WALTER WILLIAM FREDETTE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that touching a child's vaginal area constitutes sexual contact for sentencing purposes.
Defendant was convicted of a lewd act upon a child and sentenced. In calculating his scoresheet, the court assessed points for victim injury based on …
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PER CURIAM.
Walter William Fredette appeals his sentence, contending the court erred in assessing victim injury points against him. We affirm.
Fredette was charged by information with committing a lewd act upon a child
. Fredette was adjudged guilty by a jury, convicted and sentenced to 51 months in prison, to be followed by ten months of probation with sex offender conditions. In calculating his scoresheet, Fredette was assigned 40 points for victim injury — “sex contact.”. He objected below, to that assessment.
On appeal, Fredette submits that his touching the victim’s vaginal area is not sexual contact within the meaning of Section 921.0011(7)(b)2., Florida Statutes (1997), thus the forty points should not have been assessed on his scoresheet. The legal question as to whether this conduct was sexual contact for the purposes of scoring is controlled by Kitts v. State, 766 So. 2d 1067 (Fla. 5th DCA 2000)(en banc). There, this court held that sexual contact within the meaning of this section 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 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 assumed arguendo that the sexual contact was over her clothes, an argument Fredette makes, that would not change this outcome. See Louis v. State, 764 So. 2d 930, 931-32 (Fla. 4th DCA 2000).
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Citator
Cited By
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Hernandez v. State, 31 So. 3d 873 (Fla. 4th DCA 2010)…DCA 2003) (holding that appellant’s act of lying on top of the victim with his clothed genitals pressed against hers and “humping” her constituted sexual contact for which victim injury points were appropriately scored); see also Fredette v. State, 786 So. 2d 27, 28 n. 2 (Fla. 5th DCA 2001) (holding that sexual contact includes touching a child’s vaginal area, and opined that this would constitute sexual contact even if the touching was over the child’s clothing); Louis v. State, 764 So. 2d 930 (Fla. 4th DC…
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Altman v. State, 852 So. 2d 870 (Fla. 4th DCA 2003)…ther’s or (2) kissing and inserting one’s tongue into another’s mouth. Our research reveals that courts have upheld sexual contact victim injury points in instances where the offender touched clothed sexual parts of the victim. In Fredette v. State, 786 So. 2d 27 (Fla. 5th DCA 2001), the fifth district held that sexual contact includes touching a child’s vaginal area, and opined that this would constitute sexual contact even if the touching was over the child’s clothing. Id. at 28 n. 2. In so holding, the co…
Authorities Cited
- Kitts v. State, 766 So. 2d 1067 (Fla. 5th DCA 2000)
- Davis v. State, 764 So. 2d 930 (Fla. 1st DCA 2000)
- Milvoixjm Louis v. State, 764 So. 2d 930 (Fla. 4th DCA 2000)
- T.J. Cunningham v. M.D. Koon, 762 So. 2d 572 (Fla. 4th DCA 2000)
- State v. Milanes, 762 So. 2d 572 (Fla. 5th DCA 2000)