Echols v. State, 94-1938

• Decision Date: 20 September 1995
• Docket Number: No. 94-1938,94-1938
• Citation: 660 So.2d 782
• Parties: 20 Fla. L. Weekly D2162 William ECHOLS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 782

660 So.2d 782

20 Fla. L. Weekly D2162

William ECHOLS, Appellant, v. STATE of Florida, Appellee.

No. 94-1938.

District Court of Appeal of Florida,

Fourth District.

Sept. 20, 1995.

Richard L. Jorandby, Public Defender, and Cherry Grant, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, for appellee.

DELL, Judge.

Appellant William Echols has abandoned his arguments concerning the revocation of his community control. He challenges only the sentence imposed after revocation. We hold that appellant has demonstrated error in the trial court's assessment of victim-injury points, scoring of both underlying offenses as "primary" offenses, calculation of credit for time served in county jail and forfeiture of accumulated gain time.

In 1988, the state filed an information charging appellant with sexual battery and lewd or lascivious act upon a child under the age of sixteen, offenses proscribed under section 800.04, Florida Statutes (1987). Appellant entered a plea of nolo contendere to both felony charges and agreed to be sentenced within the "recommended" range of the sentencing guidelines. The trial court sentenced appellant to two consecutive split sentences of five and one-half years imprisonment, with 148 days credit for time served, followed by nine and one-half years probation.

In January 1994, appellant's probation officer filed an affidavit of violation of probation. One month later, appellant admitted to the violation and received a sentence upon revocation of eighteen months community control. In June 1994, the trial court found appellant in violation of his community control, revoked his sentence and entered a new judgment of conviction for the underlying offenses, thereby sentencing him to a term of twelve years incarceration. The trial court credited the newly imposed sentence as follows:

Defendant is allowed credit for 161 DAYS county jail credit served between date of arrest as a violator and date of resentencing. The Department of Corrections shall apply original jail credit awarded and shall compute and apply credit for time served less gain time Case 88-867.

Appellant received the identical sentence for both the sexual battery and lewd and lascivious counts to be served concurrently.

The trial court calculated appellant's permitted sentence under a sentencing guideline scoresheet that became effective on January 1, 1991, despite appellant's conviction for the scored offenses occurring in 1988. The scoresheet reflects a score of 190 points for two primary offenses of sexual battery and lewd and lascivious act. The trial court added forty points for victim injuries described as "moderate or penetration" on the 1991 guideline scoresheet. The total score of 230 points resulted in a recommended sentence of four and one-half to five and one-half years imprisonment and a permitted sentence of three and one-half to seven years before taking into account a permissible two cell bump up for a second violation of probation or community control.

Appellant initially contends that the trial court improperly assessed forty victim-injury points on the guideline scoresheet prepared after his revocation of community control. ¹ We first note that regardless of whether a trial court assessed victim-injury points at the original sentencing, the trial court upon revocation of probation or community control can impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control. See Sec. 948.06(1), Fla.Stat. (1987). Accordingly, the trial court is not precluded from scoring victim-injury points upon revocation where the offenses so require, even where the original sentences did not reflect such assessment.

Next, we agree with appellant's argument that Karchesky v. State, 591 So.2d 930 (Fla.1992), ² governs the scoring of the victim-injury points in this case. In Karchesky, the supreme court explained that Florida Rule of Criminal Procedure 3.701(d)(7) limits the scoring of victim-injury points to physical trauma and does not encompass any psychological injury to the victim. 591 So.2d at 932-33. In 1992, a subsequent amendment to the sentencing laws, see section 921.001(8), Florida Statutes (Supp.1992), provided that calculation of victim-injury points includes all sexual contact regardless of whether physical trauma results. However, that amendment does not apply retroactively to offenses committed before the effective date of the statute. Boland v. State, 613 So.2d 72 (Fla. 4th DCA) (Warner, J., concurring), rev. denied, 624 So.2d 268 (Fla.1993). The applicable case law therefore confines our review to evidence of physical trauma experienced by the victims of the 1988 sexual offenses.

The state misplaces its reliance upon Boerstler v. State, 622 So.2d 184 (Fla. 1st DCA 1993), as support for its argument that Karchesky does not apply where a defendant pleads guilty or nolo contendere to sexual offenses. In Harper v. State, 632 So.2d 104 (Fla. 1st DCA 1994), the First District Court distinguished Boerstler by permitting challenges to this type of error where the defendant's plea is premised upon a guideline sentence, as opposed to entering an "open plea" or one not dependent upon sentencing within the guidelines, as had the defendant in Boerstler. See also Spring v. State, 647 So.2d 974 (Fla. 1st DCA 1994). Here, appellant entered his plea of nolo contendere to the sexual offenses and agreed to a sentence within the recommended range of the sentencing guidelines. Furthermore, this court and other district courts have concluded that a sentence entered upon a plea of nolo contendere does not preclude correction of an illegal sentence arising from improper scoring of victim-injury points. See Boland; Walls v. State, 627 So.2d 107 (Fla. 2d DCA 1993).

The scoring of victim-injury points depends upon resolution of facts proving "penetration or slight injury" as provided in the appropriate guideline scoresheet from 1988. The record on appeal shows that the state did not allege that penetration or slight injury occurred, and presumably because of entry of the plea agreement the state did not present evidence of victim injury at the original sentencing hearing. We therefore reverse appellant's sentence and remand to the trial court with leave to conduct a hearing to determine the extent of actual injury, if any, and to assess victim-injury points if supported by the evidence. Scott v. State, 642 So.2d 838 (Fla. 4th DCA 1994); Arreola v. State, 620 So.2d 1289 (Fla. 4th DCA 1993).

The trial court's failure to differentiate the scores for primary and additional offenses on the guideline scoresheet also requires correction. Pursuant to Florida Rule of Criminal Procedure 3.710(d)(3) and (4), the trial court must score the offense carrying the most severe sanction as the "primary offense" and score all other offenses pending at the same time as "additional offenses." In this instance, the trial court, utilizing rule 3.988(b) entitled "Category 2: Sexual Offenses," improperly scored 190 points for two counts of lewdness. A proper assessment under this rule results in 158 points scored for the primary sexual battery offense and sixteen points for the additional lewd and lascivious offense, for a total of 184 points. The resulting guideline sentence falls within a permitted range...