ROBERT EDWIN PATTERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Patterson appeals his conviction and sentence in a capital sexual battery case. The court affirmed his convictions but vacated his sentence after determining that the trial court erroneously included victim injury points for penetration in calculating the sentencing guidelines scoresheet, contrary to the law in effect when the crime was committed.
The court affirmed Patterson's convictions but held that the trial court erroneously included victim injury points for penetration in the sentencing guidelines scoresheet. The correct law at the time of the offense, established in Karchesky v. State, prohibited such points absent evidence of other physical injury. The sentence was therefore vacated and the case remanded for resentencing under a corrected scoresheet.
[1] Victim injury points for sexual penetration cannot be assessed in a sexual battery case absent proof of other physical injury, according to the law in effect at the time…
[2] A sentence imposed based on an erroneous sentencing guidelines scoresheet may be vacated and remanded for resentencing.
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“victim injury points cannot be assessed for penetration in a sexual battery case, but only for other physical injury”
Establishes the controlling legal standard from Karchesky v. State that applied when Patterson's crime was committed
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePatterson was convicted of capital sexual battery under Florida law and two counts of committing a lewd act on a child. The trial court calculated his…
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W. SHARP, Judge.
Patterson moves for rehearing, citing two cases which were decided after we affirmed his conviction and sentence in a capital sexual battery case.1 See Fulkroad v. State, 640 So. 2d 1160 (Fla. 2d DCA 1994) and Scott v. State, 638 So. 2d 616 (Fla. 4th DCA 1994). He was also convicted of two counts of committing a lewd act on a child.2 We grant his motion for rehearing and withdraw our PCA, replacing it with the following opinion.
We affirm Patterson’s convictions and judgment on all counts but we find the trial court erroneously included victim injury points for penetration in calculating the sentencing guidelines scoresheet. At the time this sexual battery was committed, section 921.001(8) was not in effect. That statute now provides:
[I]f ... 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.
Karchesky v. State, 591 So. 2d 930 (Fla.1992) controls this case because it was the law of this state when the crime occurred. Fulkroad; Scott. Karchesky holds that victim injury points cannot be assessed for penetration in a sexual battery ease, but only for other physical injury. None was proved in this case.
The removal of victim injury points from Patterson’s scoresheet makes his sentence fall at the far end of the permissible range rather than the middle of the recommended range. In this case, the trial judge may have intended to impose a sentence in the recommended range rather than the permitted range, as evidenced by the original sentence imposed. Thus, in fairness to Patterson, the judge should be given a chance to resentence him, pursuant to a corrected scoresheet. Horne v. State, 593 So. 2d 309 (Fla. 5th DCA 1992); Scott.
Accordingly, we affirm the adjudication of guilt, vacate the sentence, and remand with directions to resentence Patterson pursuant to a corrected scoresheet.
AFFIRMED in part; Sentence VACATED; REMANDED to Resentence.
GOSHORN and THOMPSON, JJ., concur. . § 794.011(2), Fla.Stat. (1989).
. § 800.04(1), Fla.Stat. (1989).
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Citator
Cited By
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Errol Perry v. State, 653 So. 2d 1114 (Fla. 5th DCA 1995)…robation. We agree and vacate Perry’s sentences. The state concedes that at the time the offenses were committed, victim injury points could not be assessed for “penetration” alone. Karchesky v. State, 591 So. 2d 930 (Fla.1992); Patterson v. State, 641 So. 2d 456 (Fla. 5th DCA 1994); Goodwin v. State, 600 So. 2d 1310 (Fla. 5th DCA 1992). Although the legislature amended section 921.001 in 1992 to allow victim injury points to be assessed for “penetration,”5 this amendment cannot be retroactively applied to c…
Authorities Cited
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Fulkroad v. State, 640 So. 2d 1160 (Fla. 2d DCA 1994)
- Johnson v. Dep't of Health & Rehabilitative Servs., 638 So. 2d 616 (Fla. 1st DCA 1994)
- Turner v. State, 593 So. 2d 309 (Fla. 4th DCA 1992)
- Horne v. State, 593 So. 2d 309 (Fla. 5th DCA 1992)