GARY S. SOMMERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying the defendant's motion for postconviction relief because two of his claims, regarding illegal sentences due to incorrect victim injury points and ineffective assistance of counsel for failing to object to those errors, were not refuted by the record.
[1] Victim injury points cannot be scored in sexual battery offenses based on penetration alone under the 1988 sentencing guidelines, unless the offenses occurred after May 1…
[2] An erroneous victim injury point assessment on a sentencing scoresheet is not subject to harmless error analysis if the trial court might have imposed a different sentenc…
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Join FLexlaw to unlock all legal intelligenceGary Sommers pleaded guilty to sexual battery and fondling charges and received probation. He later admitted to violating probation multiple times, le…
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PER CURIAM.
Gary Sommers seeks review of the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because two of Sommers’ arguments are not refuted by the record, we reverse. We affirm the trial court’s denial of relief on Sommers’ other claims without discussion.
On September 28, 1995, Sommers pleaded guilty to two counts of lewd sexual battery (counts I and II) and one count of lewd fondling (count III). The guidelines scoresheet reflected a recommended sentence of between twelve and seventeen years, but the court entered a downward departure sentence of five years’ probation pursuant to the plea agreement. The scoresheet included forty points for victim injury for penetration on both sexual battery counts.
On February 17, 1998, Som-mers admitted to a violation of probation, and the court sentenced him to seventeen years suspended and probation reinstated.
On December 1, 1998, the court again found Sommers to be in violation of probation and sentenced him to nine years on count I, five years concurrent on count III, and eight years consecutive on count II.
This court affirmed Sommers’ convictions on appeal. See Sommers v. State, 755 So. 2d 124 (Fla. 2d DCA 2000) (table). Sommers subsequently filed a rule 3.850 motion, which the trial court summarily denied.
Sommers first argues that his sentences are illegal because they were entered pursuant to a scoresheet which incorrectly assessed eighty victim injury-points when there was no evidence of victim injury. In Karchesky v. State, 591 So. 2d 930 (Fla.1992), the supreme court held that under the 1988 sentencing guidelines victim injury points could not be scored in sexual battery offenses based on penetration alone.
However, Karchesky is not applicable to those crimes that occurred after the enactment of chapter 92-135, sections 1, 4, Laws of Florida, which created legislation that allowed for the assessment of victim injury points based on penetration alone. See § 921.001(8), Fla. Stat. (Supp.1992). Chapter 92-135 became effective on May 12, 1992. Ch. 92-135, §§ 1, 2, Laws of Fla.; Art. Ill, § 9, Fla. Const.
Thus, if Sommers committed the sexual batteries before May 12, 1992,1 victim injury points should not have been scored absent other evidence of physical injury or trauma. Because the trial judge might have imposed a different sentence based upon a properly calculated score-sheet, the error is not subject to harmless error analysis. Scott v. State, 638 So. 2d 616, 617 (Fla. 4th DCA 1994). See also Rowan v. State, 791 So. 2d 40, 41-44 (Fla. 2d DCA 2001) (reversing and remanding for a determination of the propriety of victim injury points even though the sentence would have been proper regardless of victim injury points because of possible cell bumps).
Accordingly, we reverse and remand for reconsideration of the motion. On remand, the court should review the trial record for evidence of physical injury or trauma other than penetration which would support the allocation of victim injury points. Id. at 41^14. If the record is devoid of such evidence, the court shall hold an evidentiary hearing on the issue. Id.
Sommers also argues, that counsel was ineffective at his revocation hearings for failing to object to the scoresheet errors. Sommers’ claim of ineffective assistance of counsel for failure to object to scoresheet errors is cognizable in a rule 3.850 motion. Richie v. State, 777 So. 2d 977, 977 (Fla. 2d DCA 1999). As we have already determined, the record does not refute Sommers’ contention that he was sentenced based upon an erroneous score-sheet. Accordingly, this issue requires reversal as well.
Affirmed in part, reversed in part, and remanded.
PARKER, A.C.J., and ALTENBERND and SALCINES, JJ., Concur. . The information states that the crimes took place between April 1, 1992, and December 31, 1992. However, the guidelines score-sheets for the December 1, 1998, and February 17, 1998, violations contain an offense date of April 1, 1992. Thus, the trial court will have to determine the date of the offenses on remand. If the record reflects that the parties have stipulated to April 1, 1992, as the date of the offense, the court is bound by that stipulation. Burnsed v. State, 743 So. 2d 139, 139-40 (Fla. 2d DCA 1999) (requiring court to honor stipulation as to offense date for pur poses of determining whether the defendant could be classified as a sexual predator).
Cases With Similar Vibessemantic neighbors from the corpus
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Matton v. State, 872 So. 2d 308 (Fla. 2d DCA 2004)…challenge the inclusion of victim injury points at a revocation proceeding even when those points were not challenged at the original sentencing or on direct appeal. See Routenberg v. State, 802 So. 2d 361, 361 (Fla. 2d DCA 2001); Sommers v. State, 796 So. 2d 608, 610 (Fla. 2d DCA 2001); Spell v. State, 731 So. 2d 9 (Fla. 2d DCA 1999). The failure to object to scoresheet errors constitutes ineffective assistance of counsel if counsel failed to object to errors of which counsel knew or should have known. Somm…
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Harrelson v. State, 40 So. 3d 57 (Fla. 2d DCA 2010)…ilure to object to scoresheet errors constitutes ineffective assistance of counsel if counsel failed to object to errors of which counsel knew or should have known.” Matton v. State, 872 So. 2d 308, 312 (Fla. 2d DCA 2004); see also Sommers v. State, 796 So. 2d 608, 610 (Fla. 2d DCA 2001); Richie v. State, 777 So. 2d 977, 977 (Fla. 2d DCA 1999). Thus, if, in fact, Harrelson’s counsel at his revocation hearing failed to object to the reinclusion of the previously removed victim injury points, counsel’s performa…1 / 2
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Davis E. McCLENDON v. State, 977 So. 2d 695 (Fla. 1st DCA 2008)…nts for severe victim injury because the victim’s injuries were not severe. A claim of ineffective assistance of counsel for the failure to object to score-sheet errors at sentencing is cognizable in [*697] a rule 3.850 motion. See Sommers v. State, 796 So. 2d 608, 610 (Fla. 2d DCA 2001). A defendant is entitled to relief if counsel failed to object to an error of which counsel knew or should have known and the inclusion of the points affected the sentence. See Richie v. State, 777 So. 2d 977 (Fla. 2d DCA 199…
Previewing 3 of 5 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)
- Richie v. State, 777 So. 2d 977 (Fla. 2d DCA 1999)
- Rowan v. State, 791 So. 2d 40 (Fla. 2d DCA 2001)
- Burnsed v. State, 743 So. 2d 139 (Fla. 2d DCA 1999)
- Johnson v. Dep't of Health & Rehabilitative Servs., 638 So. 2d 616 (Fla. 1st DCA 1994)