Fulkroad v. State, 93-00641
| Decision Date | 01 July 1994 |
| Docket Number | No. 93-00641,93-00641 |
| Citation | 640 So.2d 1160 |
| Parties | 19 Fla. L. Weekly D1416 Gerald Allen FULKROAD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Gregory N. Burns, Fort Myers, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Susan D. Dunlevy, Asst. Atty. Gen., Tampa, for appellee.
Gerald Allen Fulkroad has appealed from the denial of his motion to correct an illegal sentence. Fulkroad pleaded nolo contendere to engaging in sexual activity with a child while in a position of familial or custodial authority, a violation of section 794.041(2)(b), Florida Statutes (1989). He committed the offense on a date falling between November 1, 1990, and June 30, 1991. He was sentenced in accordance with the guidelines on March 30, 1992. The scoresheet utilized at sentencing reveals 40 points for victim injury based solely upon penetration. Fulkroad contends that this assessment was unlawful, and we agree.
In Karchesky v. State, 591 So.2d 930, 932 (Fla.1992), the supreme court ruled that "penetration, which does not cause ascertainable physical injury, does not result in victim injury as contemplated by the rule for which victim-injury points may be assessed." The Florida Legislature amended section 921.001, Florida Statutes (1991), effective April 8, 1992, to reflect its intention that penetration be scored regardless of physical injury. 1 The amendment cannot be retrospectively applied. See Mitchell v. State, 635 So.2d 1073 (Fla. 1st DCA 1994); Weckerle v. State, 626 So.2d 1038 (Fla. 4th DCA 1993); Kleshinski v. State, 620 So.2d 1303 (Fla. 2d DCA 1993); Harrelson v. State, 616 So.2d 128 (Fla. 2d DCA), rev. den., 624 So.2d 268 (Fla.1993); Reynolds v. State, 622 So.2d 1139 (Fla. 5th DCA 1993); Morales v. State, 613 So.2d 922 (Fla. 3d DCA), rev. den., 623 So.2d 494 (Fla.1993). Thus, the victim injury rule applicable to Fulkroad is the one in effect at the time of his offense. Karchesky, construing Florida Rule of Criminal Procedure 3.701(d)7, the rule in effect at the time Fulkroad committed his crime, foreclosed the trial court from scoring victim injury points for penetration unless, of course, the sexual contact with which he was charged resulted in an ascertainable physical trauma. In the absence of evidence that the victim in this case endured physical trauma, the 40 points for victim injury should not have been scored.
Accordingly, we reverse and remand. The trial court may again deny the motion but only if, after reviewing the court's file and record, or conducting an evidentiary hearing, it determines that actual physical injury, wholly apart from penetration,...
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...for "penetration," 5 this amendment cannot be retroactively applied to crimes committed prior to its effective date. Fulkroad v. State, 640 So.2d 1160 (Fla. 2d DCA 1994), rev. denied, 649 So.2d 235 (Fla.1994); Mitchell v. State, 635 So.2d 1073 (Fla. 1st DCA 1994); Weckerle v. State, 626 So.......
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...for penetration may not be scored when the penetration itself does not cause “ascertainable physical injury.” See also Fulkroad v. State, 640 So.2d 1160 (Fla. 2d DCA 1994).2 If the only bases for scoring the victim injury points were the three acts of penetration, Speights is correct that t......
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Shaw v. State, 2D00-2955.
...penetration may be scored for victim injury regardless of physical injury, as was done on Shaw's scoresheet. See Fulkroad v. State, 640 So.2d 1160, 1160-1161 (Fla. 2d DCA 1994). Accordingly, we affirm the trial court's conclusion that issue one is not properly raised in a rule 3.800(a) In i......
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