Perryman v. State
| Citation | 608 So.2d 528 |
| Decision Date | 10 November 1992 |
| Docket Number | No. 91-1722,91-1722 |
| Parties | 17 Fla. L. Week. D2561 Joe PERRYMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Nancy A. Daniels, Public Defender, and Abel Gomez, Assistant Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Wendy S. Morris, Asst. Atty. Gen., Tallahassee, for appellee.
The appellant challenges a guidelines sentence imposed under a "Category 2: Sexual Offense" scoresheet, contending that points should not have been assessed for victim injury. In making this argument, the appellant relies on Karchesky v. State, 591 So.2d 930 (Fla.1992), which emphasizes that victim injury is limited to physical trauma, so that for sexual offenses victim injury should not be scored for intercourse or penetration which does not cause ascertainable physical injury.
Although the appellant now disputes the scoresheet computation, he did not raise such an objection or otherwise preserve the issue below. Instead, the appellant advised the court that the computation was correct, and he expressly agreed to the assessment of points for victim injury. In these circumstances, the issue has not been preserved for appellate review. See Dailey v. State, 488 So.2d 532 (Fla.1986).
We acknowledge that our application of Dailey is inconsistent with Hood v. State, 603 So.2d 642 (Fla. 5th DCA 1992). See also, Morris v. State, 605 So.2d 511 (Fla. 2d DCA 1992). But neither Hood nor Morris discusses Dailey, which, like the present case, involved an issue as to the sufficiency of the evidence to support an assessment of points for victim injury. In a different context, the supreme court recently stressed the continuing vitality of Dailey with regard to factual matters which may not be apparent from the record. See Taylor v. State, 601 So.2d 540 (Fla.1992).
Because the appellant failed to preserve the issue for appeal, we decline to consider his argument on the merits. The challenged sentence is affirmed.
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Peters v. State
...(defense counsel waived argument as to assessment of victim injury points by failing to make timely objection); Perryman v. State, 608 So.2d 528, 528 (Fla. 1st DCA 1992) (“[T]he appellant advised the court that the computation was correct, and he expressly agreed to the assessment of points......
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Harper v. State, 92-2344
...DCA 1992). In so deciding, we recognize that this court apparently rejected a similar argument on a direct appeal in Perryman v. State, 608 So.2d 528 (Fla. 1st DCA 1992), review denied, 621 So.2d 432 (Fla.1993). We consider Perryman factually distinguishable, however, because there is no in......
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...618 So.2d 294 (Fla. 2D DCA), REVIEW DENIED, 626 So.2d 208 (Fla.1993), AND ADOPTED THE HOLDING OF PERRYMAN v. STATE [Perryman v. State], 608 So.2d 528 (Fla. 1ST DCA 1992), REVIEW DENIED, 621 So.2d 432 (Fla.1993), SO THAT IN ORDER TO PRESERVE A KARCHESKY SENTENCING ERROR FOR APPELLATE REVIEW ......
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Montague v. State
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