EDWARD ALLEN SINGLETON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edward Singleton appealed his sentencing for sexual battery and lewd acts on children, challenging the trial court's assignment of victim injury points under Florida's sentencing guidelines. The court reversed and remanded for resentencing because the victims did not suffer actual physical trauma sufficient to support the victim injury points added to the sentencing scoresheet.
Victim injury points should not have been added because the record did not show actual physical trauma. The error was not harmless because the original sentence was at the low end of the permitted range. The court may, however, depart from the guidelines on remand if it finds psychological trauma to the victims.
[1] Victim injury points in sentencing guidelines may not be scored based on actual physical trauma if none occurred.
[2] Psychological trauma suffered by victims may serve as a ground for departure from sentencing guidelines.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The record does not reflect that the victims suffered actual physical trauma and, therefore, according to Karchesky v. State, 591 So.2d 930 (Fla.1992), the victim injury points should not have been added.”
Establishes the core basis for reversal—victim injury points require actual physical trauma
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Join FLexlaw to unlock all legal intelligenceSingleton was convicted of two counts of sexual battery and four counts of lewd and lascivious acts on children under 16 years. The trial court impose…
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FRANK, Judge.
Edward Allen Singleton has appealed from the sentence imposed upon him following convictions for two counts of sexual battery and four counts of lewd and lascivious acts on children under 16 years. The basis for his appeal is improper scoring of victim injury points. The record does not reflect that the victims suffered actual physical trauma and, therefore, according to Karchesky v. State, 591 So. 2d 930 (Fla.1992), the victim injury points should not have been added. There may be support, however, for a conclusion that the molested boys suffered psychological trauma. Should the judge on remand make such a finding, he may use it as a ground for departure from the guidelines. See Karchesky.
There are also two points related to the scoring of victim injury that require comment. First, relying upon Perryman v. State, 608 So. 2d 528 (Fla. 1st DCA 1992), the state advances the contention that Singleton’s attack upon the trial court’s assessment of victim injury points is barred for lack of contemporaneous objection. We have rejected that view in Morris v. State, 605 So. 2d 511 (Fla. 2d DCA 1992); see also Linkous v. State, 618 So. 2d 294 18 Fla.L.Weekly D1074 (Fla. 2d DCA 1993) (noted conflict with Perryman). Second, the state argues that the amendment to section 921.001, Florida Statutes (Supp. 1992),1 mandates affirmance because it went into effect on April 8, 1992 — the date of Singleton’s sentencing. One court has held that the amendment is to be applied prospectively, Morales v. State, 613 So. 2d 922 (Fla. 3d DCA 1993), and we also subscribe to the view that the applicable rule is the one which existed at the time of the offense, not sentencing.
The reduction of Singleton’s sentencing score by the number of victim injury points would result in a recommended range one cell lower. The permitted range would also be similarly lower — 9 to 22 years rather than the 12 to 27 years upon which the court relied in imposing concurrent prison terms of 15 years on all counts, followed by 10 years of probation on the sexual battery counts. Even though Singleton's sentence is within the new permitted range, the scoresheet error in this case cannot be harmless because the court originally sentenced him to a term at the low end of the permitted range. See Boland v. State, 613 So. 2d 72 (Fla. 4th DCA 1993). Because the court did not have the benefit of Karchesky at sentencing, however, it may impose a departure sentence on remand if supported by appropriate reasons. Id.
Reversed and remanded for resentencing.
RYDER, A.C.J., and BLUE, J., concur. . Section 921.001(8), Florida Statuts (Supp. 1992), provides as follows:
For purposes of the statewide sentencing guidelines, if the conviction is for an offense described in chapter 794, chapter 800, or s. 826.04 and such offense includes sexual penetration, the sexual penetration must receive the score indicated for penetration or slight injury, regardless of whether there is evidence of any physical injury. If the conviction is for an offense described in chapter 794, chapter 800, or s. 826.04 and such offense does not include sexual penetration, the sexual contact must receive the score indicated for contact but no penetration, regardless of whether there is evidence of any physical injury. If the victim of an offense described in chapter 794, chapter 800, or s. 826.04 suffers any physical injury as a direct result of the primary offense or any other offense committed by the offender resulting in conviction, such physical injury must be scored separately and in addition to the points scored for the sexual contact or the sexual penetration.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Montague, 682 So. 2d 1085 (Fla. 1996)…that defense counsel did not object to the inclusion of the victim injury points. Instead, he announced to the trial court that he assumed the scoresheet had been calculated correctly.3 On appeal, the Second District, relying on Singleton v. State, 620 So. 2d 1038 (Fla. 2d DCA 1993), found that Montague’s failure to raise a contemporaneous objection did not preclude the court’s independent review of the alleged Karchesky error. Montague, 666 So. 2d at 509. The district court maintained this position even thou…
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Sprankle v. State, 662 So. 2d 736 (Fla. 2d DCA 1995)…places the defendant in a different cell, the error cannot be presumed to be harmless, unless the record conclusively demonstrates that the trial court would have given the same sentence had it known the correct score. See, e.g., Singleton v. State, 620 So. 2d 1038 (Fla.2d DCA 1993); Burrows v. State, 649 So. 2d 902, 904 (Fla. 1st DCA 1995); Deparvine v. State, 603 So. 2d 679 (Fla. 1st DCA 1992). The trial court must resentence SpranHe using a corrected scoresheet; see Sellers v. State, 578 So. 2d 339, 341 (…
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Major Thornton v. State, 683 So. 2d 515 (Fla. 2d DCA 1996)…cannot be presumed to be harmless unless the record conclusively demonstrates that the trial court would have given the same sentence had it known the correct score. Burrows v. State, 649 So. 2d 902, 904 (Fla. 1st DCA 1995); See Singleton v. State, 620 So. 2d 1038 (Fla. 2d DCA 1993); Deparvine v. State, 603 So. 2d 679 (Fla. 1st DCA 1992). Additionally, Thornton points out that the scoresheet includes ninety-eight points for a prior conviction for first degree homicide. This conviction should not have been sc…
Previewing 3 of 8 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)
- Silas v. Morris, 605 So. 2d 511 (Fla. 2d DCA 1992)
- Boland v. State, 613 So. 2d 72 (Fla. 4th DCA 1993)
- Perryman v. State, 608 So. 2d 528 (Fla. 1st DCA 1992)
- Morales v. State, 613 So. 2d 922 (Fla. 3d DCA 1993)
- State v. Green, 618 So. 2d 294 (Fla. 4th DCA 1993)