ROBERT G. NAJAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Najar appealed his concurrent life sentences for two sexual batteries committed against a single victim, arguing that the trial court erroneous doubled the victim injury points in the sentencing guidelines scoresheet. The Second District Court of Appeal agreed that victim injury points should be assessed only once for multiple sexual batteries committed in a single criminal episode, vacated the sentences, and remanded for resentencing.
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 occurrence. The erroneous doubling of victim injury points must be corrected, and the case must be remanded for resentencing with a properly calculated scoresheet.
[1] Victim injury points should be assessed but once, regardless of the number of sexual batteries committed by a defendant upon a single victim in a single criminal occurren…
[2] An erroneous assessment of victim injury points on a sentencing scoresheet can affect the legality of the imposed sentence.
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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 occurrence.”
Establishes the core holding regarding victim injury point assessment in sentencing guidelines
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Join FLexlaw to unlock all legal intelligenceNajar was convicted of two sexual batteries committed against a single victim in a single criminal episode on April 23, 1991, during which severe phys…
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FRANK, Acting Chief Judge.
Robert Najar appeals from concurrent verse. life sentences imposed after his convictions for two sexual offenses upon a single victim. Najar urges that an erroneous assessment of victim injury points requires us to reverse his sentences. We agree and re-
The scoresheet upon which the trial court relied at sentencing indicates that the points assessed for victim injury were multiplied by two, apparently to reflect each sexual battery committed by Na-jar, but the evidence reveals one criminal episode involving severe physical injuries inflicted upon a single victim. Najar relies on Florida Rule of Criminal Procedure 3.701(d)(7) for the proposition that even though he inflicted two sexual batteries upon the victim in the course of the criminal event, victim injury points should have been assessed but once. We agree. 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 occurrence.1 Madrey v. State, 594 So. 2d 841 (Fla. 5th DCA1992).
The error affected Najar’s sentence. The deletion of the erroneous points reduces his scoresheet total by 85 points, placing him in a recommended range of 27 to 40 years and in a permitted range of 22 years to life. Because life terms were imposed at sentencing, the state urges harmless error. Under the miscalculated score-sheet, however, life was the recommended sanction. We find no conclusive declaration in the record, as indeed we must to deem the error harmless, indicating the trial court would have extended the sentence into the farthest reach of the permitted range had it considered an accurate scoresheet.
Accordingly, the sentences are vacated and the cause remanded for resentencing upon a properly calculated guidelines score-sheet.
PATTERSON and ALTENBERND, JJ., concur. . We have not overlooked the amendment to rule 3.701(d)(7), adopted by the supreme court and approved by the legislature effective May 30, 1991, which permits scoring of victim injury for each count or offense at conviction resulting in such injury. See 1991 Fla.Laws, Ch. 270, § 2; Florida Rules of Criminal Procedure Re: Sentencing Guidelines (Rules 3.701 and 3.988), 576 So. 2d 1307 (Fla.1991). However, Najar committed these offenses on April 23, 1991, prior to the effective date of the revision. Because substantive changes in the law are to be prospectively applied, the amendment has no application to the matter before us. See Jones v. State, 615 So. 2d 705 (Fla. 2d DCA 1992); Fretwell v. State, 586 So. 2d 483 (Fla. 5th DCA 1991) (declining to apply the revision to rule 3.701 retroactively). We take the supreme court’s language in State v. Johnson, 616 So. 2d 1 (Fla.1993), that resentencing was to occur "in accordance with the valid laws in effect at the time of Johnson’s sentencing” to mean that a valid sentencing law was in effect measured by the moment when the crime was committed.
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Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA 1993)…conclusive declaration in the record, as indeed we must to deem the error harmless, indicating the trial court would have extended the sentence into the farthest reach of the permitted range had it considered an accurate scoresheet.” Najar v. State, 614 So. 2d 644 (Fla. 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.…
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Wilson v. State, 648 So. 2d 1219 (Fla. 2d DCA 1995)…es or that any error is harmless. See Daum v. State, 544 So. 2d 1035 (Fla. 2d DCA) (holding that the issue of victim injury points presents a question of law which may be raised at any time), review denied, 551 So. 2d 462 (Fla.1989); Najar v. State, 614 So. 2d 644, 645 (Fla. 2d DCA 1993) (holding that scoresheet errors are not harmless even though a sentence falls within the corrected cell when an appellate court is unable to determine that the trial court “would have extended the sentence into the farthest r…
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Lowe v. State, 742 So. 2d 350 (Fla. 5th DCA 1999)…ransaction, even if more than one injury was inflicted on one victim during the episode. See Kio v. State, 624 So. 2d 744 (Fla. 1st DCA 1993), rev. denied, 634 So. 2d 627 (Fla.1994); Jones v. State, 615 So. 2d 705 (Fla. 2d DCA 1992); Najar v. State, 614 So. 2d 644 (Fla. 2d DCA 1993); McGowan v. State, 586 So. 2d 1311 (Fla. 5th DCA 1991); Fretwell v. State, 586 So. 2d 483 (Fla. 5th DCA 1991); Carter v. State, 573 So. 2d 426 (Fla. 5th DCA 1991). In Fretioell, Judge Cowart noted that in 1991, the Guidelines Com…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Johnson, 616 So. 2d 1 (Fla. 1993)
- FLA. RULES OF CRIM. PROCEDURE RE: SENTENCING GUIDELINES (RULES 3.701 & 3.988), 576 So. 2d 1307 (Fla. 1991)
- City OF Coral Gables v. NEW Times Newspapers OF Fla., Inc., 615 So. 2d 705 (Fla. 3d DCA 1992)
- Jones v. State, 615 So. 2d 705 (Fla. 2d DCA 1992)
- Fretwell v. State, 586 So. 2d 483 (Fla. 5th DCA 1991)
- Madrey v. State, 594 So. 2d 841 (Fla. 5th DCA 1992)