TED RODARM, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We affirm appellant’s conviction for commission of an indecent act on a child under 16 years of age on all issues raised, noting that many of the points on appeal were not objected to or preserved at trial. As to the assessment of points on appellant’s scoresheet for penetration, appellant argues that it was error to include those additional points because the jury did not make a finding of penetration. However, we agree with McCloud v. State, 741 So. 2d 512, 514 (Fla. 5th DCA 1999)(en banc) and hold that “the scoring of victim injury points under section 921.0024, Florida Statutes (1997) is a ‘sentencing factor,’ not an element . of the offense.-... Penetration as a sentencing factor plainly does not need to be charged, nor must it be decided by a jury, nor must it be decided beyond a reasonable doubt.” (Emphasis in original)(footnote and citation omitted).
Affirmed.
WARNER, C.J., SHAHOOD and GROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Walker v. State, 758 So. 2d 743 (Fla. 5th DCA 2000)…12, 513 (Fla. 5th DCA 1999). Accordingly, we vacate Walker’s sentence and remand for addition of another 80 victim injury points for sexual penetration and any concomitant change in his sentence the court may lawfully make. See also Rodarm v. State, 756 So. 2d 154 (Fla. 4th DCA 2000) (penetration need not be found by the jury in order for victim injury points to be assessed). AFFIRMED. ANTOON, C.J., and THOMPSON, J., concur.…
Authorities Cited
- McCLOUD v. State, 741 So. 2d 512 (Fla. 5th DCA 1999)