EDWARD KLESHINSKI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1993-07-09
No. 92-00259
FRANK, C.J., and THREADGILL, J., concur.
620 So. 2d 1303 Florida District Court of Appeal, Second District (1993) Positive Treatment
Cited by 8 cases

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Holding

The court held that a conviction must be reversed if there is insufficient evidence, and sentences must be corrected if the guidelines scoresheet contains errors.

Facts & Procedural History

Edward Kleshinski appealed his convictions and sentences. One conviction was for sexual activity with a child, but the victim testified the crime did …

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Topics
Victim Injury Points Sentencing Guidelines Scoresheet Retroactive Application Of Statutes Sufficiency Of Evidence

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Opinion of the Court
BLUE, Judge.

BLUE, Judge.

Edward Kleshinski appeals his seven convictions and the resulting sentences. We affirm all but one of Kleshinski’s convictions which we reverse because there was insufficient evidence. We also reverse the sentences imposed and remand for resentencing due to guidelines scoresheet errors.

We reverse Kleshinski’s conviction for sexual activity with a child by a person in familial authority as charged in count thirteen of the information because there was no testimony presented at trial to support a conviction on this charge. The victim specifically testified that the crime did not occur and the state presented no other evidence to support this conviction. See L.E.W. v. State, 616 So. 2d 613 (Fla. 5th DCA 1993).

Regarding his sentence, Kleshin-ski correctly contends that the guidelines scoresheet erroneously contains points for “victim injury” because no actual injury was inflicted in the offenses for which he was convicted. Subsequent to his sentencing, the Florida Supreme Court held 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). Karchesky v. State, 591 So. 2d 930 (Fla.1992). This court has held that the Karchesky issue may be raised in any case, as in this case, where the “fundamentally flawed” Category 2 scoresheet was used. Morris v. State, 605 So. 2d 511 (Fla. 2d DCA 1992). The legislature’s amendments to section 921.001, Florida Statutes (Supp. 1992), which effectively overrule Karche-sky, do not have retroactive application and so do not apply in this case. Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA 1993); Morales v. State, 613 So. 2d 922 (Fla. 3d DCA 1993); Boland v. State, 613 So. 2d 72 (Fla. 4th DCA 1993).

Accordingly, we reverse Kleshinski’s conviction on count thirteen and affirm all his other convictions. We reverse and remand for resentencing using a correct score-sheet.

FRANK, C.J., and THREADGILL, J., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Royce Glenn Harper v. State, 632 So. 2d 104 (Fla. 1st DCA 1994)
    …, review denied, 626 So. 2d 208 (Fla.1993); Morris v. State, 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);…
    1 / 2
  • Fulkroad v. State, 640 So. 2d 1160 (Fla. 2d DCA 1994)
    …t penetration be scored regardless of physical [*1161] injury.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).…
  • Mitchell v. State, 635 So. 2d 1073 (Fla. 1st DCA 1994)
    …hould not have been assessed against Mitchell based on penetration alone. [*1075] Numerous courts have held that the subject amendment should not be applied retroactively. See Morales v. State, 618 So. 2d 922 (Fla. 3d DCA 1993); Kleshinski v. State, 620 So. 2d 1303 (Fla. 2d DCA 1993); Reynolds v. State, 622 So. 2d 1139 (Fla. 5th DCA 1993); Weckerle v. State, 626 So. 2d 1038 (Fla. 4th DCA 1993). We agree and find that, under the circumstances of this case, victim injury points were incorrectly scored at Mitchel…

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