Dickinson v. State, 96-2746

• Decision Date: 04 April 1997
• Docket Number: No. 96-2746,96-2746
• Citation: 693 So.2d 55
• Parties: 22 Fla. L. Weekly D873 Patrick DICKINSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 55

693 So.2d 55

22 Fla. L. Weekly D873

Patrick DICKINSON, Appellant, v. STATE of Florida, Appellee.

No. 96-2746.

District Court of Appeal of Florida,

Fifth District.

April 4, 1997.

Rehearing Denied May 15, 1997.

Mark S. Blechman of Lubet & Blechman, Orlando, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.

HARRIS, Judge.

Patrick Dickinson was originally charged with four counts of sexual offense against a fifteen-year-old victim. He entered a plea of guilty to two of those charges under a negotiated arrangement in which the State dropped two of the charges and agreed not to pursue an unrelated case and not to file charges involving other presently known victims. The penalty agreement was announced by the State:

Mr. Blechman: The State of Florida will ask for ten years in the Department of Corrections and five years supervised sex offender probation to follow that....

Further, that the Defendant will be entitled to argue for a sentence of eight years.

I believe that is the entire negotiations. I have a plea form I filled out, signed copies in front of you signed by the State, Ms. Drane, Mr. Dickinson and myself.

Based on a scoresheet that scored 40 points for each count of oral sex (one count for each act performed by one on the other) pled to by Dickinson, the court sentenced Dickinson within the limits of the scoresheet's recommended range and in accordance with the State's announced recommendation. Dickinson now contests the legality of the sentence because the court erred in scoring 80 points for "penetration" when it should have scored only 36 points (18 points for each count) for "contact."

The State first contends that since Dickinson was sentenced pursuant to a negotiated agreement, he cannot now contest his sentence. It appears, however, that Dickinson only agreed that the State would recommend 10 years; he did not waive the right to be sentenced under a correct scoresheet.

We must decide, therefore, whether the scoresheet was in error. Is fellatio performed by the defendant on the victim and/or performed by the victim on the defendant the type "penetration" that would justify 40 points for each count? Dickinson maintains that it is not and cites several cases in support. Unfortunately, all of these cases predate the 1993 amendment to the sentencing guidelines which now define "victim injury" (section 921.0011(7)) as:

[T]he physical injury or death suffered by a person as a direct result of the primary offense, or any offense other than the primary offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense. If the conviction is for an offense involving sexual contact which includes sexual penetration, the sexual penetration must be scored as a severe injury regardless of whether there is evidence of any physical injury. If the conviction is for an offense involving sexual contact which does not include sexual penetration, the sexual contact must be scored as a moderate injury regardless of whether there is evidence of any physical injury. [Emphasis added.]

By the enactment of this amendment, the legislature has told u...