Moore v. State, 84-1434
| Decision Date | 30 May 1985 |
| Docket Number | No. 84-1434,84-1434 |
| Citation | 469 So.2d 947,10 Fla. L. Weekly 1338 |
| Parties | 10 Fla. L. Weekly 1338 Gary MOORE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
Moore appeals his sentence imposed under the amended guidelines. He claims the trial court made three errors: the application of the guidelines as amended subsequent to the date on which he committed the offense for which he was sentenced; 1 the assessment of twenty points for victim injury; and the assessment of ten points for prior convictions. We reverse, finding the trial court's only error was its ex post facto application of the amended guidelines.
The defendant committed the offense of "lewd, lascivious or indecent assault or act upon or in the presence of a child" in April 1984. He pleaded guilty in June and was sentenced in September of 1984. Under the guidelines in effect on the date of the offense, Moore's recommended sentence would have been any nonstate prison sanction. His recommended sentence under the amended guidelines was thirty months to three and one-half years incarceration. Without giving written reasons or intending to impose a "departure" sentence, 2 the trial court sentenced him to three and one-half years imprisonment.
Inasmuch as the amended guidelines increased the punishment so as to alter Moore's situation to his disadvantage in relation to the date he committed the offense, their application in this case violates the ex post facto clause. U.S. CONST., art. I, § 10; Art. I, § 10, Fla. Const.; Wilensky v. Fields, 267 So.2d 1 (Fla.1972); Miller v. State, 468 So.2d 1018 (Fla. 4th DCA 1985); Brown v. State, 460 So.2d 427 (Fla. 5th DCA 1984); Carter v. State, 452 So.2d 953, n. 3 at 954 (Fla. 5th DCA 1984). Even though we affirm the balance of this appeal, the sentence received exceeds the presumptive range for a "non-departing" sentence under the guidelines in effect at the time of the offense.
Next, Moore argues the trial court should not have assessed points for victim injury because the offense for which he was sentenced may be committed without victim contact. While this latter contention is true, the "lewd and lascivious assault" statute is written in the disjunctive so that physical contact may constitute an element. 3 The information in the instant case charged the crime in the disjunctive. Thus, in this case, victim contact is an element of the offense for which the defendant was convicted. Under Florida Rule of Criminal Procedure 3.701(d)(7), "victim injury shall be scored if it is an element of any offenses at conviction." Accordingly, the trial court did not err by assessing points for such "victim injury."
The defendant's third contention is that his own admission, reflected in the presentence investigation report, of having two prior convictions is an insufficient verification to allow the trial court to assess points...
To continue reading
Request your trial
-
Beasley v. State, 85-1859
...can be scored for a conviction of lewd, lascivious or indecent assault or act upon or in the presence of a child. Moore v. State, 469 So.2d 947 (Fla. 5th DCA 1985), quashed on other grounds, 489 So.2d 1130 (Fla.1986). The court noted that the lewd and lascivious assault statute was written ......
-
Smelley v. State, BH-376
...State, 457 So.2d 1114 (Fla. 1st DCA 1984). The state argues strenuously that this court should apply the rationale of Moore v. State, 469 So.2d 947 (Fla. 5th DCA 1985), to this case. In Moore, appellant was convicted for the offense of "lewd, lascivious or indecent assault or act upon or in......
-
Johnson v. State
...injury even where the offense charged included victim contact. See also State v. Chaplin, 490 So.2d 52 (Fla.1986); Moore v. State, 469 So.2d 947 (Fla. 5th DCA 1985), quashed on other grounds, 489 So.2d 1130 Thus, it is evident that the sentencing court acted properly in computing appellant'......
-
Holloman v. State, 85-259
...of analyzing the elements of an attempt has been noted. See Barnhill v. State, 471 So.2d 160 (Fla. 5th DCA 1985).2 Cf. Moore v. State, 469 So.2d 947 (Fla. 5th DCA 1985).3 See Albritton v. State, 458 So.2d 320 (Fla. 5th DCA 1984), quashed on other grounds, 476 So.2d 158 (Fla.1985); Burke v. ......