ALLEN A. HAMMETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
AFFIRMED. See Dickinson v. State, 693 So. 2d 55 (Fla. 5th DCA 1997).
GOSHORN and PETERSON, JJ., concur. DAUKSCH, J., dissents with opinion.
DAUKSCH, Judge,
dissenting.
I respectfully dissent.
The question on appeal is whether sentencing points should be scored against appellant because of penetration of the penis into the anus in a sexual battery case. While I agree that penetration occurs when the penis is put into the anus, I disagree that this appellant should be assessed the points because in this case it was the victim who inserted his penis into the anus of the appellant. Thus, appellant committed no act of penetration which warranted scoring extra points for a greater sentence. Under section 921.001(7), Florida Statutes (1991), those points are classified as “severe injury,” as is indeed proper, but this penetration was not done on the victim so the injury obviously contemplated by the legislature did not occur here. If the argument is to be made that the legislature did not designate “who .penetrates whom,” and therefore penetration by either violates the statute, then the statute is vague or ambiguous. The benefit of that doubt must go to the accused. See Thompson v. State, 695 So. 2d 691 (Fla. 1997); Chicone v. State, 684 So. 2d 736 (Fla. 1996).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hammett v. State, 827 So. 2d 406 (Fla. 5th DCA 2002)…under the guidelines. The trial court noted that Hammett and the state had negotiated a sentence at the low end of the guidelines, which is what Hammett received. Hammett appealed and this court affirmed his 10.5 year sentence. See Hammett v. State, 700 So. 2d 21 (Fla. 5th DCA 1997). In 2000, Hammett appealed the summary denial of his motion for post-convic [*407] tion relief. In his appeal, he argued ineffective assistance of post-conviction counsel. Again, this court affirmed the trial court finding no me…
Authorities Cited
- Chicone v. State, 684 So. 2d 736 (Fla. 1996)
- Thompson v. State, 695 So. 2d 691 (Fla. 1997)
- Dickinson v. State, 693 So. 2d 55 (Fla. 5th DCA 1997)