VALENTINE NICHOLSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Valentine Nicholson appealed his sexual battery convictions and sentence. The court affirmed the convictions but found that the sentencing guidelines scoresheet improperly included points for victim injury based on penetration without ascertainable physical injury, requiring resentencing.
The court held that it was error to include victim injury points on the sentencing scoresheet because the law in effect when the crime was committed did not permit such points, and a later statute overriding that law could not be applied retroactively. The court did not find reversible error regarding the voir dire limitation because the record was insufficient to show what specific questions defense counsel wanted to ask.
[1] Points for victim injury cannot be included on a sentencing guidelines scoresheet for sexual battery if the penetration did not cause ascertainable physical injury, under…
[2] A statute enacted to override a judicial decision regarding sentencing cannot be applied retroactively to crimes committed before its effective date.
Previewing 2 of 4 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“At the time the defendant committed the offenses on October 1, 1991, the law did not permit the inclusion of points for victim injury based solely on penetration which did not cause ascertainable physical injury in a sexual battery case.”
Establishes the controlling law at the time of the offense and the basis for finding sentencing error
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn October 1, 1991, Nicholson committed sexual battery offenses. At sentencing, the trial court included points on the sentencing guidelines scoreshee…
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FULMER, Judge.
The defendant, Valentine Nicholson, appeals his convictions and sentence for sexual battery. We find merit in defendant’s claim that it was error to include points on the sentencing guidelines scoresheet for victim injury.
At the time the defendant committed the offenses on October 1, 1991, the law did not permit the inclusion of points for victim injury based solely on penetration which did not cause ascertainable physical injury in a sexual battery case. See Karchesky v. State, 591 So. 2d 930 (Fla.1992). Further, although section 794.005, Florida Statutes (Supp.1992), which was passed to override Karchesky, was in effect at the time the defendant was sentenced, that law cannot be applied retroactively to crimes committed before its effective date. Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA 1993). Therefore, it was error to include points on the sentencing score-sheet for victim injury.
The defendant raises another issue that warrants comment even though we do not find reversible error. The defendant claims that the trial court erred in refusing to allow defense counsel to question prospective jurors about whether they could properly consider Williams1 rule evidence. Lack -of adequate voir dire can infringe on the accused’s constitutionally guaranteed right to a fair and impartial jury. Lavado v. State, 492 So. 2d 1322 (Fla.1986). Jurors’ attitudes about a legal doctrine or law can be essential in a particular case to a determination of whether challenges for cause or peremptory challenges are to be made. The scope of voir dire properly includes questions about and references to such legal doctrines. However, the record before us is not sufficient to show what questions defense counsel desired to ask regarding the state’s use of Williams rule evidence. Therefore, we are unable to determine whether the trial court refused to allow what may have been proper questioning of the prospective jurors.
The defendant’s convictions are affirmed, and the cause is remanded for resentencing.
SCHOONOVER, A.C.J., and BLUE, J., concur. . Williams v. State, 110 So. 2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).
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Watson v. State, 693 So. 2d 69 (Fla. 2d DCA 1997)….1986)(counsel must be allowed to question jurors about his defense). Furthermore, it is not for us to say what type of questions counsel should deem important, as long as they are not improper. Perry, 675 So. 2d at 979. See also Nicholson v. State, 639 So. 2d 1027 (Fla. 2d DCA 1994). Next, based upon the record presented to us, the jurors were never asked if they would follow the court’s general instructions which the majority concludes corrected any problems. Lavado, 492 So. 2d at 1323. Prior to counsel’s q…
Authorities Cited
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Williams v. Florida, 361 U.S. 847 (U.S. 1959)
- White v. Illinois, 361 U.S. 847 (U.S. 1959)
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Lavado v. State, 492 So. 2d 1322 (Fla. 1986)
- Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA 1993)