JAMES NOLAN WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Nolan Wilson appealed his sentence following revocation of community control for sexual activity with a child. The appellate court found two sentencing errors: improper imposition of victim injury points without determining the extent of actual injury, and use of a newly prepared scoresheet instead of the original scoresheet with appropriate cell bumps for the probation violation.
The court reversed and remanded because the record did not indicate the basis for imposing victim injury points, requiring a de novo hearing to determine the extent of victim injury. Additionally, the trial court erred by using a newly prepared scoresheet instead of the original scoresheet with a two-cell bump (one for each successive violation) for the probation violation sentence.
[1] Victim injury points must be based on evidence of actual injuries suffered by the victim, not merely allegations of contact or attempted penetration.
[2] A trial court may conduct a de novo hearing on remand to determine the extent of victim injury for the purpose of assessing sentencing points.
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Join FLexlaw to unlock all legal intelligence“The record does not indicate the basis for imposing victim injury points. The information alleged contact and attempted penetration but did not allege any other injuries suffered by the victim. Thus, we reverse for a proper determination of victim injury points.”
Establishes the core holding that victim injury points require a factual determination of actual injury, not merely conviction charges
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Join FLexlaw to unlock all legal intelligenceWilson was convicted of two counts of sexual activity with a child by a person in familial authority. His original scoresheet assessed 20 victim injur…
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BLUE, Judge.
James Nolan Wilson appeals his sentence following the revocation of his community control. Wilson’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wilson, pro se, challenges the imposition of victim injury points and the trial court’s use of a newly prepared scoresheet for sentencing on a violation of probation. Because we find merit in Wilson’s arguments, we reverse and remand for resentencing.
Wilson was convicted of two counts of sexual activity with a child by a person in familial authority. § 794.041(2)(b), Fla.Stat. (1987). On his original scoresheet, 20 victim injury points were assessed for contact but no penetration and 40 points were assessed for penetration or slight injury. Wilson was sentenced to seven years in prison followed by five years on probation. After his release from prison, Wilson violated his probation. Ultimately, he was given a 22-year suspended prison sentence with one year in county jail to be followed by two years on community control and seven years on probation. When Wilson violated his community control, the trial court sentenced him to 22 years in prison.
The record does not indicate the basis for imposing victim injury points. The information alleged contact and attempted penetration but did not allege any other injuries suffered by the victim. Thus, we reverse for a proper determination of victim injury points. See Karchesky v. State, 591 So. 2d 930 (Fla.1992). On remand, the trial court may reimpose the points, if appropriate, after a de novo hearing to determine the extent of victim injury. See Morris v. State, 605 So. 2d 511 (Fla. 2d DCA 1992).
We reject the state’s argument that Wilson has waived these issues or that any error is harmless. See Daum v. State, 544 So. 2d 1035 (Fla. 2d DCA) (holding that the issue of victim injury points presents a question of law which may be raised at any time), review denied, 551 So. 2d 462 (Fla.1989); Najar v. State, 614 So. 2d 644, 645 (Fla. 2d DCA 1993) (holding that scoresheet errors are not harmless even though a sentence falls within the corrected cell when an appellate court is unable to determine that the trial court “would have extended the sentence into the farthest reach of the permitted range had it considered an accurate scoresheet”).
In addition, the trial court erred at the sentencing for Wilson’s violation of probation by using a newly prepared scoresheet instead of the original scoresheet with a one-cell bump. See Parrish v. State, 617 So. 2d 1170 (Fla. 5th DCA 1993). On remand, the trial court should use the original scoresheet with a two-cell bump, one for each successive violation. See Williams v. State, 594 So. 2d 273 (Fla.1992).
Reversed and remanded for resentencing in accordance with this opinion.
PARKER, A.C.J., and PATTERSON, J., concur.
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Barnes v. State, 661 So. 2d 71 (Fla. 2d DCA 1995)…refute Barnes’ claim. If the court determines that the motion should be granted, the state shall be allowed to withdraw from the plea agreement, if desired; or Barnes shall be resentenced in accordance with this court’s decisions in Wilson v. State, 648 So. 2d 1219 (Fla. 2d DCA 1995), and Morris, 605 So. 2d at 514. Reversed and remanded with directions. DANAHY, A.C.J., and PARKER and WHATLEY, JJ., concur. . Florida Rule of Criminal Procedure 3.800 contains no proscription against successive motions. Braddy…
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Montague v. State, 656 So. 2d 508 (Fla. 2d DCA 1995)…s trial.3 Accordingly, as in Jiles, we remand this case for a de novo sentencing hearing to determine the extent of victim injury as to each count, after which the trial court may reassess victim injury points if appropriate. Accord Wilson v. State, 648 So. 2d 1219 (Fla. 2d DCA 1995); cf. Kalina v. State, 596 So. 2d 1114 (Fla. 2d DCA 1992); English v. State, 529 So. 2d 1272 (Fla. 2d DCA 1988) (guidelines scoresheet to be recalculated on remand to reflect prior convictions state could verify). To assist the tr…
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Jiles v. State, 652 So. 2d 959 (Fla. 2d DCA 1995)…12 years rather than 7 to 17 years. Because Mr. Jiles’ 15-year sentence for committing a lewd act is beyond the correct presumptive range, we reverse this sentence and remand for resentencing. Consistent with our recent decision in Wilson v. State, 648 So. 2d 1219 (Fla. 2d DCA 1995) (citing Morris v. State, 605 So. 2d 511 (Fla. 2d DCA 1992)), “[o]n remand, the trial court may reimpose the points, if appropriate, after a de novo hearing to determine the extent of victim injury.” Affirmed in part, reversed in…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Williams v. State, 594 So. 2d 273 (Fla. 1992)
- Silas v. Morris, 605 So. 2d 511 (Fla. 2d DCA 1992)
- Daum v. State, 544 So. 2d 1035 (Fla. 2d DCA 1989)
- Najar v. State, 614 So. 2d 644 (Fla. 2d DCA 1993)
- Parrish v. State, 617 So. 2d 1170 (Fla. 5th DCA 1993)