DAVID PALMER MAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the conviction but vacated the sentence because the jury's verdict did not specify whether penetration occurred, making the sentencing score uncertain.
Appellant was convicted of a lewd or lascivious act on a child under sixteen. The sentence was based on a scoresheet assessing points for sexual penet…
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PETERSON, Judge.
The appellant was found guilty of committing a lewd or lascivious act on a child under sixteen. § 800.04, Fla. Stat. (1997).
Appellant’s sentence was based on a sentencing guidelines scoresheet in which 80 points were assessed for sexual penetration. See Fla. R.Crim. P. 8.991. We affirm the judgment of conviction, but vacate the sentence and remand for re sentencing.
The jury’s verdict failed to specify whether penetration took place. The evidence presented during trial described both a lewd fondling (which did not involve penetration) and the commission of oral sex (which may constitute penetration). Dickinson v. State, 693 So. 2d 55 (Fla. 5th DCA 1997). Either of these acts would support appellant’s conviction for a lewd and lascivious act on a child under the age of sixteen and therefore it cannot be determined upon which act or acts the jury based its verdict. Accordingly, only 40 points for “sexual contact” should have been assessed. Because we cannot be sure that the court would have imposed the same sentence absent the additional 40 points for penetration, we vacate the sentence and remand for resentencing.
AFFIRMED IN PART; VACATED IN PART; REMANDED.
GOSHORN and HARRIS, JJ., concur.
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Wright v. State, 739 So. 2d 1230 (Fla. 1st DCA 1999)…the jury based its verdict in Count Two on a finding of penetration. Finding no merit to the first two claims, we affirm Wright’s conviction. However, we vacate the sentence and remand for resentencing based on a corrected score-sheet. May v. State, 721 So. 2d 741 (Fla. 5th DCA 1998), rev. den., 729 So. 2d 394 (Fla.1999). Constitutional Challenge The defense moved to dismiss Count Two on the grounds that section 794.05, Florida Statutes (1997), which makes it a second-degree felony for a person 24 years of…
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McCLOUD v. State, 741 So. 2d 512 (Fla. 5th DCA 1999)…e’s motion for rehearing and issued an opinion approving the sentence. The defendant, Terrance McCloud, now seeks rehearing en banc of our second opinion urging that the opinion is in conflict with another recent opinion of this court, May v. State, 721 So. 2d 741 (Fla. 5th DCA 1998), review denied, 720 So. 2d 394 (Fla.1999). We have elected to consider this case en banc in order to resolve any conflict between May and this case. After considering the issue, the court, en banc, approves the decision on rehear…1 / 2
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- Dickinson v. State, 693 So. 2d 55 (Fla. 5th DCA 1997)