WILLARD CHATMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A sentence enhancement based on victim penetration violates Blakely if the jury did not specifically find penetration beyond a reasonable doubt.
[1] A sentencing enhancement based on a fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable do…
[2] A jury's general verdict of guilt does not permit a sentencing court to impose enhancements based on facts not specifically found by the jury.
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Join FLexlaw to unlock all legal intelligenceDefendant was convicted of sexual offenses involving a minor. The trial judge assessed sentencing enhancement points for 'victim penetration' without …
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FARMER, J.
Without discussion, we affirm defendant’s multiple convictions for sexual offenses involving a minor. We pass on to the sentencing issue.
The verdict was general as to all counts, without any specific findings as to facts leading to sentencing enhancements. Nevertheless, at sentencing the trial judge assessed 160 additional points for “victim penetration.” As a result of the assessment of these additional points, defendant’s total sentencing score exceeded 363, a score that would otherwise allow an enhanced sentence of life, which was the actual sentence imposed. On appeal defendant argues a Blakely1 violation. We agree.
Blakely requires “ ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” 542 U.S. at 301, 124 S.Ct. 2531 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). The verdict forms in this case did not require the jury to make a specific finding of penetration. Instead, guilt was determined only “as charged in the information.” The information charged “penetration” or “union.” Hence the verdict form did not give the jury the opportunity to specify which alternative was the basis for the finding of guilty. In fact the nature of the actual charge, sexual activity with a minor, did not even require the State to prove penetration for a finding of guilt. As in Coggins v. State, 921 So. 2d 758 (Fla. 1st DCA 2006), we find the sentencing enhancement in violation of Blakely, requiring a resentencing without the assessment of the victim penetration points. See also Whalen v. State, 895 So. 2d 1222 (Fla. 2d DCA 2005) (sentence could not be enhanced unless factor supporting enhancement was shown in specific finding by jury; penetration points pre- eluded where jury did not make specific finding of penetration).
Convictions Affirmed; Sentence Reversed; Remanded for Resentencing.
SHAHOOD, J, and LEWIS, TERRY P., Associate Judge, concur. . Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
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Citator
Cited By
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Mann v. State, 974 So. 2d 552 (Fla. 5th DCA 2008)…on or union. The defendant’s score-sheet scored victim injury points for penetration as to all four counts. As to the three counts which did not specifically allege penetration, this was error. As the [*554] fourth district held in Chatman v. State, 943 So. 2d 327 (Fla. 4th DCA 2006), when the information charges penetration or union, the assessment of victim penetration points is error absent a specific finding that penetration occurred. Although Chatman arose in a jury trial context, the same principle appl…
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Blair v. State, 201 So. 3d 800 (Fla. 4th DCA 2016)…of the facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303, 124 S.Ct. 2531. This court has found.that the assessment of points for penetration, in the absence of a jury finding, is reversible error. Chatman v. State, 943 So. 2d 327 (Fla. 4th DCA 2006). In Chatman, the information charged the defendant with sexual activity with a minor involving union or penetration. The jury found appellant guilty as charged in the information and did not make a specific finding of penetration…
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Lakey v. State, 172 So. 3d 989 (Fla. 5th DCA 2015)…v. State, 974 So. 2d 552, 553-54 (Fla. 5th DCA 2008) (“[W]hen the information charges penetration or union, the assessment of victim penetration points is error absent a specific finding that penetration occurred.” (citing Chat- [*990] man v. State, 943 So. 2d 327, 328-29 (Fla. 4th DCA 2006))). Upon remand, the State is directed to file a corrected scoresheet. Accordingly, we reverse and remand to the trial court for resentencing on Counts I and III with a corrected scoresheet. AFFIRMED in part; REVERSED in…
Authorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004)
- Whalen v. State, 895 So. 2d 1222 (Fla. 2d DCA 2005)
- Coggins v. State, 921 So. 2d 758 (Fla. 1st DCA 2006)