JOSEPH ISSAC BRABANT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the Karchesky issue may be raised in cases with a fundamentally flawed Category 2 scoresheet, and the legislative amendment clarifying victim injury scoring cannot be applied retroactively.
Joseph Brabant, convicted of sexual battery and incest, appealed the denial of his motion to correct sentence, arguing his scoresheet improperly inclu…
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HALL, Judge.
Joseph Brabant appeals the summary denial of his motion to correct sentence. We reverse and remand for further proceedings.
Brabant was convicted of three counts of sexual battery and three counts of incest in 1986. He was sentenced to 27 years’ imprisonment pursuant to a scoresheet which included 240 points for victim injury (40 points for each offense). He now alleges error in the scoring of points for victim injury based on Karchesky v. State, 591 So. 2d 930 (Fla.1992). In that case the supreme court held that only ascertainable physical injury may be scored, and penetration is not necessarily synonymous with injury. Brabant contends that he inflicted no ascertainable physical injury on the victim.
The trial court denied Brabant’s motion to correct sentence based on the legislature’s clarification of its intent regarding the scoring of victim injury points on category 2 scoresheets. Ch. 92-135, § 1, Laws of Fla. The legislature amended section 921.001(8), Florida Statutes (1992), to reflect its intention that penetration must be scored regardless of whether it involved any physical injury. This amendment may not be applied retroactively. Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA 1993).
The trial court also stated that it would not retroactively apply the Karchesky ruling. This court has held that “the Karche-sky issue may be raised in any case where the ‘fundamentally flawed’ Category 2 scoresheet was employed.” Harrelson.
Accordingly, we must remand this case for further proceedings consistent with Harrelson to determine whether physical injury was inflicted in this case.
Reversed and remanded.
THREADGILL and BLUE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mitchell v. State, 635 So. 2d 1073 (Fla. 1st DCA 1994)…ial court’s ruling that victim injury points were properly assessed based solely on penetration. The state should have the opportunity to present such evidence at resentencing. See Jones v. State, 615 So. 2d 705 (Fla. 2d DCA 1992); Brabant v. State, 616 So. 2d 1151 (Fla. 2d DCA 1993); Reynolds v. State, 622 So. 2d 1139 (Fla. 5th DCA 1993). We reverse and remand for resentencing, at which time the state may adduce evidence of actual physical injury. KAHN, J., concurs. BOOTH, J., dissents.…
Authorities Cited
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA 1993)