Reynolds v. State

• Decision Date: 13 August 1993
• Docket Number: No. 92-648,92-648
• Citation: 622 So.2d 1139
• Parties: 18 Fla. L. Week. D1802 John W. REYNOLDS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1139

622 So.2d 1139

18 Fla. L. Week. D1802

John W. REYNOLDS, Appellant, v. STATE of Florida, Appellee.

No. 92-648.

District Court of Appeal of Florida,

Fifth District.

Aug. 13, 1993.

Rehearing Denied Sept. 2, 1993.

Ronald E. Fox, Ronald E. Fox, P.A., Umatilla, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.

PETERSON, Judge.

John W. Reynolds appeals his convictions and sentences based upon a six-count information charging him with lewd and lascivious assaults upon three girls under the age of sixteen years, pursuant to section 800.04(1), Florida Statutes (1991). We reverse in part and remand.

Appellant raises eight issues on appeal, only two of which warrant discussion. Reynolds contends that the evidence was insufficient to support convictions for lewd and lascivious assaults and that, by erroneously including sentencing guidelines scoresheet points for victim injury, the trial court imposed a departure sentence without contemporaneous written reasons for the departure.

Appellant argues that the evidence was insufficient to support the six convictions for violations of section 800.04(1) because the state failed in each count to establish that the appellant "assaulted" his victims. Five of the six counts against the appellant alleged that the appellant "did knowingly commit a lewd or lascivious assault ... by handling or fondling" either the vagina, the breast, or the buttocks of his child victims. Because of the use of the word "assault" in the information, the appellant asserts the state was charging him with an assault--i.e., a threat to do violence to another, coupled with the apparent ability to do so, and doing an act which creates in the other a well-founded fear that such violence is imminent--rather than a handling or fondling.

In its order denying a new trial, the trial court rejected appellant's argument that the evidence failed to show appellant committed the crime he was charged with and convicted of by stating:

The Court concludes that the Statute's employment of the [dis]junctive or clearly evidences the legislature's intent to prescribe handling and fondling a child under sixteen (16) years of age, which was the gravamen of the offenses, charged, proved, and upon which the Defendant was found guilty by a jury of his peers.

We likewise reject appellant's contention that he was charged and tried for assaults, rather than fondling or handling, in five of the six counts. ¹ We further agree with the trial court that the appellant was properly found guilty of the five counts of handling and fondling and the one count of assault under section 800.04(1).

The record does not include a scoresheet, but the state concedes that 60 points were scored for victim injury: 20 points for each of the three victims for contact but no penetration. Subsequent to appellant's sentencing, the supreme court decided Karchesky v. State, 591 So.2d 930 (Fla.1992), in which it held that points for penetration or contact cannot be scored for category two sexual offenses unless the victim injury consisted of physical trauma. Since no such victim injury evidence was presented in this case, points for victim injury should not have been scored. We do not agree with the state that the amendment to section 921.001 ² requires affirmance. Harrelson v. State, 616 So.2d 128 (Fla. 2d DCA 1993); Morales v. State, 613 So.2d 922 (Fla. 3d DCA), rev. denied, No. 81,679, 623 So.2d 494 (Fla.1993); Boland v. State, 613 So.2d 72 (Fla. 4th DCA), rev. denied, No. 81,476, 624 So.2d 268 (Fla.1993).

Accordingly we remand for resentencing at which time the state may be given the opportunity to show proof of physical trauma to a victim. Hood v. State, 603 So.2d 642, 643 (Fla. 5th DCA 1992). The court may also consider a departure sentence, if appropriate, since there was a lack of intent to impose a departure sentence. State v. Betancourt, 552 So.2d 1107, 1108 (Fla.1989); Hood, 603 So.2d at 643. See also Roberts v. State, 547 So.2d 129, 131 (Fla.1989).

AFFIRMED in part; REVERSED in part; REMANDED.

DIAMANTIS, J., concurs.

DAUKSCH, J., concurs specially, with opinion.

DAUKSCH, Judge, concurring specially.

Appellant urges, inter alia, that a single definition of the word "assault" should be applied throughout the law. That thought assaults my sensibilities. There is a statutory definition for a particular crime of assault, section 784.011, but that does not mean that every time that word is used that that particular definition applies. Suffice it, for me at least, to say that if one touches a child, or an unwilling adult, for that matter, lewdly, or exposes oneself lewdly, then an assault of kind occurs. As did in this case.

At trial everyone, including the jury, was confused about the crime charged and the lesser included offenses. However, the state by charging a "lewd assault" did not charge, as a lesser, the crime of assault. In order to have that crime charged it must be specifically within the words of the greater charge. State v. Daophin, 533 So.2d 761, 762 (Fla.1988); Von Deck v. State, 593 So.2d 1129, 1130 (Fla. 5th DCA), approved, 607 So.2d 1388, 1389 (Fla.1992). For example, the state could have worded its information to charge both by saying "did knowingly commit a lewd or lascivious assault upon (name omitted), date of birth: April 4, 1976, a child under the...