PHILLIP KISER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Phillip Kiser appealed his sentence imposed upon revocation of community control for attempted sexual battery, challenging the inclusion of victim injury points on his sentencing scoresheet. The court reversed and remanded because the state failed to establish physical injury to support the forty victim injury points awarded, as required under Karchesky v. State.
The court held that victim injury points cannot be assessed without proof of actual physical injury. Because the state did not establish physical injury at Kiser's plea hearing, the trial court erred in including forty victim injury points on the scoresheet, and the case must be remanded for the state to prove physical injury at an evidentiary hearing or Kiser must be resentenced without those points.
[1] Victim injury points cannot be assessed for penetration without actual physical injury to the victim.
[2] A challenge to the improper scoring of victim injury points can be raised even after a defendant pleads guilty and violates probation.
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Join FLexlaw to unlock all legal intelligence“victim injury points could not be assessed for penetration without an actual physical injury”
Statement of the Karchesky holding that governs when victim injury points can be included in sentencing calculations
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Join FLexlaw to unlock all legal intelligenceKiser committed an offense in 1985 and entered a no contest plea to attempted sexual battery in 1987, receiving a ten-year prison sentence followed by…
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THREADGILL, EDWARD F., Senior Judge.
Phillip Kiser appeals from his sentence imposed upon revocation of community control for attempted sexual battery. We reverse and remand to the trial court because Kiser’s scoresheet improperly included victim injury points.
Based on an offense occurring in 1985, Kiser entered a no contest plea to attempted sexual battery and was sentenced in 1987 to ten years in prison to be followed by ten years of probation. Kiser was later placed on community control; however, on May 24, 2000, the trial court revoked his community control and sentenced him to twenty-seven years in prison. Kiser appealed and filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).
The trial court granted the motion in part and imposed a new sentence of twenty-two years’ imprisonment. Kiser appealed and later filed a second motion pursuant to rule 3.800(b)(2). In this motion, counsel argued for the first time that victim injury points were improperly scored under Karchesky v. State, 591 So. 2d 930 (Fla.1992) (holding that victim injury points could not be assessed for penetration without an actual physical injury).1 The trial court denied the motion.
This court recognized in Routenburg v. State, 802 So. 2d 361 (Fla. 2d DCA 2001), that a Karchesky issue can be raised even after a defendant pleads guilty and violates probation. Similar to Routenburg, Kiser challenged the forty victim injury points on his scoresheet for penetration or slight injury after his community control was revoked and he was resentenced. At Kiser’s plea hearing, the prosecutor asserted that the factual basis was digital penetration, but the prosecutor did not state that physical injury occurred. Because the State did not establish physical injury to the victim, the trial court erred in denying Kiser’s second motion to correct sentence.
Therefore, we reverse the trial court’s order and remand to the trial court for further proceedings. On remand, the State must establish physical injury at an evidentiary hearing to support the forty points for victim injury. See Routenburg, 802 So. 2d 361. If the State does not establish physical injury, then Kiser must be resentenced without the victim injury points on his scoresheet. Id.
Reversed and remanded.
DAVIS and SILBERMAN, JJ., concur. . The legislature abrogated the Karchesky holding for crimes committed on or after April 8, 1992. See Schloesser v. State, 697 So. 2d 942 (Fla. 2d DCA 1997).
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Citator
Cited By
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Charvester Anthony v. State, 854 So. 2d 744 (Fla. 2d DCA 2003)…court again revokes Anthony’s community control, then the State must establish sexual penetration in order for those points to be included on the sentencing scoresheet; otherwise, points shall only be included for sexual contact. See Kiser v. State, 810 So. 2d 1038, 1039 (Fla. 2d DCA 2002). Affirmed in part, reversed in part, and remanded. CASANUEVA and CANADY, JJ., Concur.…
Authorities Cited
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Schloesser v. State, 697 So. 2d 942 (Fla. 2d DCA 1997)
- Routenburg v. State, 802 So. 2d 361 (Fla. 2d DCA 2001)