EMILUS FENELON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1993-12-15
No. 92-1001
DELL, C.J., and GUNTHER, J., concur.
629 So. 2d 955 Florida District Court of Appeal, Fourth District (1993) Positive Treatment
Cited by 6 cases

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Synopsis

Emilus Fenelon appealed his convictions for sexual activity with a child and capital sexual battery, challenging the admission of a tape-recorded victim statement, additional sentencing points for victim injury based on pregnancy and childbirth, and prosecution costs. The Fourth District Court of Appeal affirmed the convictions and victim injury points but reversed the prosecution costs award due to insufficient evidence of expenses.


Holding

The court affirmed the convictions and the assessment of additional sentencing points for victim injury based on pregnancy and childbirth, finding that the 1987 amendment to the sentencing guidelines authorized points for physical trauma even when not an element of the crime. However, the court reversed the prosecution costs award because the state failed to introduce evidence documenting its expenses.


Headnotes

[1] Pregnancy and childbirth resulting from a sexual battery constitute physical injury for the purpose of scoring victim injury points under sentencing guidelines.

[2] Sentencing guidelines amendments in July 1987 authorized additional points for physical trauma in sexual battery cases, even where the injury is not an element of the cri…

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Key Quotes

“The injury need not be an element of the crime for which the defendant is convicted, but is limited to physical trauma.”

This quote from the 1987 sentencing guidelines amendment explanation establishes that additional points for victim injury apply to any physical trauma, not just injuries that are elements of the crime.

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Facts & Procedural History

Defendant was charged with sexual activity with a child by a person in familial authority and capital sexual battery. He was convicted of the sexual a…

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Opinion of the Court
FARMER, Judge.

FARMER, Judge.

Defendant was charged with one count of sexual activity with a child by a person in familial authority1 and one count of capital sexual battery.2 He was convicted of the sexual activity count as charged and of the lesser included offense of attempted sexual battery on a child less than 12 years of age by a person over the age of 12. On appeal he argues error in the admission of a tape recorded statement by the victim, in the assessment of additional points for victim injury, and in the assessment of the costs of prosecution. We affirm his convictions without further comment, finding no error in the admission of the tape recording. As to the additional points on his guidelines scoresheet, defendant argues that the victim’s resulting pregnancy and childbirth is not the kind of physical trauma that authorizes additional points where the victim of a sexual crime has suffered an injury. In Karchesky v. State, 591 So. 2d 930 (Fla.1992), where the defendant had been convicted in 1986 only of carnal intercourse with an unmarried person under 18,3 the court held that the 1986 version of the sentencing guidelines 4 did not authorize additional points for victim injury for the crime that was the subject of the conviction where “penetration does not cause ascertainable physical injury.” In so doing, the court cited with approval Thompson v. State, 483 So. 2d 1 (Fla. 2d DCA 1985), where the crime was the same as in Karchesky, i.e., carnal intercourse of an unmarried child under 18.5 As the court pointed out in Karchesky, 591 So. 2d at 932, the guidelines were changed in July 1987 to authorize points for physical trauma, even where the injury is not an element of the crime.6 Thus the very basis for the decisions in both Karchesky and Thompson was abrogated by the 1987 guidelines amendment.

We have trouble taking seriously defendant’s contention that pregnancy and childbirth do not equate with physical injury. The 1987 amendment included the following explanation: “The injury need not be an element of the crime for which the defendant is convicted, but is limited to physical trauma.” [e.s.] We have no trouble in recognizing what the drafters of the rule change undoubtedly knew — that pregnancy and childbirth resulting from a sexual battery constitute physical injury. There was no error in the additional points for the physical trauma experienced by this victim.

We do, however, reverse the award of prosecution costs because the state simply failed to adduce any evidence to document its expenses. In all other respects the convictions and sentences are affirmed.

CONVICTION AND SENTENCES AFFIRMED; COSTS OF PROSECUTION REVERSED.

DELL, C.J., and GUNTHER, J., concur. . See § 794.041(2)(b), Fla.Stat. (1991).

. See § 794.011(2), Fla.Stat. (1991).

. See Karchesky v. State, 509 So. 2d 403 (Fla. 5th DCA 1987).

. See Fla.R.Crim.P. 3.701(d)(7) (1986) (“Victim injury shall be scored if it is an element of any offenses at conviction.”).

. Although the Thompson court mentions that the victim became pregnant and delivered a child in its account of the background facts, it never discussed whether that pregnancy/childbirth constitutes physical injury within the meaning of the pre-1987 version of rule 3.701(d)(7). That omission is unsurprising because that injury too does not constitute an element of the offense of carnal intercourse with a child under 18. Hence, we do not read Thompson as expressing any decision on the precise issue presented in the case we review today.

.See Fla.R.Crim.P. 3.701(d)(7) (1987) ("Victim injury shall be scored for each victim physically injured during a criminal episode or transaction.”) The current version of the same rule shows further amendment: "Victim injury shall be scored for each victim physically injured during a criminal episode or transaction, and for each count resulting in such injury whether there are one or more victims.”


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Citator

Cited By

  • Echols v. State, 660 So. 2d 782 (Fla. 4th DCA 1995)
    …nd 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 an affirmance of this sentencing error. The record reveals that appellant never h…
  • Montague v. State, 656 So. 2d 508 (Fla. 2d DCA 1995)
    …this determination, we specifically hold that pregnancy followed by a miscarriage resulting from an unlawful sexual act constitutes physical injury or trauma which may be scored as victim injury under the sentencing guidelines. See Fenelon v. State, 629 So. 2d 955 (Fla. 4th DCA 1993) (pregnancy and childbirth resulting from a sexual battery constitute physical injury).4 Of course, “the extent of actual injury may be debated by the parties[,]” subject to resolution by the trial court using the same standards a…
  • Montague v. State, 702 So. 2d 237 (Fla. 2d DCA 1997)
    …of counsel is facially sufficient and the court’s order fails to refute his claim. Accordingly, we reverse the order denying Montague’s motion for posteonvietion relief as to this issue only. We refer the trial court to the case of Fenelon v. State, 629 So. 2d 955 (Fla. 4th DCA 1993), to assist in the determination of what constitutes victim injury under the [*238] circumstances of this case. See State v. Montague, 682 So. 2d 1085 (Fla.1996). On remand, the trial court may either hold an evidentiary hearing t…

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