WILLIAM C. ROUTENBURG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William C. Routenberg appeals the denial of post-conviction relief motions following his 1990 guilty plea to capital sexual battery. The court affirmed the denial of his 3.850 motion but reversed the denial of his 3.800(a) motion challenging forty victim injury points assessed without evidence of physical injury, holding that Karchesky issues can be raised for the first time in such motions.
A defendant is entitled to raise a Karchesky issue in a 3.800(a) motion even after probation violations, and the case must be reversed for an evidentiary hearing to determine whether the victim sustained any physical injury. If the State cannot prove actual physical injury, the defendant must be resentenced under a corrected scoresheet.
[1] A motion to correct an illegal sentence under rule 3.800(a) may be used to raise an error in the original scoresheet, even after resentencing following a violation of pro…
[2] Victim injury points cannot be assessed for penetration without ascertainable physical injury.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“an appeal from resentencing following violation of probation is not the proper time to assert an error in the original scoresheet”
The trial court's cited rationale from Fitzhugh, which the appellate court rejected.
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Join FLexlaw to unlock all legal intelligenceRoutenberg pleaded guilty to capital sexual battery in 1990 and received a six-year prison sentence followed by ten years of probation. He later viola…
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SALCINES, Judge.
William C. Routenberg timely appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 and his motion to correct illegal sentence filed pursuant to rule 3.800(a). We affirm without comment the denial of his 3.850 motion and reverse the denial of his 3.800(a) motion.
Routenberg pleaded guilty to capital sexual battery in 1990 and received a six-year prison sentence followed by ten years of probation. He later violated probation.1 After sentencing on that violation, he filed a 3.800(a) motion in which he claimed that he was assessed forty victim injury points in violation of Karchesky v. State, 591 So. 2d 930 (Fla.1992) (holding that victim injury points could not be assessed for penetration without ascertainable physical injury).
The trial court conceded that Karehesky applies to Routenberg and that nothing in the record evidenced any physical injury to the victim, but the trial court denied the claim, citing Fitzhugh v. State, 698 So. 2d 571, 573 (Fla. 1st DCA 1997), which held that “an appeal from resentencing following violation of probation is not the proper time to assert an error in the original scoresheet.” This court has declined to follow Fitzhugh. See Spell v. State, 731 So. 2d 9, 10 (Fla. 2d DCA 1999); Bogan v. State, 725 So. 2d 1216, 1217 (Fla. 2d DCA 1999). In Rowan v. State, 791 So. 2d 40 (Fla. 2d DCA 2001), this court held that a Karehesky issue can be raised for the first time in a 3.800(a) motion, even after violations of probation. Thus, Routenberg is entitled to raise the issue now. Since the trial court has already acknowledged that the record cannot refute Routenberg’s claims, this case must be reversed for an evidentiary hearing to determine if the victim sustained any physical injury.2 See Rowan, 791 So. 2d at 43-44. If the State cannot prove actual physical injury to the victim, Routenberg must be resentenced under a corrected score-sheet. Id. at 44.
Affirmed in part, reversed in part, and remanded.
BLUE, C.J., and DAVIS, J., Concur. . Routenberg's sentence on the violation of probation was twice overturned on appeal. Routenberg v. State, 677 So. 2d 1325 (Fla. 2d DCA 1996); Routenberg v. State, 721 So. 2d 1187 (Fla. 2d DCA 1998).
. Resolution of the Karchesky issue allows a very narrow exception to the general rule that evidentiary hearings are not permitted in addressing motions filed pursuant to rule 3.800. See Rowan v. State, 791 So. 2d 40, 43 (Fla. 2d DCA 2001) (citing Morris v. State, 605 So. 2d 511, 514 (Fla. 2d DCA 1992)). Because the original sentence in the instant case was imposed before Karchesky was decided, we do not reach the issue of whether the Rowan exception applies when the original sentence was imposed after the Karchesky decision.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Tasker v. State, 48 So. 3d 798 (Fla. 2010)…ng that defendant could challenge assessment of victim injury points in appeal of revocation of probation despite the fact that defendant did not raise the issue at the original sentencing hearing or in a prior appeal); see also Routenberg v. State, 802 So. 2d 361 (Fla. 2d DCA 2001) (holding that a claim that victim injury points for penetration were incorrectly assessed on scoresheet could be raised in a rule 3.800(a) motion even after violation of probation); and Wright v. State, 707 So. 2d 385 (Fla. 2d DCA…
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Matton v. State, 872 So. 2d 308 (Fla. 2d DCA 2004)…ge them. However, this court has held that a defendant may 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…
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Tasker v. State, 12 So. 3d 889 (Fla. 1st DCA 2009)…ng that defendant could challenge assessment of victim injury points in appeal of revocation of probation despite the fact that defendant did not raise the issue at the original sentencing hearing or in a prior appeal); see also Routenberg v. State, 802 So. 2d 361 (Fla. 2d DCA 2001)(holding that a claim that victim injury points for penetration were incor [*891] rectly assessed on scoresheet could be raised in a rule 3.800(a) motion even after violation of probation); and Wright v. State, 707 So. 2d 385 (Fla.…
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)
- Silas v. Morris, 605 So. 2d 511 (Fla. 2d DCA 1992)
- Fitzhugh v. State, 698 So. 2d 571 (Fla. 1st DCA 1997)
- Spell v. State, 731 So. 2d 9 (Fla. 2d DCA 1999)
- Rowan v. State, 791 So. 2d 40 (Fla. 2d DCA 2001)
- Stephens v. State, 677 So. 2d 1325 (Fla. 2d DCA 1996)
- Routenberg v. State, 677 So. 2d 1325 (Fla. 2d DCA 1996)
- Bogan v. State, 725 So. 2d 1216 (Fla. 2d DCA 1999)
- Routenberg v. State, 721 So. 2d 1187 (Fla. 2d DCA 1998)