ROBERTA SANCHEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that victim injury points should not have been assessed for penetration without physical injury, and an alcohol-related probation condition was not reasonably related to the offenses.
[1] Victim injury points may not be assessed under Florida Rule of Criminal Procedure 3.701(d)(7) for penetration that does not cause ascertainable physical injury.
[2] A trial court may depart from sentencing guidelines upon resentencing if valid written reasons are provided, even if the original sentencing occurred before controlling p…
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Join FLexlaw to unlock all legal intelligenceRoberta Sanchez pled no contest to lewd acts upon a child and sexual battery of a child. She was sentenced with victim injury points for penetration, …
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RYDER, Judge.
We have for review two sentencing issues raised by Roberta Sanchez who pled no contest to one count of committing a lewd, lascivious or indecent act upon a child under the age of sixteen, and one count of sexual battery of a child under the age of sixteen.
Sanchez was sentenced to four and one-half years in Florida State Prison on each count to be served concurrently, followed by ten years’ probation. The trial court scored forty victim injury points for penetration. Sanchez’ written probation order contains a condition prohibiting her from using alcohol and bars her from places where alcohol is sold.
Sanchez contends that her guidelines score should not include points for victim injury because the male victim was never penetrated in this case. The male victim also received no physical injuries as a result of the sexual battery. “[P]en-etration which does not cause ascertainable physical injury, does not result in victim injury as contemplated by [Florida Rule of Criminal Procedure 3.701(d)(7)] for which victim-injury points may be assessed.” Karchesky v. State, 591 So. 2d 930 (Fla.1992). See also Thompson v. State, 483 So. 2d 1 (Fla.2d DCA 1985).
The state acknowledges the authority of Karchesky and concedes that the ássessment of victim injury points in this case is not valid. However, because the trial court did not have the benefit of Karchesky during Sanchez’ sentencing, the trial court shall have the opportunity to depart from the guidelines upon resentencing, if valid written reasons are given.
The condition of probation relating to alcohol should be stricken because it is not reasonably related to the crimes for which Sanchez was convicted. See Daniels v. State, 583 So. 2d 423 (Fla.2d DCA 1991); Rodriguez v. State, 378 So. 2d 7 (Fla.2d DCA 1979).
Appellant’s convictions are affirmed, but the sentence is reversed and the case is remanded for resentencing and for further proceedings consistent with this opinion.
Affirmed in part, reversed in part and remanded.
SCHOONOVER, C.J., and LEHAN, J., concur.
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Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA 1993)…2d DCA 1993). See also, Boland; Sellers v. State, 578 So. 2d 339 (Fla. 1st DCA), approved on other grounds, 586 So. 2d 340 (Fla.1991). Our holding is without prejudice to the trial court to make and substantiate such a finding. Cf. Sanchez v. State, 600 So. 2d 1256 (Fla. 2d DCA1992) (trial court may impose departure sentence after correction of Karchesky error, if supported by written findings). Affirmed in part, reversed in part, and remanded with instructions. DANAHY, A.C.J., and CAMPBELL and BLUE, JJ., co…
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Royce Glenn Harper v. State, 632 So. 2d 104 (Fla. 1st DCA 1994)…So. 2d 959 (Fla. 2d DCA 1992), review denied, 614 So. 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…
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Lane v. State, 613 So. 2d 932 (Fla. 2d DCA 1993)…for victim injury, which may be violative of Karchesky v. State, 591 So. 2d 930 (Fla.1992). Because the trial court did not have the benefit of Karchesky, it may impose a departure sentence on remand if supported by valid reasons. Sanchez v. State, 600 So. 2d 1256 (Fla. 2d DCA 1992). Other than the discussion of multiple probation violations at sentencing, the record before us does not support a finding of the “multiple probation violations” referred to in Williams v. State, 594 So. 2d 273 (Fla.1992). See Wil…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979)
- Thompson v. State, 483 So. 2d 1 (Fla. 2d DCA 1985)
- Daniels v. State, 583 So. 2d 423 (Fla. 2d DCA 1991)