Grant v. State, 1D99-4189.
| Decision Date | 19 March 2001 |
| Docket Number | No. 1D99-4189.,1D99-4189. |
| Citation | 783 So.2d 1120 |
| Parties | Kenneth Tyrone GRANT, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, Jamie Spivey, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General, Douglas T. Squire, Assistant Attorney General, Tallahassee, for Appellee.
The question before us is whether a guidelines scoresheet may include 40 points for "sex contact" as victim injury following appellant's conviction for an attempted lewd and lascivious act upon a child, thereby affecting the sentencing range, in the absence of the jury finding in its verdict that appellant had sexual contact with the victim. The trial judge decided that sexual contact had occurred based on evidence produced at trial. We reverse and remand for resentencing, because the trial judge's finding of sexual contact conflicts with the jury's verdict.
At the conclusion of the trial, the jury returned a verdict finding appellant guilty of the lesser-included offense of attempted lewd and lascivious act upon a child, which is a third-degree felony. The court assigned 40 points on the sentencing guidelines scoresheet for "sex contact" under the category of "victim injury," which resulted in a recommended sentencing range of 51 to 85 months. The trial court thereupon imposed the maximum guidelines sentence of 85 months.
On appeal, appellant argues that because the jury found him guilty of the lesser-included offense of attempting to commit a lewd and lascivious act, he was thereby effectively acquitted of the greater offense involving sexual contact as alleged in the information. Appellant relies on Luhrsen v. State, 702 So.2d 596 (Fla. 2d DCA 1997), wherein the defendant was charged with sexual battery by digital penetration, and two counts of lewd and lascivious acts upon a child. The jury found him guilty of the lesser-included offense of lewd and lascivious act as to the sexual battery count, and guilty as charged on the two remaining counts. The trial court then assessed 40 points for penetration for each count under the victim injury category rather than 18 points for sexual contact. The...
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Bennett v. State
...the attempted sexual battery offense required it to prove that Appellant had some type of sexual contact with N.D.D. In Grant v. State, 783 So.2d 1120 (Fla. 1st DCA 2001), this court held that the trial court erred in assessing sexual contact points based on a jury verdict of attempted lewd......
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Jackson v. State, 2D99-3923.
...victim injury points. If that total includes eighteen victim injury points for count one, it is error. See Grant v. State, 783 So.2d 1120, 1121-22 (Fla. 1st DCA 2001) (explaining that because the jury convicted the defendant of a lesser-included offense of attempted lewd and lascivious act,......
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Beamon v. State, 1D02-1792.
...As the appellant argues and the state acknowledges, these victim injury points should not have been scored. See Grant v. State, 783 So.2d 1120 (Fla. 1st DCA 2001). Accordingly, the appellant's sentence is vacated and this case is remanded for resentencing under a corrected ERVIN, BARFIELD a......