KENNETH WALKER, APPELLANT/CROSS-APPELLEE,
v.
STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT
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Walker's convictions for sexual battery on a child and contributing to delinquency of a minor were affirmed, but his sentence was vacated and remanded because the trial court failed to add victim injury points for sexual penetration under the corrected McCloud standard.
A defendant is not constitutionally entitled to have a jury make the predicate factual determination of penetration for purposes of scoring victim injury points on the sentencing scoresheet.
[1] A defendant is not constitutionally entitled to have a jury determine the fact of sexual penetration as a predicate for scoring victim injury points on the sentencing sco…
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Join FLexlaw to unlock all legal intelligenceKenneth Walker was convicted of two counts of sexual battery on a child by a person in familial or custodial authority and one count of contributing t…
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GRIFFIN, J.
Kenneth J. Walker [‘Walker”] appeals his judgment and sentence on two counts of sexual battery on a child by a person in familial or custodial authority and one count of contributing to the delinquency or dependency of a minor. We find no merit to the issues raised by appellant and affirm the convictions. It does appear the state’s cross-appeal has merit due to the lower court’s reliance on our initial opinions in McCloud v. State, 741 So. 2d 512 (Fla. 5th DCA 1999), holding that a court could not score penetration points on the sentencing scoresheet unless the jury made a special finding of penetration. This court withdrew that opinion and replaced it with another opinion holding that a defendant is not constitutionally entitled to have a jury make the predicate factual determination of penetration for purposes of scoring victim injury points. McCloud v. State, 741 So. 2d 512, 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.
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Citator
Cited By
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Walker v. State, 790 So. 2d 1200 (Fla. 5th DCA 2001)…PLEUS, J. Kenneth Walker challenges the sentence he received from the trial court on remand from his earlier appeal, Walker v. State, 758 So. 2d 743 (Fla. 5th DCA 2000). In Walker I, we agreed with the state’s argument on cross-appeal, that based on our decision in McCloud v. State, 741 So. 2d 512 (Fla. 5th DCA 1999), Walker’s sentencing guideline scoresheet should have included [*1201] an addit…
Authorities Cited
- McCLOUD v. State, 741 So. 2d 512 (Fla. 5th DCA 1999)
- Rodarm v. State, 756 So. 2d 154 (Fla. 4th DCA 2000)