Blair v. State, 4D13–4375.

• Decision Date: 05 October 2016
• Docket Number: No. 4D13–4375.,4D13–4375.
• Citation: 201 So.3d 800
• Parties: Glenn BLAIR, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

201 So.3d 800

Glenn BLAIR, Appellant,

v.STATE of Florida, Appellee.

No. 4D13–4375.

District Court of Appeal of Florida, Fourth District.

Oct. 5, 2016.

Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

The issue presented in this appeal is whether the trial court erred in assessing points for “penetration” in calculating appellant's sentencing guideline scoresheet, after revoking probation. In this case appellant pled to charges that alleged, in the alternative, elements of union or penetration, and the nature of the charges did not require proof of penetration. We find the inclusion of points for penetration in this case was improper, and we reverse and remand to the trial court for further proceedings. Those further proceedings may also include a determination as to whether laches applies.

The state charged appellant with four counts of sexual battery on a child, one count of lewd or lascivious act in the presence of a child, and three counts of indecent assault. The sexual battery counts each alleged that appellant “caus [ed] his penis to penetrate or unite with the anus of [C.B.] contrary to F.S. 794.011(2).” The probable cause affidavit alleged that the victim told police that appellant attempted to insert his penis inside the victim's buttocks but was unsuccessful.

Appellant pled no contest to four counts of sexual battery of a child by a person in position of familial or custodial authority, contrary to section 794.011(8)(b) ; one count of lewd act in the presence of a child; and three counts of incident assault on a child under sixteen.

Section 794.011(8)(b), Florida Statutes (1994), provided that

a person who is in a position of familial or custodial authority to a person less than 18 years of age and who ... [e]ngages in any act with that person while the person is 12 years of age or older but less than 18 years of age which constitutes sexual battery under paragraph (1)(h) commits a felony of the first degree....

“Sexual battery” was defined as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object ....” § 794.011(1)(h), Fla. Stat. (1994). In calculating the sentencing guidelines scoresheet, sections 921.0011(7) and 921.0014(1), Florida Statutes (1994), required the court to assess 40 points for each offense of sex penetration, and 18 points for each offense of sex contact.

The trial court sentenced appellant to seventeen years in prison followed by ten years of probation for the four counts of sexual battery and fifteen years in prison on the remaining counts, with all sentences to run concurrently. Appellant was released from prison in December 2005 and commenced his probationary period for the four sexual battery convictions. In January 2013, the state filed an affidavit of violation of probation, alleging that appellant violated a condition of his probation by having contact with a child under the age of sixteen. After a hearing, the trial court revoked appellant's probation.

A 1994 sentencing guidelines scoresheet prepared for purposes of resentencing assessed 160 total victim injury points for penetration, representing 40 points for each of the four sexual battery offenses. The scoresheet reflected a minimum sentence of 212.85 months and a maximum of 354.75 months. The trial court sentenced appellant to the maximum.

During the pendency of this appeal, appellant filed two motions to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). In the motions, appellant argued that the trial court erred in assessing 160 penetration points against him. Appellant argued that he pled based on an information that charged him with committing the sexual batteries by penetration or union. Appellant further argued that assessment of the penetration points violated Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The trial court denied the motions.

A claim of scoresheet error may be raised in a rule 3.800(b)(2) motion during appeal from a revocation of probation. Tasker v. State, 48 So.3d 798, 805 (Fla.2010). Whether the trial court properly assessed victim injury points on appellant's scoresheet is a question of law reviewed de novo. See Somps v. State, 183 So.3d 1090, 1092 (Fla. 4th DCA 2015). A scoresheet error is harmless only if the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet. Brooks v. State, 969 So.2d 238, 241 (Fla.2007).

In Alleyne, the Supreme Court held that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” 133 S.Ct. at 2155. In the instant case, no mandatory minimum sentence applied. Therefore, Alleyne is inapplicable.

In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, 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.” 530 U.S. at 490, 120 S.Ct. 2348. In Blakely, the Court clarified “that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis 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. The trial court assessed 160 points for victim penetration. This court found the sentencing enhancement in violation of Blakely, and reversed and remanded for resentencing without the assessment of the victim penetration points.

The Fifth District extended Chatman 's holding to the context of sentencing following a plea. Mann v. State, 974 So.2d 552 (Fla. 5th DCA 2008). In Mann, the defendant pled guilty to three counts of lewd or lascivious battery and one count of lewd or lascivious molestation. The defendant filed a motion to correct sentence, alleging a scoresheet error in assessing victim injury points against him for penetration to which he did not plead. The Fifth District agreed that it was error to assess victim injury points for the charges that alleged union or, in the alternative, penetration or union. In reaching this decision, the court relied on Chatman and found that although Chatman arose in a jury trial, the same principle applied in a plea case. As such, the court reversed and remanded for resentencing based on a corrected scoresheet.

Relying on Mann, the...