O'Bright v. State, BL-168

Decision Date20 March 1987
Docket NumberNo. BL-168,BL-168
Citation508 So.2d 385,12 Fla. L. Weekly 807
Parties12 Fla. L. Weekly 807 Rudy Vallee O'BRIGHT, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Michael E. Allen, Public Defender and Ann Cocheu, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Patricia Conners, Asst. Atty. Gen., Tallahassee, for appellee.

SHIVERS, Judge.

Defendant O'Bright appeals his sentence after a guilty plea. The State and O'Bright negotiated his plea of guilty to lewd assault (Count II) and in return the State dismissed a charge of sexual battery (Count I).

Count I, which was nolle prossed, charged that the defendant committed a sexual battery upon a child less than 12 years of age "by vaginal penetration, contrary to Florida Statute 794.011."

Count II charged that O'Bright did unlawfully handle, fondle, or make an assault upon a named child under the age of 16 years "in a lewd, lascivious, or indecent manner, by fondling her genitals and having her fondle his genitals, without committing the crime of sexual battery, contrary to Florida Statute 800.04(1)."

Florida Statute 794.011, in pertinent part, reads:

(1) Definitions:

................................................................................

* * *

(h) The term "sexual battery" means 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; however, sexual battery does not include an act done for a bona fide medical purpose.

Florida Statute 800.04(1) in pertinent part reads:

Any person who:

(1) Handles, fondles or makes an assault upon any child under the age of 16 years in a lewd, lascivious, or indecent manner;

................................................................................

* * *

without committing the crime of sexual battery is guilty of a felony of the second degree....

On the sentencing guidelines scoresheet defendant was assessed 158 points for a second-degree felony and 40 points for "penetration or slight injury," making a total of 198 points, calling for a presumptive sentence of 30 months to 3 1/2 years incarceration. The scoresheet provides for the following choice of points relating to victim injury (physical):

                V. Victim injury (physical)
                No contact                     0
                Contact but no penetration    20
                Penetration or slight injury  40
                Death or serious injury       85
                

O'Bright contends that at most "contact but no penetration" should be assessed. The point total would then be 178, calling for a presumptive sentence of community control or 12-30 months incarceration. The trial court disagreed, accepted the 198 points, and sentenced O'Bright to 3 1/2 years in prison. In addition, the court gave four reasons for departure from the guidelines stating "Well, I want that made of record, and I place it in the record in writing, in case the district court doesn't agree with the computation of points. In any event, I think those are clear and convincing reasons for going beyond the guidelines at either level.

1. The tender age of the victim at the time of this offense, that being eight (8) years of age.

2. The effect that the despicable nature of the offense had on this victim which required the victim to be removed from her home and placed in protective custody.

3. The crime involved the gross abuse of the familial-custodial relationship, that being the Defendant is the natural father of the victim.

4. The unlawful action continued over an extended period of time (approximately 8 months)."

We conclude that the appellant should not have been scored 40 points for "penetration or slight injury" rather than 20 points for "contact but no penetration." He pled guilty to lewd assault which contains within its definition the words "without committing the crime of sexual battery." Points cannot be validly assessed for sexual battery when sexual battery is specifically excluded from the definition of the crime to which the defendant pled guilty. (Furthermore, the sexual battery charge was nolle prossed.)

Although some of the reasons given for departure from the guidelines are valid, Reason No. 1 is invalid because the victim's age is an inherent component of the crime charged and cannot be used as a basis for departure. State v. Mischler, 488 So.2d 523 (Fla.1986).

With the guidelines scoring reduced and Reason No. 1 for departure eliminated, we reverse the sentence and remand the case for resentencing.

We certify to the supreme court the following question of great public importance:

WHETHER, IN CALCULATING THE SENTENCING GUIDELINES SCORESHEET FOR CATEGORY 2 SEXUAL OFFENSES, POINTS MAY BE ASSESSED FOR PENETRATION, UNDER VICTIM INJURY, IN SENTENCING FOR A CONVICTION UNDER 800.04(1)?

REVERSED and REMANDED.

ERVIN, J., concurs.

ZEHMER, J., dissents, with written opinion.

ZEHMER, Judge, dissenting.

Because I find no error in the trial court's inclusion of forty points for "penetration or slight injury" in sentencing appellant upon his plea of guilty to lewd and lascivious assault in violation of section 800.04, Florida Statutes (1985), I would affirm.

Charged by indictment in one count with committing sexual battery on a child under twelve years "by vaginal penetration, contrary to Florida Statute 794.011," and in a second count with assault upon a child under sixteen years "in a lewd, lascivious, or indecent manner, by fondling her genitals and having her fondle his genitals, without committing the crime of sexual battery, contrary to Florida Statute 800.04(1)," O'Bright pled guilty to the lewd assault charge in exchange for the state's dismissal of the sexual battery charge. At sentencing the guidelines scoresheet approved by the trial court reflected that O'Bright's point total was 198, calling for a presumptive sentence of thirty months to three and one-half years imprisonment, and the trial court sentenced appellant to three and one-half years in state prison. Alternatively, the trial judge, being ever mindful of the uncertainty inherent in guidelines sentencing and anticipating the possibility that this calculation might be held incorrect on appeal, listed several reasons for departure from the lower guidelines cell in justification of the sentence imposed, as set forth in the majority opinion.

O'Bright objects to this point total, stating it was error to assess 40 points for "penetration or slight injury" under victim injury because the sexual battery charge, which includes penetration as an essential element, was dropped and, further, that since he pled guilty to and was convicted of lewd assault only (an offense that does not include penetration as an essential element), the statutory language "without committing the crime of sexual battery" in section 800.04 operates to specifically exclude conduct that amounts to sexual battery in violation of section 794.011. Thus, he argues, at most 20 points should be assessed for "contact but no penetration" under victim injury, which results in a point total of 178 and calls for a presumptive sentence of community control or twelve to thirty months' incarceration. 1 The state contends, on the other hand, that penetration is merely a degree of handling or fondling and is not necessarily excluded from consideration in a conviction of that offense.

The scoresheet for sexual offenses lists four categories of victim injury: no contact (0 points), contact but no penetration (20 points), penetration or slight injury (40 points), and death or serious injury (85 points). Rule 3.701(d)(7), Florida Rules of Criminal Procedure, requires that "[v]ictim injury shall be scored if it is an element of any offenses at conviction." Ordinarily, it is proper to assess points for any of the categories of victim injury on the guidelines scoresheet so long as "the defendant is convicted of an offense (scored as either primary or additional offense) which includes physical impact or contact" [see committee note (d)(7) to the December 19, 1985, amendment to rule 3.701(d)(7) ], and the record contains evidence to support the level of victim injury scored.

Section 800.04, as amended by chapter 84-86, section 5, Laws of Florida, 2 reads as follows:

Any person who:

(1) Handles, fondles or makes an assault upon any child under the age of 16 years in a lewd, lascivious, or indecent manner;

(2) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or

(3) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years

without committing the crime of sexual battery is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Neither the victim's lack of chastity nor the victim's consent is a defense to the crime proscribed by this section.

The 1984 amendment added subparagraph (2) and changed the language of the last sentence for the expressed purpose of overcoming the effect of the decision in Lanier v. State, 443 So.2d 178 (Fla. 3d DCA 1984), which held that section 800.04,

prohibiting lewd and lascivious conduct with children under the age of 14 years did not prohibit acts of sexual intercourse between an adult and an unchaste, consenting child, and ... took the view that, where the victim is younger than 14 years of age but not younger than 12 years of age, the victim's consent was a defense to the crime of lewd and lascivious handling, fondling, or assault of a child

(Ch. 84-86, Preamble, Laws of Florida) and to clearly reflect that "the intent of the Legislature was and remains to prohibit lewd and lascivious acts upon children, including sexual intercourse and other acts defined as sexual battery, without regard either to the victim's consent or the victim's prior chastity." Ch. 84-86, Preamble, Laws of Florida. Section 794.011(1)(h), referred to in subparagraph 2, contains the following definition:

The term...

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8 cases
  • Hoover v. State
    • United States
    • Florida District Court of Appeals
    • July 21, 1987
    ...a term ("necessarily") usually associated with category 1 lesser included offenses. See also Judge Zehmer's dissent in O'Bright v. State, 508 So.2d 385 (Fla. 1st DCA 1987), and cases cited therein.8 Appellant's trial attorney variously agreed and disagreed with the assertion that appellant ......
  • Welsh v. State
    • United States
    • Florida Supreme Court
    • June 12, 2003
    ...to address issues beyond the scope of the certified conflict). 7. Judge Zehmer made this point in dissent in O'Bright v. State, 508 So.2d 385 (Fla. 1st DCA 1987), when he But in view of the legislature's forceful expression in the preamble to chapter 84-86 of its intent to include within th......
  • Seagrave v. State
    • United States
    • Florida Supreme Court
    • July 12, 2001
    ...assault upon a child where defendant opened victim's legs and started to pull down her bathing suit and shorts); O'Bright v. State, 508 So.2d 385, 386 (Fla. 1st DCA 1987) (holding that defendant convicted under section 800.04(1) with fondling the victim's genitals and having her fondle the ......
  • Jaggers v. State
    • United States
    • Florida District Court of Appeals
    • June 23, 1987
    ...3.701(d)(7); Moore v. State, 469 So.2d 947 (Fla. 5th DCA 1985), quashed on other grounds, 489 So.2d 1130 (Fla.1986); O'Bright v. State, 508 So.2d 385 (Fla. 1st DCA 1987). The only evidence before this court concerning the child's resulting trauma is recited by the mother in the most recent ......
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