ROGER LEE JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roger Lee Jones was convicted of four counts of lewd and lascivious acts upon a child under sixteen. The appellate court affirmed his convictions but reversed his sentences because the trial court improperly assessed victim injury points on the sentencing guidelines scoresheet and remanded for resentencing.
The convictions are affirmed. The sentences are reversed because victim injury points could not be assessed for these offenses under the applicable guidelines. The case is remanded for resentencing, leaving open the question of whether the extent of a departure based on unscored offenses is subject to appellate review.
[1] A constitutional challenge to section 800.04, Florida Statutes (1985), is valid.
[2] Victim injury points cannot be assessed for offenses under the guidelines applicable at the time of the criminal episode in the summer of 1986.
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Join FLexlaw to unlock all legal intelligence“It is now clear that no victim injury points could be assessed for these offenses under the guidelines applicable at that time.”
Establishes the core basis for reversal of the sentences—the trial court's error in assessing 140 points for victim injury on the guidelines scoresheet.
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Join FLexlaw to unlock all legal intelligenceJones was convicted of four counts of committing a lewd and lascivious act upon a child under age sixteen arising from a criminal episode in the summe…
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ALTENBERND, Judge.
Roger Lee Jones appeals his judgments and sentences entered upon guilty verdicts in each of four counts of committing a lewd and lascivious act upon a child under the age of sixteen. The four convictions arise out of a criminal episode in the summer of 1986, involving only one victim.
We affirm Jones’ four convictions without comment, except to express our agreement with the Fourth District’s analysis regarding Jones’ constitutional challenge to section 800.04, Florida Statutes (1985). See State v. Phillips, 575 So. 2d 1313 (Fla. 4th DCA), review denied, 589 So. 2d 292 (Fla.1991).
We reverse his sentences because the trial court incorrectly included 140 points for victim injury on the guidelines scoresheet.
The trial court assessed victim injury points for each offense. It is now clear that no victim injury points could be assessed for these offenses under the guidelines applicable at that time. Karchesky v. State, 591 So. 2d 930 (Fla.1992). The defendant also argues that his ten-year sentence was an improper departure sentence. He admits that he was convicted of offenses in another state after the commission of these crimes. Because those convictions are unscoreable, they support a departure. Merriex v. State, 521 So. 2d 249 (Fla. 1st DCA 1988).
Nevertheless, he argues that this court can review the extent of the departure because it is unclear whether this episode occurred before or after the amendment to section 921.001(5), Florida Statutes (1985), prohibiting appellate review of the extent of departure. Ch. 86-273, § 1, Laws of Fla.
Moreover, Jones contends that the departure resulted in a sentence which is longer than the sentence he would have received if the unscored crimes had been scored. Cf. Puffinberger v. State, 581 So. 2d 897 (Fla.1991) (unscored juvenile record can only support a departure that does not exceed the result if the juvenile record had been scored as adult crimes). Although the trial court may choose to depart on resentencing, it is possible that it will make different findings and decide upon a different sentence.
Accordingly, we do not decide whether the extent of a departure based upon such uns-cored offenses is subject to appellate review.
Affirmed in part, reversed in part, and remanded for resentencing.
LEHAN, Acting C.J., and FRANK, J., concur.
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Royce Glenn Harper v. State, 632 So. 2d 104 (Fla. 1st DCA 1994)…. 2d 503 (Fla.1993); Fowler v. State, 605 So .2d 598 (Fla. 5th DCA 1992); Hood v. State, 603 So. 2d 642 (Fla. 5th DCA 1992); Goodwin v. State, 600 So. 2d 1310 (Fla. 5th DCA 1992); Sanchez v. State, 600 So. 2d 1256 (Fla. 2d DCA 1992); Jones v. State, 597 So. 2d 425 (Fla. 2d DCA), review denied, 604 So. 2d 487 (Fla.1992); Jory v. State, 596 So. 2d 1126 (Fla. 5th DCA 1992); Morrison v. State, 596 So. 2d 535 (Fla. 5th DCA 1992). In so deciding, we recognize that this court apparently rejected a similar argument…
Authorities Cited
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Puffinberger v. State, 581 So. 2d 897 (Fla. 1991)
- State v. Phillips, 575 So. 2d 1313 (Fla. 4th DCA 1991)
- Merriex v. State, 521 So. 2d 249 (Fla. 1st DCA 1988)