THOMAS HENRY SPIOCH, III, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Henry Spioch, III appeals his sentence for multiple convictions of lewd and lascivious assault on a minor, challenging the trial court's imposition of victim injury points. The Florida District Court of Appeal reverses and remands, holding that victim injury points were improperly assessed because the defendant's conduct (fondling through clothing) did not constitute the level of sexual contact required under Florida law.
The court held that victim injury points should not have been assessed because the defendant's conduct did not constitute the requisite sexual contact. Under Florida law, 'contact' for victim injury points means the union of the sexual organ of one person with the oral, anal, or vaginal opening of another, or sexual battery involving penetration. Fondling through clothing does not satisfy this standard.
[1] Victim injury points may be assessed in cases involving penetration or sexual contact, abrogating prior law that required physical trauma.
[2] Fondling a victim's penis through clothing does not constitute "sexual contact" for the purpose of assessing victim injury points in the absence of penetration or union.
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Join FLexlaw to unlock all legal intelligence“contact" meant the union of the sexual organ of one person with the oral, anal or vaginal opening of another. Thus, this court held, in the absence of physical trauma, victim injury points are appropriately assessed only in cases involving sexual battery, either by penetration or union.”
Establishes the narrow definition of sexual 'contact' required for victim injury points, limiting it to penetration or union of organs rather than mere touching.
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Join FLexlaw to unlock all legal intelligenceSpioch was convicted of twenty-three counts of lewd and lascivious assault on a minor. The victim testified that Spioch fondled the victim's penis thr…
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THOMPSON, J.
Thomas Henry Spioch, III, appeals his sentence, contending that the court erred in imposing victim injury points. The state cross-appeals the sentence of time served for two of the twenty-three convictions for lewd and lascivious assault on a minor. We reverse the sentence because the court erred in assessing victim injury points.
First, we do not agree with Spioch that his sentences are controlled by Karchesky v. State, 591 So. 2d 930 (Fla.1992), which precluded the imposition of victim injury points in the absence of physical trauma. The testimony of both the victim and Spioch himself (who contended that the victim was the aggressor) established that the series of crimes began after the effective date of section 921.001(8), Florida Statutes (Supp.1992), which abrogated Karchesky, and which provided for the assessment of victim injury points in cases involving penetration or sexual “contact.” See also, § 921.001(7), Fla. Stat. (1993).
Spioch further contends that the acts to which the victim testified, Spioch’s fondling of the victim’s penis through the victim’s clothing, do not qualify for victim injury points. We conclude that Spioch has adequately preserved this issue. See Pinacle v. State, 654 So. 2d 908 (Fla.1995). In Reyes v. State, 709 So. 2d 181 (Fla. 5th DCA 1998), the trial court assessed 18 points for victim injury, or sexual contact, based on the defendant’s having fondled the female victim’s breast during the commission of the attempted sexual battery. This court reversed the sentence holding that “contact” meant the union of the sexual organ of one person with the oral, anal or vaginal opening of another. Thus, this court held, in the absence of physical trauma, victim injury points are appropriately assessed only in cases involving sexual battery, either by penetration or union. Cf. Vural v. State, 717 So. 2d 65 (Fla.App. 3d DCA 1998), rev. denied, 733 So. 2d 591 (1999). In the instant case, neither penetration nor union occurred, so the court incorrectly assessed the victim injury points.
We do not agree with the state that the court erred in sentencing Spioch to time served for two of the twenty-three convictions. The permitted guidelines sentence was 27 years to life, and Spioch’s cumulative sentence was 315 years, which is regarded as a life sentence, see Alvarez v. State, 358 So. 2d 10 (Fla.1978). We do agree, however, that counts for which adjudication is withheld should be included in the scoresheet. Rule 3.701 Florida Rules of Criminal Procedure defines a conviction as “a determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended.” On remand, in re-calculating Spioch’s sentence, the trial court will include 'counts 22 and 23 on the scoresheet.
REVERSED and REMANDED
W. SHARP and PETERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Seagrave v. State, 802 So. 2d 281 (Fla. 2001)…ontact” within section 921.0011(7)(b)2. See Seagrave, 768 So. 2d at 1123. In reaching this conclusion in Kitts, the Fifth District expressly receded from its prior decisions in Reyes v. State, 709 So. 2d 181 (Fla. 5th DCA 1998), and Spioch v. State, 742 So. 2d 817 (Fla. 5th DCA 1999), review granted, 760 So. 2d 948 (Fla.2000). See Kitts, 766 So. 2d at 1069; Seagrave, 768 So. 2d at 1123. In Reyes, the defendant was convicted of attempted sexual battery under sections 777.04 and 794.011(5), Florida Statutes (1…
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Altman v. State, 756 So. 2d 148 (Fla. 4th DCA 2000)…t before us. We have only the bare description of the activity set forth above. We note, however, that it is not yet clear how the courts will ultimately resolve what constitutes sexual contact. The fifth district followed Reyes in Spioch v. State, 742 So. 2d 817 (Fla. 5th DCA 1999), holding that sexual contact points could not be assessed where a defendant was convicted for lewd and lascivious assault as a result of fondling a minor’s penis through the minor’s clothing. Shortly thereafter, the fifth distric…
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Kitts v. State, 766 So. 2d 1067 (Fla. 5th DCA 2000)…the kissing and fondling of the child’s breasts is deemed to be sexual contact it was appropriate for the circuit judge to assess points for that and no error occurred. To the extent they conflict with this decision, we recede from Spioch v. State, 742 So. 2d 817 (Fla. 5th DCA 1999) and Reyes v. State, 709 So. 2d 181 (Fla. 5th DCA 1998). AFFIRMED. ANTOON, C.J., COBB, W. SHARP, HARRIS, GRIFFIN, SAWAYA and PLEUS, JJ., concur. PETERSON, J., dissents, with opinion, in which THOMPSON, J., concurs.…1 / 3
Previewing 3 of 8 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)
- Alphonso Alvarez v. State, 358 So. 2d 10 (Fla. 1978)
- Reyes v. State, 709 So. 2d 181 (Fla. 5th DCA 1998)
- Erol Vural v. State, 717 So. 2d 65 (Fla. 3d DCA 1998)
- Dewayne Jermaine Pinacle v. State, 654 So. 2d 908 (Fla. 1995)
- State v. Erol Vural, 733 So. 2d 591 (Fla. 3d DCA 1999)