McCalister v. State, 93-1945
| Decision Date | 20 December 1995 |
| Docket Number | No. 93-1945,93-1945 |
| Parties | 21 Fla. L. Weekly D2 Otis McCALISTER, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Marti Rothenberg, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Paulette R. Taylor, Asst. Atty. Gen., for appellee.
Before NESBITT, COPE and LEVY, JJ.
The defendant was convicted of ten counts of sexual battery and one count of lewd assault. A sentencing scoresheet was prepared on which the defendant received 400 points in the category of victim impact for "penetration or slight injury." See Fla.R.Crim.P. 3.988(b). The defendant received consecutive sentences totaling 315 years. He appealed to this court, and we affirmed his convictions and sentences per curiam, without written opinion. McCalister v. State, 557 So.2d 56 (Fla. 3d DCA 1989).
On January 16, 1992, the Florida Supreme Court handed down Karchesky v. State, 591 So.2d 930 (Fla.1992), holding that based on then-existing Florida Rule of Criminal Procedure 3.701(d)(7) (1985), sentencing points could not be scored solely for victim penetration without some accompanying physical injury or trauma. Relying on Karchesky, the defendant filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800. That motion was denied, and the defendant now appeals.
The defendant here failed to object to the assessing of victim injury points at trial, failed to raise the issue on direct appeal, and failed to raise the issue in a previously denied Rule 3.850 motion. Because we conclude that Pinacle v. State, 654 So.2d 908 (Fla.1995) (citing Perryman v. State, 608 So.2d 528 (Fla. 1st DCA 1992), review denied, 621 So.2d 432 (Fla.1993)), requires a contemporaneous objection to preserve a Karchesky issue, we affirm the order under review. Contra Montague v. State, 656 So.2d 508 (Fla. 2d DCA), review granted, 662 So.2d 933 (Fla.1995). Under this reasoning, we need go no further in analyzing defendant's remaining arguments to conclude that the trial court's denial of the motion was proper.
Affirmed.
To continue reading
Request your trial
-
Clark v. State
...was evidence only of penetration. Because it is unclear whether this point was properly preserved below, compare McCalister v. State, 664 So.2d 1149 (Fla. 3d DCA 1995) with Pinacle v. State, 654 So.2d 908 (Fla.1995), we deem it appropriate to remand the cause for a hearing as to whether the......
-
State v. Montague
...and hold that Montague's failure to raise the issue in the trial court is fatal to his claim on appeal. Accord McCalister v. State, 664 So.2d 1149, 1150 (Fla. 3d DCA 1995) (concluding that Pinacle "requires a contemporaneous objection to preserve a Karchesky In Pinacle v. State, 625 So.2d 1......
-
Brantley v. State, 97-858
...proceeding, 1 State v. Montague, 682 So.2d 1085 (Fla.1996); McCalister v. State, 682 So.2d 556 (Fla.1996), approving McCalister v. State, 664 So.2d 1149 (Fla. 3d DCA 1995); State v. Callaway, 658 So.2d 983 (Fla.1995); Holland v. State, 672 So.2d 566 (Fla. 5th DCA 1996), review denied, 678 S......
-
Merchison v. State
... ... 2000); Bynes v. State, 267 So.3d 1043 (Fla. 4th DCA ... 2019); Tolliver v. State, 309 So.3d 718 (Fla. 3d DCA ... 2021); McCalister v. State, 664 So.2d 1149 (Fla. 3d ... DCA ... ...