DARIAN WRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Darian Wright appeals his probation revocation sentence, challenging the trial court's inclusion of forty points for victim injury in the sentencing guidelines. The court reverses and remands, holding that the forty points for sexual penetration were erroneous and should have been eighteen points for sexual contact.
The trial court erred by allowing forty points for penetration when the correct score should have been eighteen points for sexual contact. This sentencing error is correctable on direct appeal even though Wright may have waived the objection under Rule 3.800(a), as the question of how many points should be scored for victim injury is a question of law that may be raised at any time.
[1] A sentencing court errs by improperly scoring victim injury points on a guidelines score sheet.
[2] A defendant does not waive the right to appeal a sentencing error that is a question of law, even if not raised at the original sentencing hearing.
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Join FLexlaw to unlock all legal intelligence“the question of how many points should be scored for victim injury is a question of law which may be raised at any time”
Establishes that victim injury scoring issues are not waived by failure to object and may be raised on appeal
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Join FLexlaw to unlock all legal intelligenceWright pleaded guilty to lewd and lascivious conduct and received eight years of probation. One year later, he pleaded guilty to violating his probati…
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PARKER, Chief Judge.
Darían Wright appeals the sentence that the trial court imposed upon him following revocation of his probation. Wright argues that the trial court erred in, allowing the addition of forty points to his guidelines score for victim injury. We reverse.
Pursuant to a negotiated plea, Wright pleaded guilty to one count of lewd and lascivious conduct in exchange for eight years of probation.. One year later, Wright pleaded guilty to violation of his probation. During sentencing, the publie defender objected to the forty points scored for sexual penetration arguing that it should only be eighteen points for sexual contact. The trial court overruled the objection and sentenced Wright to six years in prison.
The record does not support that Wright agreed, as part of his original plea, to forty points for victim injury. There is no discussion of the scoresheet because the State had an agreement that Wright would serve eight years of probation in exchange for his plea. Wright correctly argues that the new sentence imposed upon revocation of probation would be two cells lower than the original score.
We agree that the trial court erred by allowing the inclusion of forty points for penetration. See Damn v. State, 544 So. 2d 1035, 1036 (Fla. 2d DCA 1989). The State argues that, even if the trial court erred by not correcting the scoresheet, Wright waived his right to appeal this sentencing issue because he failed to object at the original sentencing hearing. However, this court in Damn, held that “the question of how many points should be scored for victim injury is a question of law which may be raised at any time.” Id. at 1036. Even if this issue is not cognizable under rule 3.800(a),1 it is correctable on direct appeal for sentencing errors which occurred upon revocation of probation. See State v. Evans, 693 So. 2d 553 (Fla.1997). Accordingly, we reverse this case and remand for correction of the scoresheet to reflect points for contact instead of penetration and for resentencing, because we cannot glean from the record that the trial court would have given the same sentence had it known the correct score. See Sprankle v. State, 662 So. 2d 736 (Fla. 2d DCA 1995).
Reversed and remanded.
PATTERSON and FULMER, JJ., concur. . See Davis v. State, 661 So. 2d 1193, 1197 (Fla.1995) (holding that erroneous sentence correctable only on direct appeal).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Tasker v. State, 48 So. 3d 798 (Fla. 2010)…rg v. State, 802 So. 2d 361 (Fla. 2d DCA 2001) (holding that a claim that victim injury points for penetration were incorrectly assessed on scoresheet could be raised in a rule 3.800(a) motion even after violation of probation); and Wright v. State, 707 So. 2d 385 (Fla. 2d DCA 1998) (explaining defendant did not waive right to challenge scoresheet points for victim injury for penetration by not raising issue at original sentencing hearing). We certify conflict with Stubbs, Spell, and Bogan. Id. at 890-91. I…1 / 2
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Spell v. State, 731 So. 2d 9 (Fla. 2d DCA 1999)…ed on resentencing after his violation of community control. Because we find that the trial court should have corrected Spell’s scoresheet by deletion of the victim injury points, we reverse. Spell relies on this court’s opinion in Wright v. State, 707 So. 2d 385 (Fla. 2d DCA 1998), to advance his argument that a scoresheet error is reviewable at resen-tencing after a community control violation, even when there was no objection at the original sentencing. This case is indistinguishable from Wright; therefor…
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Stubbs v. State, 951 So. 2d 910 (Fla. 2d DCA 2007)…Bogan v. State, 725 So. 2d 1216, 1217 (Fla. 2d DCA 1999). This rule applies even where the defendant pleads pursuant to a negotiated plea if he or she did not specifically agree to the inclusion of the points on the scoresheet. See Wright v. State, 707 So. 2d 385, 385 (Fla. 2d DCA 1998). Here, there is no indication in the record that Stubbs agreed as part of his negotiated plea to the inclusion of victim injury and legal constraint points. Accordingly, the trial court erred when it refused to permit Stubbs…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. State, 661 So. 2d 1193 (Fla. 1995)
- Sprankle v. State, 662 So. 2d 736 (Fla. 2d DCA 1995)
- Daum v. State, 544 So. 2d 1035 (Fla. 2d DCA 1989)
- State v. Kison Evans, 693 So. 2d 553 (Fla. 1997)