RICARDO RIBAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the trial court improperly scored victim injury points for contact without penetration, requiring resentencing within the original guidelines range.
[1] Victim injury points may not be scored for sexual offenses when there is contact but no penetration and no ascertainable physical injury.
[2] A statute that abrogates a prior judicial holding regarding sentencing is not retroactive unless expressly stated.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of attempted sexual battery on a child. After prior sentences were reversed, the trial court on remand scored victim injur…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Attempted Sexual Battery On A Child cases and more on FLexlaw
PER CURIAM.
Mr. Ribas appeals his concurrent sentences of 9 years’ imprisonment for two counts of attempted sexual battery on a child eleven years of age or younger by a person eighteen years of age or older. We reverse the sentences because the trial court improperly scored victim injury.
A jury convicted the defendant of two counts of attempted sexual battery on a child for incidents occurring between October 1987 and January 1988. On November 9, 1988, the trial court imposed concurrent upward departure sentences of 25 years’ imprisonment on each count. This court reversed the sentences on November 6, 1992, because the trial court’s reasons for departure were invalid. We remanded for resentencing within the recommended guidelines range. Ribas v. State, 606 So. 2d 1278 (Fla. 2d DCA 1992).
On remand, the trial court allocated 259 points for the primary offense category, which established a recommended range of 5½ to 7 years’ imprisonment. The state sought victim injury points because the defendant “fondled” the victim. The trial court added 20 points to the score for “contact but no penetration,” which resulted in a recommended range of 7 to 9 years’ imprisonment. The trial court resentenced Mr. Ribas to concurrent 9-year sentences.
In Karchesky v. State, 591 So. 2d 930 (Fla.1992), the supreme court held that a trial court may not score victim injury points on the sexual offenses scoresheet for penetration which does not cause ascertainable physical injury. See also Fulkroad v. State, 640 So. 2d 1160 (Fla. 2d DCA 1994); Morris v. State, 605 So. 2d 511 (Fla.2d DCA 1992). Although the Florida Legislature abrogated Karchesky, see § 921.001, Fla.Stat. (Supp.1992), the new statute is not retroactive. Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA), review denied, 624 So. 2d 268 (Fla.1993).
The trial court based victim injury solely on contact with the victim. Accordingly, we remand for resentencing within the recommended guidelines range of 5½ to 7 years’ imprisonment.
Reversed and remanded.
CAMPBELL, A.C.J., and ALTENBERND and LAZZARA, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Montague v. State, 656 So. 2d 508 (Fla. 2d DCA 1995)…te of section 921.001(8), Florida Statutes (Supp.1992), which abrogated the holding of Karchesky, the terms of this statute may not be retroactively [*509] applied to justify the assessment of victim injury points in this case. E.g., Ribas v. State, 641 So. 2d 492 (Fla. 2d DCA 1994). . We note, in that regard, that victim injury is not an element of the offenses appellant was charged with committing. . To avoid any possibility of intradistrict conflict, we specifically agree with the Fenelon court's analysi…
Authorities Cited
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Silas v. Morris, 605 So. 2d 511 (Fla. 2d DCA 1992)
- Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA 1993)
- Fulkroad v. State, 640 So. 2d 1160 (Fla. 2d DCA 1994)
- Campagna v. Dicus, 606 So. 2d 1278 (Fla. 2d DCA 1992)
- Ribas v. State, 606 So. 2d 1278 (Fla. 2d DCA 1992)