STEVEN LEON DICKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dickson appealed the denial of his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a), claiming the trial court improperly scored victim injury points for sexual contact without ascertainable physical injury. The court reversed and remanded on this claim, holding that victim injury points cannot be scored for sexual crimes without proof of actual physical injury.
The court held that victim injury points cannot be scored for penetration or contact in sexual crimes unless ascertainable physical injury occurred. The court further held that this issue may be raised for the first time in a rule 3.800(a) motion and that the error cannot be considered harmless as it decreases the recommended sentences.
[1] Victim injury points in sexual offense sentencing prior to the effective date of section 921.001(8), Florida Statutes (Supp.1992), could not be scored for penetration or…
[2] A claim that victim injury points were improperly scored in a criminal sentence may be raised for the first time in a motion to correct illegal sentence.
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“Prior to the effective date of section 921.001(8), Florida Statutes (Supp.1992), victim injury points could not be scored for penetration or contact in sexual crimes unless ascertainable physical injury occurred.”
Establishes the legal standard that victim injury points require ascertainable physical injury in sexual crimes
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDickson was sentenced and subsequently filed a motion to correct his illegal sentence raising two claims regarding his sentences. In the second claim,…
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WHATLEY, Judge.
Steven Leon Dickson timely appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In the motion, Dickson raised two claims regarding his sentences. We affirm without comment the trial court’s ruling on the first claim, but we reverse and remand on the second claim in which Dickson alleged that the trial court improperly scored victim injury points for sexual contact when no physical injury or trauma occurred. The trial court denied this claim, stating that Dickson was unable to establish prejudice. The trial court is incorrect.
Prior to the effective date of section 921.001(8), Florida Statutes (Supp.1992), victim injury points could not be scored for penetration or contact in sexual crimes unless ascertainable physical injury occurred. See Karchesky v. State, 591 So. 2d 930 (Fla.1992); Lohret v. State, 687 So. 2d 882 (Fla. 2d DCA 1997). Removing these victim injury points decreases four of Dickson’s recommended sentences by two cells. This error cannot be considered harmless. See Schloesser v. State, 697 So. 2d 942 (Fla. 2d DCA 1997).
The trial court made a point to note that Dickson made no contemporaneous objection to the victim injury points and did not raise the issue on appeal. However, this issue may be raised for the first time in a rule 3.800(a) motion. See Rowan v. State, 791 So. 2d 40 (Fla. 2d DCA 2001).
We reverse and remand for further proceedings. On remand, the trial court should follow the procedures set out in Rowan, 791 So. 2d at 43-^44. The trial court should review the record to determine whether it contains any factual basis for scoring victim injury points. If the record does contain proof of injury, the trial court may again deny relief and attach those portions of the record showing the support for victim injury points. If the record does not contain proof of injury, the trial court should conduct a limited evidentiary hearing to determine whether the victims suffered any actual physical injury. If, after an evidentiary hearing,1 the State cannot prove actual physical injury to the victims, Dickson must be resen-tenced under a corrected scoresheet.
Affirmed in part, reversed in part, and remanded.
DAVIS and COVINGTON, JJ., Concur. . This is a "very narrow exception to the general rule that evidentiary hearings are not permitted in addressing motions filed pursuant to rule 3.800." Rowan v. State, 791 So. 2d 40, 43 (Fla. 2d DCA 2001).
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Chapman v. State, 885 So. 2d 475 (Fla. 5th DCA 2004)…points is cognizable under rule 3.800(a) as long as the error is ascertainable from the face of the record. See, e.g., Long v. State, 853 So. 2d 511 (Fla. 4th DCA [*477] 2003); Reynolds v. State, 827 So. 2d 356 (Fla. 1st DCA 2002); Dickson v. State, 826 So. 2d 412 (Fla. 2d DCA 2002). Resolution of Chapman’s complaint should not entail more than the examination of the indictment, judgment, sentence, stipulation for settlement and scoresheet. We do not believe that an evidentiary determination is necessary to r…
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Rubin Long v. State, 853 So. 2d 511 (Fla. 4th DCA 2003)
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Jere Andre Walker v. State, 940 So. 2d 1215 (Fla. 2d DCA 2006)…sly included victim injury points when there was no evidence at trial suggesting any physical injury or trauma to the victim. This claim can also be determined from the face of the record, and is cognizable under rule 3.800(a). See Dickson v. State, 826 So. 2d 412 (Fla. 2d DCA 2002). Because Walker’s motion presented these two facially sufficient claims, cognizable under rule 3.800(a), the trial court must address them. See Carroll v. State, 914 So. 2d 1014 (Fla. 2d DCA 2005). Therefore, we reverse the order…
Authorities Cited
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Schloesser v. State, 697 So. 2d 942 (Fla. 2d DCA 1997)
- Rowan v. State, 791 So. 2d 40 (Fla. 2d DCA 2001)
- Lohret v. State, 687 So. 2d 882 (Fla. 2d DCA 1997)