O'Bright v. State, No. BL-168

• Court: Court of Appeal of Florida (US)
• Writing for the Court: SHIVERS; ERVIN; ZEHMER; ZEHMER
• Citation: 508 So.2d 385,12 Fla. L. Weekly 807
• Docket Number: No. BL-168
• Decision Date: 20 March 1987
• Parties: 12 Fla. L. Weekly 807 Rudy Vallee O'BRIGHT, Appellant, v. STATE of Florida, Appellee.

Page 385

508 So.2d 385 12 Fla. L. Weekly 807 Rudy Vallee O'BRIGHT, Appellant,
v.
STATE of Florida, Appellee. No. BL-168. District Court of Appeal of Florida,
First District. March 20, 1987.

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

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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

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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...