OTIS MCCALISTER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a defendant must contemporaneously object to the scoring of victim injury points to preserve a claim based on Karchesky v. State.
Defendant was convicted of sexual battery and lewd assault and received consecutive sentences. He later sought to correct his sentence based on a new …
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PER CURIAM.
The defendant was convicted of ten counts of sexual battery and one count of lewd assault. A sentencing seoresheet was prepared on which the defendant received 400 points in the category of victim impact for “penetration or slight injury.” See Fla. R.Crim.P. 3.988(b). The defendant received consecutive sentences totaling 315 years. He appealed to this court, and we affirmed his convictions and sentences per curiam, without written opinion. McCalister v. State, 557 So. 2d 56 (Fla. 3d DCA 1989).
On January 16, 1992, the Florida Supreme Court handed down Karchesky v. State, 591 So. 2d 930 (Fla.1992), holding that based on then-existing Florida Rule of Criminal Procedure 3.701(d)(7) (1985), sentencing points could not be scored solely for victim penetration without some accompanying physical injury or trauma. Relying on Karchesky, the defendant filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800. That motion was denied, and the defendant now appeals.
The defendant here failed to object to the assessing of victim injury points at trial, failed to raise the issue on direct appeal, and failed to raise the issue in a previously denied Rule 3.850 motion. Because we conclude that Pinacle v. State, 654 So. 2d 908 (Fla.1995) (citing Perryman v. State, 608 So. 2d 528 (Fla. 1st DCA 1992), review denied, 621 So. 2d 432 (Fla.1993)), requires a contemporaneous objection to preserve a Karchesky issue, we affirm the order under review. Contra Montague v. State, 656 So. 2d 508 (Fla. 2d DCA), review granted, 662 So. 2d 933 (Fla.1995). Under this reasoning, we need go no further in analyzing defendant’s remaining arguments to conclude that the trial court’s denial of the motion was proper. Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Montague, 682 So. 2d 1085 (Fla. 1996)…ppellate review. Id. at 510. Based upon our decision in Pinacle, we answer the certified question in the affirmative and hold that Montague’s failure to raise the issue in the trial court is fatal to his claim on appeal. Accord McCalister v. State, 664 So. 2d 1149, 1150 (Fla. 3d DCA 1995) (concluding that Pinacle “requires a contemporaneous objection to preserve a Karchesky issue”). In Pinacle v. State, 625 So. 2d 1273 (Fla. 3rd DCA 1993), the Third District, citing to Perryman v. State, 608 So. 2d 528 (Fla.…
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Clark v. State, 679 So. 2d 321 (Fla. 3d DCA 1996)…a.1992), the defendant also challenges the assessment of sentencing points for “victim injury” when, he says, there was evidence only of penetration. Because it is unclear whether this point was properly preserved below, compare McCalister v. State, 664 So. 2d 1149 (Fla. 3d DCA 1995) with Pinocle v. State, 654 So. 2d 908 (Fla.1995), we deem it appropriate to remand the cause for a hearing as to whether there was, in fact, additional victim injury apart from penetration, for which points could properly have bee…
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McCALISTER v. State, 682 So. 2d 556 (Fla. 1996)…PER CURIAM. We have for review McCalister v. State, 664 So. 2d 1149 (Fla. 3d DCA 1995), which expressly and directly conflicts with the opinion in Montague v. State, 656 So. 2d 508 (Fla. 2d DCA 1995). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We recently quashed the decision in Montague and held that a…
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)
- Perryman v. State, 608 So. 2d 528 (Fla. 1st DCA 1992)
- Dewayne Jermaine Pinacle v. State, 654 So. 2d 908 (Fla. 1995)
- Montague v. State, 656 So. 2d 508 (Fla. 2d DCA 1995)
- McCalister v. State, 557 So. 2d 56 (Fla. 3d DCA 1989)