Mackey v. State, BP-188
| Decision Date | 09 December 1987 |
| Docket Number | No. BP-188,BP-188 |
| Citation | 516 So.2d 330,12 Fla. L. Weekly 2821 |
| Parties | 12 Fla. L. Weekly 2821 Bill MACKEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James J. Egan, Law Office of James J. Egan, Gainesville, for appellant.
Robert A. Butterworth, Atty. Gen., and Kurt L. Barch, Asst. Atty. Gen., Tallahassee, for appellee.
Bill Mackey appeals the final judgment and sentence for his conviction of lewd and lascivious assault upon a child less than 16 years of age. He argues that the trial court erred in assessing 20 points for victim injury on the scoresheet in the absence of the victim having suffered physical trauma. We disagree and affirm.
The information charging appellant alleged that on or about May 17 through May 19, 1985, appellant unlawfully handled, fondled or made an assault upon a 13 year old child, in a lewd and lascivious or indecent manner ... by touching the victim about the crotch, contrary to section 800.04, Florida Statutes. Appellant pled nolo contendere to the charge on July 17, 1986. The state attorney prepared the scoresheet which assessed 20 points for victim injury, contact but no penetration. Appellant was sentenced to 24 months of community control which was the agreed sentence pursuant to his plea bargain. Mackey is appealing the scoring of this 20 points for victim injury.
The addition of the 20 points for victim injury raises the sentence from the nonstate prison sanction it would have been had no injury been scored. Appellant seeks to have his sentencing score recalculated now but, he did agree to the 24 months of community control instead of a possible jail sentence, in exchange for a plea of nolo contendere. Further, the guideline sentence for the score of 178 which includes victim injury has a maximum of 30 months community control, six more than appellant actually received. In Worling v. State, 484 So.2d 94 (Fla. 5th DCA 1986), where Worling was charged in the information with lewd and lascivious assault worded identically to the charge against appellant here, the court found that section 800.04 Florida Statutes is worded in the disjunctive such that it can encompass acts involving victim contact and those without victim contact. The court found that because Worling, like appellant here, had touched the victim as charged in the information, the trial court did not err by adding twenty points to his guidelines scoresheet. Also, although Barrentine v. State, 504 So.2d 533...
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