DAVID WECKERLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a sentence must be reversed and remanded for resentencing because points for victim injury were improperly scored based on subsequent case law, and the lack of an objection at sentencing does not bar post-judgment relief.
Appellant was sentenced in 1988 for lewd and lascivious acts against a child. The sentencing scoresheet included points for victim injury. Subsequent …
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PER CURIAM.
We reverse Appellant’s 1988 sentence for multiple counts of lewd and lascivious acts against a child and remand for resentencing. Boland v. State, 613 So. 2d 72 (Fla. 4th DCA), rev. denied, 624 So. 2d 268 (Fla.1993); Arreola v. State, 620 So. 2d 1289 (Fla. 4th DCA 1993).
The sentencing seoresheet included points for victim injury. The supreme court subsequently decided Karchesky v. State, 591 So. 2d 930 (Fla.1992), holding that points for victim injury could not validly be scored for a touching alone.
Although no objection was raised at sentencing, under these circumstances that fact is not a bar to Appellant’s seeking post-judgment relief. Singleton v. State, 620 So. 2d 1038 (Fla. 2d DCA 1993). We note that the subsequent amendment of section 921.001, Florida Statutes, to permit victim injury scoring for contact without trauma in a sex offense may not be applied retroactively. See Boland v. State; Singleton v. State. Upon resentencing, the trial court is not precluded from departing from the guidelines if grounds exist.
HERSEY, STONE and PARIENTE, JJ., concur.
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Fulkroad v. State, 640 So. 2d 1160 (Fla. 2d DCA 1994)…91), effective April 8, 1992, to reflect its intention that 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. 2…
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Echols v. State, 660 So. 2d 782 (Fla. 4th DCA 1995)…ngs consistent herewith. AFFIRMED IN PART; REVERSED IN PART and REMANDED. STONE and STEVENSON, JJ., concur. . We disagree with the state's argument that appellant did not preserve this sentencing error for appellate review. See Weckerle v. State, 626 So. 2d 1038, 1039 (Fla. 4th DCA 1993). . Superseded by rule Fenelon v. State, 629 So. 2d 955 (Fla. 4th DCA 1993), and superseded by statute Griffith v. State, 654 So. 2d 936 (Fla. 4th DCA 1995). . The state mistakenly argues that lack of preservation requires…
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Mitchell v. State, 635 So. 2d 1073 (Fla. 1st DCA 1994)…t 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 Mitchell’s September 1992 resentencing. We reverse and remand for resentencing. The state argues that, in the event o…
Previewing 3 of 6 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)
- Boland v. State, 613 So. 2d 72 (Fla. 4th DCA 1993)
- Singleton v. State, 620 So. 2d 1038 (Fla. 2d DCA 1993)
- Gregorio Arreola v. State, 620 So. 2d 1289 (Fla. 4th DCA 1993)