EDWARD FREDERICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edward Frederick appeals his conviction for sexual battery on a child and his sentence. The court affirms the conviction but reverses the sentence, holding that the trial court improperly scored penetration points without establishing victim injury under the applicable law, and requiring resentencing to correct sentencing sheet ambiguities and conform the written sentence to the oral pronouncement.
The court reverses the sentence and remands for resentencing. The trial court must hold an evidentiary hearing to determine whether victim injury points should be awarded under the applicable law (Karchesky v. State, which governed part of the offense period). The written sentence must be corrected to conform to the oral pronouncement of life with possibility of parole after 25 years. The trial court must clarify and impose two separate sentences for counts one and two. The conviction is affirmed in all other aspects.
[1] A statutory amendment requiring points for penetration absent injury applies only to offenses committed on or after its effective date.
[2] Under the rule of lenity, prior case law allowing victim injury points only where actual injury was shown applies to offenses committed during the period when that case l…
Previewing 2 of 5 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“Statutory amendment to section 921.011 specifically required points for penetration to be scored absent injury.”
Establishes the key statutory change that applies to part of the offense period and governs the penetration points issue.
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Join FLexlaw to unlock all legal intelligenceFrederick was convicted of sexual battery on a person under age 12 for conduct occurring between December 31, 1991 and September 27, 1995. The trial c…
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PER CURIAM.
We deny the Defendant’s Motion for Rehearing and Certification. We substitute the following opinion for the original.
We reverse the trial court’s sentence and remand for further sentencing. We affirm the conviction in all other aspects.
Statutory amendment to section 921.011 specifically required points for penetration to be scored absent injury. That statute was effective April 8, 1992. Prior to that amendment, the issue was governed by Karchesky v. State, which allowed victim injury points only where actual injury was shown. 591 So. 2d 930 (Fla.1992).
The Defendant was convicted of sexual battery on a person under the age of 12 “on or between December 31, 1991 and September 27, 1995.” The trial court added points for penetration on the Defen dant’s scoresheet, but there appeared to be no finding of actual injury.
Since there were a few months during the offense time frame where Karchesky would apply, the rule of lenity requires us to apply Karchesky. Maitre v. State, 770 So. 2d 309 (Fla. 4th DCA 2000). We reverse and remand. for an evidentiary hearing to determine whether victim injury points should be added under Karche-sky.
The Defendant also appeals his sentence to life without parole. The trial court’s oral pronouncement in sentencing was .life with the possibility of parole after 25 years; however, the written sentence did not reflect the possibility of parole. We remand for the trial court to conform its written sentence to its oral sentence.
The Defendant also appeals what he claims to be one general sentence for counts one and two. .The trial court’s intention was unclear in the notations on the sentencing sheets as to whether there was one general sentence or two separate concurrent sentences. Therefore, we remand to the trial court for clarification and imposition of two separate sentences.
In conclusion, we reverse for an evidentiary proceeding on the penetration points, adjustment of the sentence to conform with the oral pronouncement, and imposition-of two separate sentences for counts one and two. We affirm the conviction in all other aspects.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR SENTENCING.
GUNTHER, TAYLOR, JJ., and DELL, JOHN W., Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Maitre v. State, 770 So. 2d 309 (Fla. 4th DCA 2000)