 2d 736, 737 (Fla. 4th DCA 1991); Fretwell v. State, 586 So. 2d 483, 484 (Fla. 5th DCA 1991); see also Najar v. State, 614 So. 2d 644, 645 (Fla. 2d DCA 1993).1 Huston received victim injury points for three offenses and argues there were at most only two c…
Authorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)
- Doyal Powell Roberts v. State, 547 So. 2d 129 (Fla. 1989)
- Weekley v. State, 553 So. 2d 239 (Fla. 3d DCA 1989)