Karchesky v. State
| Citation | 591 So.2d 930 |
| Decision Date | 16 January 1992 |
| Docket Number | No. 76907,76907 |
| Parties | Marcus E. KARCHESKY, Petitioner, v. STATE of Florida, Respondent. 591 So.2d 930, 17 Fla. L. Week. S55 |
| Court | United States State Supreme Court of Florida |
James B. Gibson, Public Defender and Daniel J. Schafer, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for petitioner.
Robert A. Butterworth, Atty. Gen. and David S. Morgan, Asst. Atty. Gen., Daytona Beach, for respondent.
We have for review Karchesky v. State, 568 So.2d 80 (Fla. 5th DCA 1990), in which the Fifth District held that the commission of the crime of unlawful intercourse with an unmarried person under the age of eighteen years necessarily requires physical contact which allows, in every instance, victim-injury points to be assessed in calculating the sentencing guideline scoresheet for this offense. The Fifth District acknowledged conflict with Thompson v. State, 483 So.2d 1 (Fla.2d DCA 1985), and certified the following question as being of great public importance:
WHETHER POINTS MAY BE ASSESSED FOR PENETRATION UNDER VICTIM INJURY IN CALCULATING THE SENTENCING GUIDELINES SCORESHEET FOR "CATEGORY 2: SEXUAL OFFENSES" FOR A CONVICTION OF THE OFFENSE OF CARNAL INTERCOURSE WITH AN UNMARRIED PERSON UNDER THE AGE OF 18 YEARS, SECTION 794.05, FLORIDA STATUTES.
Karchesky, 568 So.2d at 82. We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. We answer the question in the negative, approve Thompson, and remand this case for resentencing consistent with this decision.
In this case, Marcus E. Karchesky was tried and convicted under section 794.05, Florida Statutes (1985), of three counts of unlawful carnal intercourse with an unmarried person under eighteen years of age. No evidence of any physical injury or trauma to the victim caused by the defendant during the intercourse was presented. In calculating Karchesky's sentencing guideline scoresheet, the trial court assessed victim-injury points for each count of the conviction based on penetration during intercourse, regardless of the fact that no physical injury or trauma from the penetration was shown. The Fifth District, in upholding the assessment of victim-injury points, stated that
[t]he commission of the crime of unlawful intercourse with an unmarried person under the age of 18 years necessarily requires physical contact and penetration. The version of Rule 3.701(d)(7), Florida Rules of Criminal Procedure, in effect at the time of the commission of the offenses, required that "[v]ictim injury shall be scored if it is an element of any offenses at conviction." The committee notes to the amendment of rule 3.701(d)(7) stated: "This provision implements the intention of the commission that points for victim injury be added only when the defendant is convicted of an offense (scored either as primary or additional offense) which includes physical impact or contact."
In Thompson, the Second District Court of Appeal took a contrary view and, in considering the assessment of points for victim injury for an identical offense, stated: "Since victim injury is not an element of the offense of carnal intercourse, see section 794.05, the trial court erred in assessing the eighty-five points." 483 So.2d at 1-2. The district court explained that "[w]hile points for victim injury may not be included on the scoresheet, physical or mental trauma of the victim may be cited as a reason for departure from the guidelines." Id. at 2.
Florida Rule of Criminal Procedure 3.701(d)(7), prior to July 1, 1987, read as follows: "Victim injury shall be scored if it is an element of any offenses at conviction." The committee note for this rule read as follows:
(d)(7) This provision implements the intention of the commission that points for victim injury be added only when the defendant is convicted of an offense (scored as either primary or additional offense) which includes physical impact or contact. Victim injury is to be scored for each victim for whom the defendant is convicted of injuring and is limited to physical trauma.
(Emphasis added.) In a decision explaining this rule, we stated: Florida Rules of Criminal Procedure, 509 So.2d 1088, 1089 (Fla.1987) (emphasis added).
The above rule was amended by this Court effective July 1, 1987, to read as follows: "Victim injury shall be scored for each victim physically injured during a criminal episode or transaction." 1 Id.
The committee note was amended to read as follows:
(d)(7) This provision implements the intention of the commission that points for victim injury be added for each victim injured during a criminal transaction or episode. The injury need not be an element of the crime for which the defendant is convicted, but is limited to physical trauma. However, if the victim injury is the result of a crime for which the defendant has been acquitted, it shall not be scored.
Id. (emphasis added). The Karchesky decision of the Fifth District Court of Appeal justified the assessment of victim-injury points by utilizing that part of the original committee note stating that points could be assessed for victim injury only if the injury was an essential element of the crime. 568 So.2d at 82. In its view, the offense of unlawful intercourse with an unmarried person under the age of eighteen years by its nature "includes physical impact or contact." Id. The district court emphasized the word "contact," but apparently did not consider the immediate succeeding sentence in the original committee note which provided: "Victim injury is to be scored for each victim for whom the defendant is convicted of injuring and is limited to physical trauma." Fla.R.Crim.P. 3.701(d)(7) (1985) () (emphasis added). As noted, the subsequent amendment to the committee note eliminated the clause "which includes physical impact or contact," but maintained the direction that the "injury ... is limited to physical trauma." 509 So.2d at 1089-90. The commission, in requesting this Court to amend the rule, requested the Court to include psychic as well as physical trauma as victim injury for which points may be assessed. We rejected this request in our 1987 decision, stating that we Id. at 1089. However, we did note that in some cases psychic injury could be appropriately considered as a legitimate ground for departure from the guidelines sentence. Id.
We find that the Thompson decision correctly applies the rule in concluding 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 Thompson decision also correctly points out that, while points for a victim's physical injury may not be included in the scoresheet for intercourse which does not cause physical injury when a defendant is charged with this type of offense, the mental or psychic trauma to the victim may be cited as a reason for departure from the guidelines. 483 So.2d at 2. Of course, any specifically identified physical injury or trauma that occurs as a result of the episode may be scored as victim injury. In view of this decision, we find that the form for scoring "Category 2" sexual offenses contained in Florida Rule of Criminal Procedure 3.988(b) needs to be modified to make the form consistent with Florida Rule of Criminal Procedure 3.701(d)(7) and this opinion.
Accordingly, we approve Thompson, quash Karchesky, and direct that this cause be remanded to the trial court for resentencing in accordance with the principles expressed in this opinion.
It is so ordered.
The majority believes that the assessment of victim-injury points for sexual offenses is controlled by the committee note to Florida Rule of Criminal Procedure 3.701(d)(7) (1985), which provides that scorable "[v]ictim injury ... is limited to physical trauma." Sexual penetration standing alone, the majority reasons, does not entail actual physical trauma and is thus unscorable: "[P]enetration, which does not cause ascertainable physical injury, does not result in victim injury as contemplated by the rule for which...
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