GERALD ALLEN FULKROAD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gerald Fulkroad appealed the denial of his motion to correct an illegal sentence for sexual abuse of a child. The court held that under the law in effect when Fulkroad committed his offense, victim injury points for penetration could not be scored absent ascertainable physical injury, and thus his 40-point victim injury assessment was unlawful and must be corrected.
Victim injury points for penetration alone cannot be scored absent ascertainable physical injury under the rule in effect at the time of Fulkroad's offense. The 40 points assessed were unlawful, and the case must be remanded for the trial court to determine whether actual physical injury occurred; if not, the scoresheet must be corrected and Fulkroad resentenced.
[1] Victim injury points may not be assessed for penetration alone unless ascertainable physical injury resulted from the penetration.
[2] Amendments to sentencing statutes cannot be retrospectively applied to offenses committed prior to their effective dates.
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“penetration, which does not cause ascertainable physical injury, does not result in victim injury as contemplated by the rule for which victim-injury points may be assessed”
Establishes the governing legal standard from Karchesky that penetration alone without physical injury cannot support victim injury points under the rule in effect at the time of Fulkroad's offense.
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Join FLexlaw to unlock all legal intelligenceFulkroad pleaded nolo contendere to engaging in sexual activity with a child while in a position of familial or custodial authority under Florida Stat…
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FRANK, Chief Judge.
Gerald Allen Fulkroad has appealed from the denial of his motion to correct an illegal sentence. Fulkroad pleaded nolo contendere to engaging in sexual activity with a child while in a position of familial or custodial authority, a violation of section 794.041(2)(b), Florida Statutes (1989). He committed the offense on a date falling between November 1, 1990, and June 30, 1991. He was sentenced in accordance with the guidelines on March 30, 1992. The scoresheet utilized at sentencing reveals 40 points for victim injury based solely upon penetration. Fulkroad contends that this assessment was unlawful, and we agree.
In Karchesky v. State, 591 So. 2d 930, 932 (Fla.1992), the supreme court ruled that “penetration, which does not cause ascertainable physical injury, does not result in victim injury as contemplated by the rule for which victim-injury points may be assessed.” The Florida Legislature amended section 921.001, Florida Statutes (1991), effective April 8, 1992, to reflect its intention that penetration be scored regardless of physical 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). Thus, the victim injury rule applicable to Fulkroad is the one in effect at the time of his offense. Karchesky, construing Florida Rule of Criminal Procedure 3.701(d)7, the rule in effect at the time Fulkroad committed his crime, foreclosed the trial court from scoring victim injury points for penetration unless, of course, the sexual contact with which he was charged resulted in an ascertainable physical trauma. In the absence of evidence that the victim in this case endured physical trauma, the 40 points for victim injury should not have been scored.
Accordingly, we reverse and remand. The trial court may again deny the motion but only if, after reviewing the court’s file and record, or conducting an evidentiary hearing, it determines that actual physical injury, wholly apart from penetration, occurred. If, on the other hand, no physical injury is proved, the scoresheet must be corrected and Fulkroad resentenced. See Harrelson; Jones v. State, 615 So. 2d 705 (Fla. 2d DCA 1992).
Reversed and remanded.
PATTERSON and FULMER, JJ., concur. . Chapter 92-135, § 1, Laws of Florida, establishes, for purposes of the statewide sentencing guidelines, that "if the conviction is for an offense described in chapter 794 ... 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.”
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Sprankle v. State, 662 So. 2d 736 (Fla. 2d DCA 1995)…resheet; see Sellers v. State, 578 So. 2d 339, 341 (Fla. 1st DCA), approved, 586 So. 2d 340 (Fla.1991), unless after reviewing the record or conducting an evidentiary hearing it determines that actual physical injury occurred. See Fulkroad v. State, 640 So. 2d 1160, 1161 (Fla.2d DCA), review denied, 649 So. 2d 235 (Fla.1994). Affirmed in part, reversed in part and remanded for further proceedings. DANAHY, A.C.J., and CAMPBELL and LAZZARA, JJ., concur.…
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Shaw v. State, 780 So. 2d 188 (Fla. 2d DCA 2001)…argument is improper because the amended sentencing statutes superseded Karchesky. Pursuant to this amendment, sexual penetration may be scored for victim injury regardless of physical injury, as was done on Shaw’s scoresheet. See Fulkroad v. State, 640 So. 2d 1160, 1160-1161 (Fla. 2d DCA 1994). Accordingly, we affirm the trial court’s conclusion that issue one is not properly raised in a rule 3.800(a) motion. In issue two, Shaw asserts that his forty-seven year prison sentence exceeds the statutory maximum.…
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Cairl v. State, 833 So. 2d 312 (Fla. 2d DCA 2003)…ng which Karchesky v. State, 591 So. 2d 930 (Fla.1992), controlled the issue of victim injury points; (2) April 8, 1992, to December 31, 1993, during which Karchesky was abrogated by statute (see § 921.001, Fla. Stat. (Supp.1992); Fulkroad v. State, 640 So. 2d 1160 (Fla. 2d DCA 1994)); and (3) January 1, 1994, to February 4, 1997, during which the 1994 guidelines apply (see Mays v. State, 717 So. 2d 515 (Fla.1998); Trapp v. State, 760 So. 2d 924 (Fla.2000)). . Although we stated that the statute took effect i…
Previewing 3 of 9 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)
- Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA 1993)
- Morales v. State, 613 So. 2d 922 (Fla. 3d DCA 1993)
- Weckerle v. State, 626 So. 2d 1038 (Fla. 4th DCA 1993)
- City OF Coral Gables v. NEW Times Newspapers OF Fla., Inc., 615 So. 2d 705 (Fla. 3d DCA 1992)
- Jones v. State, 615 So. 2d 705 (Fla. 2d DCA 1992)
- Kleshinski v. State, 620 So. 2d 1303 (Fla. 2d DCA 1993)
- Reynolds v. State, 622 So. 2d 1139 (Fla. 5th DCA 1993)
- Mitchell v. State, 635 So. 2d 1073 (Fla. 1st DCA 1994)