Rogers v. State, No. 2D05-3965.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Rogers' judgment and sentence are affirmed
• Citation: 963 So.2d 328
• Parties: Michael ROGERS, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 2D05-3965.
• Decision Date: 17 August 2007

963 So.2d 328

Michael ROGERS, Appellant,
v.
STATE of Florida, Appellee.

No. 2D05-3965.

District Court of Appeal of Florida, Second District.

August 17, 2007.

963 So.2d 329

James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

963 So.2d 330

CANADY, Judge.

Michael Rogers appeals his conviction and sentence for lewd and lascivious battery. We affirm Rogers' conviction without comment, and we affirm his sentence for the reasons we explain.

I. Background

Rogers was charged with lewd and lascivious battery on a child under sixteen, a felony of the second degree, see § 800.04(4)(a), Fla. Stat. (2003), subject to a statutory maximum prison sentence of 15 years, see § 775.082(3)(c), Fla. Stat (2003). The information alleged that Rogers had the "victim place her hand and then her mouth on his penis." The jury convicted Rogers as charged. The jury's verdict contained a specific finding that there was "sexual penetration." Rogers' Criminal Punishment Code scoresheet reflected 80 victim injury points for penetration. The lowest permissible prison sentence shown on the scoresheet was 94.6 months. The trial court sentenced Rogers to that minimum prison sentence followed by 5 years' probation.

On appeal, Rogers argues that because the information did not allege penetration, the trial court erred in including the issue of penetration on the verdict form and in scoring 80 penetration points on the sentencing scoresheet. In support of his argument, Rogers relies on this court's decision in Whalen v. State, 895 So.2d 1222 (Fla. 2d DCA 2005).

The State responds that Rogers did not file a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The State also claims that the trial court's failure to have the jury decide the penetration issue would have violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The State does not address the merits of Rogers' claim that the omission of an allegation of penetration in the information precluded the assessment of points for penetration on the sentencing scoresheet.

II. Analysis

In our analysis, we first explain our conclusion that the issue raised by Rogers was not adequately preserved. We also present the conclusion that even if the asserted error had been preserved, Rogers' reliance on Whalen is misplaced.

A. Preservation

We conclude that the issue raised by Rogers concerning the penetration points was not adequately preserved under the requirements of Florida Rule of Appellate Procedure 9.140(e). At trial, the State argued that the verdict form should include a question regarding penetration but defense counsel argued that because the information did not allege penetration, such a question should not be included on the verdict form. In the sentencing proceedings, however, the defense offered no objection to the assessment of the points for sexual penetration. Rule 9.140(e) provides that a claim of "sentencing error" may be raised on appeal only if the "alleged error" was "first . . . brought to the attention" of the sentencing court either "at the time of sentencing" or by way of a Florida Rule of Criminal Procedure 3.800(b) motion. Here, the objection to the verdict form was not an objection raised "at the time of sentencing" and Rogers filed no 3.800(b) motion.

B. The Assessment of Victim Injury Points

In considering the merits of Rogers' claim, we begin with a general discussion of the basis for the assessment of victim injury points and the principle that points may be assessed for victim injury that is

963 So.2d 331

not an element of the crime charged. From that principle, we turn to a discussion of the constitutional requirement that a charging instrument allege all the elements of the crime charged. We then consider the implications that Apprendi and its progeny have for determining what constitutes an element of an offense which must be alleged in the charging instrument. We explain our reading of Whalen in light of the reasoning of Apprendi and its progeny. Finally, we conclude that penetration was not an element or the functional equivalent of an element of the offense charged against Rogers and accordingly was not required to be alleged in the information

1. The Basis for Victim Injury Points

Section 921.0021(7), Florida Statutes (2003), provides the definition of victim injury that governs the assessment of victim injury points on Criminal Punishment Code scoresheets. See also Fla. R.Crim. P. 3.704(d)(9). The statute sets forth the basic definition of victim injury as "the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense." § 921.0021(7)(a) (emphasis added).

The statute contains additional provisions with respect to offenses "involving sexual contact." § 921.0021(7)(b). In pertinent part, the statute provides that where "the conviction is for an offense involving sexual contact that includes sexual penetration, the sexual penetration must be scored in accordance with the sentence points provided under s. 921.0024 for sexual penetration, regardless of whether there is evidence of any physical injury." § 921.0021(7)(b)(1) (emphasis added). (The Criminal Punishment Code worksheet set forth in section 921.0024(1)(a) provides 80 sentence points for sexual penetration.)

Under these statutory provisions, the assessment of penetration points is not limited to circumstances where penetration was an element specifically charged in the information. An offense can be one "involving sexual contact that includes sexual penetration" regardless of whether penetration was an element of the offense alleged in the information. § 921.0021(7)(b)(1).

The specific provisions of the statute relating to offenses "involving sexual contact that includes sexual penetration" must be read in the context of the basic definitional provision which permits the assessment of points for victim injury suffered "as a direct result" of an offense for which the defendant is convicted. The use of the words "involving" and "as a direct result" in the pertinent statutory provisions indicates that an injury or act of sexual penetration is a basis for the assessment of victim injury points whenever the injury or act of sexual penetration takes place in the course of or in connection with the commission of the offense for which the defendant is convicted. See Geary v. State, 675 So.2d 625, 626 (Fla. 2d DCA 1996) (recognizing that the assessment of victim injury points depends on "whether the victim's injury was a direct result of the defendant's crimes").

This reading of the statute is supported by the history of the assessment of victim injury points under the sentencing guidelines. The 1985 version of Florida Rule of Criminal Procedure 3.701(d)(7) provided that "victim injury shall be scored if it is an element of any offenses at conviction." See The Fla. Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So.2d 824, 826 (Fla.1984). Subsequently, that provision was amended and the 1988 version of rule

963 So.2d 332

3.701(d)(7) provided that "victim injury shall be scored for each victim physically injured during a criminal episode or transaction." See Fla. Rules of Criminal Procedure Re Sentencing Guidelines (Rules 3.701 & 3.988), 509 So.2d 1088, 1089 (Fla. 1987). In approving this change, the court observed: "We see merit in scoring physical injury if a defendant physically injures the victim of the offense during the course of a criminal episode, regardless of whether the injury is an element of the crime." Id. The requirement that victim injury be an element of the offense was thus removed. Although various refinements of the provisions governing the assessment of victim injury points have been adopted over the course of time, none of those refinements has reintroduced—either explicitly or implicitly—the earlier requirement that the victim injury be an element of the crime

2. The Required Content of an Information

An information "shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fla. R.Crim. P. 3.140(b). "The purpose of an information is to fairly apprise the defendant of the offense with which he is charged." Leeman v. State, 357 So.2d 703, 705 (Fla.1978). "An information must allege each of the essential elements of a crime to be valid." State v. Dye, 346 So.2d 538, 541 (Fla.1977). "Due process prohibits a defendant from being convicted of a crime not charged in the information or indictment." Crain v. State, 894 So.2d 59, 69 (Fla.2004).

The Sixth Amendment of the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation." See also art. I, § 16(a), Fla. Const. ("In all criminal prosecutions the accused shall, upon demand, be informed of the nature and cause of the accusation. . . ."). The Sixth Amendment's notice guarantee is— by virtue of the Fourteenth Amendment's due process clause—applicable to state prosecutions. "No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal." Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948). This right of a defendant "to reasonable notice of a charge against him,"...