Pinacle v. State
| Decision Date | 27 April 1995 |
| Docket Number | No. 82945,82945 |
| Citation | 654 So.2d 908 |
| Parties | 20 Fla. L. Weekly S196 Dewayne Jermaine PINACLE, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Jeffery P. Raffle, Coral Gables, for petitioner.
Robert A. Butterworth, Atty. Gen., and Roberta G. Mandel, Asst. Atty. Gen., Miami, for respondent.
We have for review Pinacle v. State, 625 So.2d 1273 (Fla. 3d DCA 1993), based on direct conflict with Linkous v. State, 618 So.2d 294 (Fla. 2d DCA), review denied, 626 So.2d 208 (Fla.1993), and Hood v. State, 603 So.2d 642 (Fla. 5th DCA 1992). We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const.
The facts, as determined by the court below, are as follows:
The defendant [Dewayne Jermaine Pinacle] was charged with and convicted of armed burglary of an occupied dwelling (count I); armed burglary of an automobile (counts II-III); armed robbery (counts IV-VI); armed sexual battery (count VII); armed kidnapping (count VIII); and petit theft (count X).
At the sentencing hearing, the state submitted a sentencing guidelines score sheet totalling 517 points. Defense counsel did not specifically object when the trial court assessed forty points for "penetration or slight injury" rather than twenty points for "contact but no penetration" because the additional twenty points would not affect the sentencing range. Then, the trial court announced that it had discovered a delinquency order issued six weeks prior to the instant offense placing the defendant on a program of community control. Based upon this order, the trial court added another thirty points to the score sheet. This brought the total to 547 points and raised the recommended range to twenty-seven to forty years and the permitted range to twenty-two years to life imprisonment. Defense counsel objected and requested the opportunity to investigate the circumstances surrounding the delinquency order. The court overruled the objection and denied the request for additional time.
The defendant was sentenced to eight concurrent life sentences on the first eight counts which sentences were to include two consecutive minimum mandatory three year sentences for counts III and VII. The trial court did not consider the sentence as a departure. However, the trial court entered written reasons for departure in the event that the sentences were later to be considered guideline departures. The defendant appealed raising several sentencing issues.
First, the defendant, relying on Karchesky v. State, 591 So.2d 930 (Fla.1992), contends that the trial court erred in assessing forty points for victim injury on the sentencing guidelines score sheet where the victim in this sexual battery case did not suffer any ascertainable physical injury, apart from the sexual penetration itself. However, the defendant never made a specific objection to the addition of any points for victim injury. Without the appropriate objection, this issue has not been preserved for appellate review. Perryman v. State, 608 So.2d 528 (Fla. 1st DCA 1992), rev. denied, 621 So.2d 432 (Fla.1993).
Pinacle, 625 So.2d at 1273-74. Pinacle asks that this Court quash the district court's decision and remand this case to the trial court for resentencing pursuant to Karchesky v. State, 591 So.2d 930 (Fla.1992).
The district court found that Pinacle failed to make a specific objection to the addition of points for victim injury. While we agree that the objection was not as specific as it might have been, we find that it was nonetheless sufficient to preserve the Karchesky issue for our review. Our finding is based on the following excerpt from the sentencing hearing transcript:
[MR. KRAMER, defense counsel] One other thing that isn't very much, but I'll point it out to the court, as far as victim injury is concerned, the state gave the defendant 40 points for penetration or slight injury.
I looked over the Indictment, and the Indictment does not allege penetration. It alleges uniting, which may be different. It might be 20 points less.
Now, the way it stands that will not change the presumptive range. It would still be 22 to 27,....
THE COURT: The evidence in the case I think supports that calculation of 40 points, so I'm going to leave it that way.
....
[MR. KRAMER] Based upon the score sheet I had that I was supplied by Ms. Berrien, the juvenile conviction really mattered little one way or the other because of the point scoring and it simply didn't matter. It was still well within the range either way.
But now that we're going up to another range, I want to investigate the facts and circumstances surrounding the juvenile conviction, whether or not it was knowingly, intelligently, and voluntarily plead, specially in light of the court's ruling in the motion to suppress case.
....
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Clark v. State
...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 there was, in fact, additional victim injury apart from pen......
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State v. Montague
...We accepted jurisdiction to answer the following question certified to be of great public importance: HAS PINACLE v. STATE [Pinacle v. State], 654 So.2d 908 (Fla.1995), OVERRULED LINKOUS v. STATE [Linkous v. State], 618 So.2d 294 (Fla. 2D DCA), REVIEW DENIED, 626 So.2d 208 (Fla.1993), AND A......
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Montague v. State
...The appellee, State of Florida, directs our attention on rehearing to the recent decision of the supreme court in Pinacle v. State, 654 So.2d 908 (Fla.1995), contending it has overruled our precedent embodied in Singleton v. State, 620 So.2d 1038 (Fla. 2d DCA 1993), which we cited in our op......
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Corley v. State, No. 3D07-965 (Fla. App. 7/15/2009)
...no penetration" regardless of whether there is evidence of any physical injury. See § 921.001(8), Fla. Stat. (1992); Pinacle v. State, 654 So. 2d 908, 910 n.1 (Fla. 1995); see generally William H. Burgess, III, Florida Sentencing 144-45 (2007). Because the crime dates for both Arroliga and ......