Pinacle v. State, 92-3

• Decision Date: 12 October 1993
• Docket Number: No. 92-3,92-3
• Citation: 625 So.2d 1273
• Parties: 18 Fla. L. Weekly D2209 Dewayne Jermaine PINACLE, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1273

625 So.2d 1273

18 Fla. L. Weekly D2209

Dewayne Jermaine PINACLE, Appellant, v. The STATE of Florida, Appellee.

No. 92-3.

District Court of Appeal of Florida Third District.

Oct. 12, 1993.

Rehearing Denied Nov. 23, 1993.

Jeffery P. Raffle, Miami, for appellant.

Robert A. Butterworth, Atty. Gen. and Giselle D. Lylen, Asst. Atty. Gen., for appellee.

Before NESBITT, FERGUSON and GODERICH, JJ.

PER CURIAM.

The defendant, Dewayne Jermaine Pinacle, appeals the sentences he received as a result of his convictions on various charges. We affirm.

As the victim pulled up to her home, a car occupied by two men pulled up next to her car. The defendant got out, approached her car, put a gun to her head and demanded her jewelry and her purse. The defendant ordered the victim to get into his car and to remove her clothing. Then, they abducted her taking her to another location and both men had forcible intercourse at gunpoint with the victim. While driving, the codefendant loaded the gun in the victim's presence and told her that they were going to kill her. They stopped at an automatic teller machine and forced the victim to withdraw money. Then, they drove her home. While the codefendant accompanied the victim into her home, the defendant ransacked the victim's car. The defendant 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....