STATE OF FLORIDA, APPELLANT,
v.
LUIS A. MILANES, APPELLEE
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Florida appellate court reversed a sentencing decision that improperly omitted victim injury points from the guidelines scoresheet for a lewd act conviction, holding that such points are properly assessed when the defendant is adjudicated guilty of fondling.
Victim injury points may be assessed in the sentencing guidelines scoresheet when a defendant is adjudicated guilty of committing a lewd act by fondling.
[1] Victim injury points may be assessed in sentencing guidelines calculations when a defendant is adjudicated guilty of committing a lewd act by fondling, overruling prior c…
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Join FLexlaw to unlock all legal intelligenceLuis Milanes entered a plea of nolo contendere to committing a lewd act by fondling a fifteen-year-old victim's penis under Florida Statute § 800.04(1…
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PER CURIAM.
The State appeals the sentence imposed upon Luis Milanes contending that the trial court erred in omitting victim injury points from Mr. Milanes’ sentencing guidelines scoresheet. We agree and therefore remand this matter for resentencing.
Luis Milanes entered a plea of nolo con-tendere to the charge of committing a lewd act by fondling the fifteen-year-old victim’s penis. See § 800.04, Fla. Stat. (1997). In calculating Mr. Milanes’ sentencing guidelines scoresheet, the trial court struck forty points which had been assessed for victim injury citing to Spioch v. State, 742 So. 2d 817 (Fla. 5th DCA 1999), revieto granted, 760 So. 2d 948 (Fla.2000), and Reyes v. State, 709 So. 2d 181 (Fla. 5th DCA 1998). At the time of this ruling, the trial court did not have the benefit of our en banc decision in Kitts v. State, — So. 2d -, 2000 WL 553926 (Fla. 5th DCA May 5, 2000), wherein we ruled that victim injury points can be assessed when the accused is adjudicated guilty of fondling the victim. In so ruling, this court receded from the rulings in Spioch and Reyes to the extent that they were in conflict. Accordingly, we must vacate Mr. Milanes’ sentence and remand this matter for resentencing in accordance with Kitts. This ruling moots the other claim of sentencing error raised by the State.
Conviction AFFIRMED; sentence VACATED; cause REMANDED for resentencing.
THOMPSON, C.J., PETERSON and SAWAYA, JJ., concur.
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Hernandez v. State, 31 So. 3d 873 (Fla. 4th DCA 2010)…764 So. 2d 930 (Fla. 4th DCA 2000) (holding that touching the victim’s chest through her shirt, along with touching her stomach and genital area, involved sexual contact for which victim [*881] injury points were properly scored); State v. Milanes, 762 So. 2d 572, 573 (Fla. 5th DCA 2000) (“victim injury points can be assessed when the accused is adjudicated guilty of fondling the victim”); Mackey v. State, 516 So. 2d 330, 330-31 (Fla. 1st DCA 1987) (affirming victim injury points for sexual contact where def…
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Fredette v. State, 786 So. 2d 27 (Fla. 5th DCA 2001)…included kissing or fondling a woman’s breasts, and was not limited to situations involving sexual battery. Id. at 1069. If sexual contact includes fondling a woman’s breasts, then it also includes touching a child’s vaginal area. State v. Milanes, 762 So. 2d 572, 573 (Fla. 5th DCA 2000)(“victim injury points [*28] can be assessed when the accused is adjudicated guilty of fondling the victim”).2 AFFIRMED. THOMPSON, C.J., HARRIS and SAWAYA, JJ., concur. . § 800.04(1), Fla. Stat. (1997). . Even if one assu…
Authorities Cited
- Reyes v. State, 709 So. 2d 181 (Fla. 5th DCA 1998)
- Spioch v. State, 742 So. 2d 817 (Fla. 5th DCA 1999)