DONALD J. HARRELSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donald Harrelson appeals the denial of his motion to correct his sentence for two counts of sexual battery. The court affirms the denial of most claims but reverses and remands regarding the scoring of victim injury points on the sentencing guidelines scoresheet, requiring the trial court to determine whether actual physical injury occurred.
The court holds that only actual physical injury may be scored on a sentencing guidelines scoresheet, not merely penetration. The trial court erred in refusing to apply Karchesky to this case. On remand, if actual injury can be proven, the motion may be denied; if not, the scoresheet must be corrected and Harrelson must be resentenced.
[1] A defendant may challenge the scoring of "victim injury" on a sentencing scoresheet if the scoring was based on "penetration or slight injury" rather than actual physical…
[2] The Karchesky rule, which limits victim injury scoring to actual physical injury, may be raised in cases where a "fundamentally flawed" Category 2 scoresheet was employed…
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Join FLexlaw to unlock all legal intelligence“only actual physical injury may be scored, notwithstanding the language used in the model scoresheet form found at Florida Rule of Criminal Procedure 3.988(b)(V). The court further stated that 'penetration' and injury are not necessarily synonymous.”
Establishes the legal standard from Karchesky that penetration alone cannot satisfy the victim injury scoring requirement; actual physical injury must be proven.
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Join FLexlaw to unlock all legal intelligenceHarrelson was convicted of two counts of sexual battery and sentenced to a split sentence of 22 years prison followed by 15 years probation. The sente…
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PER CURIAM.
Donald Harrelson appeals the summary denial of his motion to correct sentence. We affirm in part and reverse in part.
Harrelson, convicted of two counts of sexual battery, is serving a split sentence of 22 years prison followed by 15 years probation. The incarcerative portion of the sentence is consistent with the guidelines recommendation. However, Harrelson complains of numerous sentencing errors. With one exception, all are without merit and we affirm the trial court’s order denying relief as to those claims. We remand for further proceedings regarding the one issue discussed below.
Harrelson disputes the scoring of “victim injury.” Fla.R.Crim.P. 3.701(d)(7). The scoresheet reflects the inclusion of 80 points, 40 for each count of sexual battery, corresponding to “penetration or slight injury.” In Karchesky v. State, 591 So. 2d 930 (Fla.1992), the supreme court declared that only actual physical injury may be scored, notwithstanding the language used in the model scoresheet form found at Florida Rule of Criminal Procedure 3.988(b)(V). The court further stated that “penetration” and injury are not necessarily synonymous. Harrelson alleges that no actual injury was inflicted in his case.
In response to this portion of the motion, the trial court determined that Karchesky should not be applied to cases which became final before the effective date of that decision. However, this court has concluded that the Karchesky issue may be raised in any case where the “fundamentally flawed” Category 2 scoresheet was employed. Morris v. State, 605 So. 2d 511, 513 (Fla. 2d DCA 1992). The trial court also noted that the legislature has effectively overruled the Karchesky decision. Ch. 92-135, § 1, Laws of Fla. While this is so, the amended statute cannot be applied in, this case. Morales v. State, 613 So. 2d 922 (Fla. 3d DCA 1993); Boland v. State, 613 So. 2d 72 (Fla. 4th DCA 1993) (Warner, J., concurring).
After remand the trial court may again deny the motion if, after review of the files and records or an evidentiary hearing, it is established that actual injury occurred in this case. Morris. If, on the other hand, no actual injury can be proved, the score-sheet must be corrected and Harrelson re-sentenced. We note that Harrelson’s sentence would lie within the “permitted range” even if all “victim injury” points were deleted. However, “[w]e 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.” 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. 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., concur.
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Citator
Cited By (23 total)
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Royce Glenn Harper v. State, 632 So. 2d 104 (Fla. 1st DCA 1994)…ate, 605 So. 2d 511 (Fla. 2d DCA 1992) (concluding that Karchesky error is readily ascertainable from the face of the record and correctable under 3.800(a)).2 Accord Kleshinski v. State, [*105] 620 So. 2d 1303 (Fla. 2d DCA 1993); Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA), review denied, 624 So. 2d 268 (Fla.1993); Roux v. State, 615 So. 2d 879 (Fla. 2d DCA), review denied, 624 So. 2d 268 (Fla.1993); Jones v. State, 615 So. 2d 705 (Fla. 2d DCA 1992); Lane v. State, 613 So. 2d 932 (Fla. 2d DCA 1993); Mora…
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Fulkroad v. State, 640 So. 2d 1160 (Fla. 2d DCA 1994)…njury.1 The amendment cannot be retrospectively applied. See Mitchell v. State, 635 So. 2d 1073 (Fla. 1st DCA 1994); Weckerle v. State, 626 So. 2d 1038 (Fla. 4th DCA 1993); Kleshinski v. State, 620 So. 2d 1303 (Fla. 2d DCA 1993); Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA), rev. den., 624 So. 2d 268 (Fla.1993); Reynolds v. State, 622 So. 2d 1139 (Fla. 5th DCA 1993); Morales v. State, 613 So. 2d 922 (Fla. 3d DCA), rev. den., 623 So. 2d 494 (Fla.1993). Thus, the victim injury rule applicable to Fulkroad is…
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Hallberg v. State, 621 So. 2d 693 (Fla. 2d DCA 1993)…heard it all and chose to believe S.S. . While Karchesky has been effectively overridden by legislative enactment (ch. 92-135, § 4, Laws of Fla.), that legislation cannot be applied to crimes committed before its effective date. Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA 1993).…
Previewing 3 of 23 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)
- Carter v. State, 586 So. 2d 340 (Fla. 1991)
- Silas v. Morris, 605 So. 2d 511 (Fla. 2d DCA 1992)
- Louie Anthony Sellers v. State, 578 So. 2d 339 (Fla. 1st DCA 1991)
- Fernandez v. Efigenia Nancy Fernandez, 578 So. 2d 339 (Fla. 3d DCA 1991)
- Boland v. State, 613 So. 2d 72 (Fla. 4th DCA 1993)
- Morales v. State, 613 So. 2d 922 (Fla. 3d DCA 1993)
- Najar v. State, 614 So. 2d 644 (Fla. 2d DCA 1993)
- Sanchez v. State, 600 So. 2d 1256 (Fla. 2d DCA 1992)