Seagrave v. State

• Decision Date: 12 July 2001
• Docket Number: No. SC00-2228.,SC00-2228.
• Citation: 802 So.2d 281
• Parties: Steven SEAGRAVE, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

802 So.2d 281

Steven SEAGRAVE, Petitioner, v. STATE of Florida, Respondent.

No. SC00-2228.

Supreme Court of Florida.

July 12, 2001.

Rehearing Denied August 31, 2001.

Nancy A. Daniels, Public Defender, and Jamie Spivey, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.

Robert A. Butterworth, Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Karla D. Ellis, Assistant Attorney General, Tallahassee, FL, for Respondent.

PARIENTE, J.

We have for review a decision of the First District Court of Appeal, which certified a question to be of great public importance.¹ See Seagrave v. State, 768 So.2d 1121, 1123 (Fla. 1st DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We rephrase the certified question as follows:

IS THE ASSESSMENT OF VICTIM INJURY POINTS FOR "SEXUAL CONTACT" UNDER SECTION 921.0011(7), FLORIDA STATUTES (1997), LIMITED TO CRIMINAL ACTS THAT CONSTITUTE SEXUAL BATTERY, THUS REQUIRING THE UNION OF THE SEXUAL ORGAN OF ONE PERSON WITH THE ORAL, ANAL OR VAGINAL OPENING OF ANOTHER?²

For the reasons that follow, we answer the rephrased certified question in the negative and affirm the First District's decision.

FACTS AND BACKGROUND

Petitioner Steven Seagrave was convicted of committing a lewd, lascivious or indecent assault on a child under the age of sixteen pursuant to section 800.04, Florida Statutes (1997).³ Seagrave does not contest the sufficiency of the evidence to support a conviction for lewd and lascivious conduct and admits that the record revealed that Seagrave rubbed the twelve-year old victim's buttocks and placed her hand on his clothed penis. In sentencing Seagrave, the trial court assessed forty victim injury points for "sexual contact" pursuant to section 921.0011(7)(b)2., Florida Statutes (1997), which provides:

If the conviction is for an offense involving sexual contact that does not include sexual penetration, the sexual contact must be scored in accordance with the sentence points provided under s. 921.0014 for sexual contact, regardless of whether there is evidence of any physical injury.⁴

On appeal, the First District affirmed the imposition of victim injury points, adopting the rationale of the Fifth District's decision in Kitts v. State, 766 So.2d 1067, 1069 (Fla. 5th DCA 2000) (on rehearing en banc), wherein the district court held that fondling and kissing a child's breasts qualified as "sexual contact" within section 921.0011(7)(b)2. See Seagrave, 768 So.2d at 1123. In reaching this conclusion in Kitts, the Fifth District expressly receded from its prior decisions in Reyes v. State, 709 So.2d 181 (Fla. 5th DCA 1998), and Spioch v. State, 742 So.2d 817 (Fla. 5th DCA 1999),review granted, 760 So.2d 948 (Fla.2000). See Kitts, 766 So.2d at 1069; Seagrave, 768 So.2d at 1123.

In Reyes, the defendant was convicted of attempted sexual battery under sections 777.04 and 794.011(5), Florida Statutes (1995). 709 So.2d at 181. The basis for the assessment of the victim injury points was the fondling of the female victim's breasts. See id. at 181. The Fifth District in Reyes concluded that because the sexual battery statute defined "sexual battery" as "oral, anal, or vaginal penetration by, or union with the sexual organs of another," the imposition of victim injury points for "sexual contact" based upon a violation of the sexual battery statute referred only to those circumstances in which "union or penetration" occurred.⁵ See id. at 182. In reliance on Reyes, the Fifth District in Spioch held that the defendant's fondling of the victim's penis through the victim's clothing did not constitute "sexual contact" for purposes of imposing victim injury points because "neither penetration nor union occurred." 742 So.2d at 818. However, Spioch involved the crime of lewd and lascivious assault on a minor rather than sexual battery.

Because in Kitts the Fifth District subsequently receded from Reyes and Spioch, all of the district courts that have interpreted section 921.0011(7)(b)2. presently are in agreement that "sexual contact" victim injury points are not limited to acts involving "a union of the sexual organ of one person with the oral, anal or vaginal openings of another." See Louis v. State, 764 So.2d 930, 931-32 (Fla. 4th DCA 2000) (holding that conviction for attempted sexual battery for the intentional touching of the minor victim's chest and genital area constituted sexual contact to warrant the assessment of victim injury points under the sentencing guidelines); Blackburn v. State, 762 So.2d 989, 990 (Fla. 5th DCA 2000) (holding that defendant's rubbing of his erect penis on the victim's clothed back in violation of section 800.04(1) constituted sexual contact for purposes of assessing victim injury points); Vural v. State, 717 So.2d 65, 67 (Fla. 3d DCA 1998) (holding that victim injury points were properly assessed for sexual contact where defendant convicted of attempted sexual battery and battery after defendant forced victim to masturbate defendant's penis); Mackey v. State, 516 So.2d 330, 330-31 (Fla. 1st DCA 1987) (holding that victim injury points were properly assessed for sexual contact for lewd and lascivious conduct under section 800.04, where defendant fondled a thirteen-year-old by touching the victim above the crotch).

In Seagrave, the First District affirmed the trial court's assessment of victim injury points. Nonetheless, the First District stated that it was

not unimpressed with Judge Peterson's dissenting arguments in Kitts, which noted particularly that the legislature has not defined "sexual contact" for guideline scoring purposes, and that if a penal statute is susceptible to different interpretations, it should be construed in the defendant's favor. We are also aware of the supreme court's strict construction of victim injury points in Karchesky v. State, 591 So.2d 930 (Fla. 1992).

Seagrave, 768 So.2d at 1123. Judge Peterson, in his dissenting opinion in Kitts and in his opinion in Reyes, expressed the view that victim injury points for sexual contact were limited to acts of sexual battery that involved union but no penetration. See Kitts, 766 So.2d at 1068 (Peterson, J., dissenting); Reyes, 709 So.2d at 182.

Accordingly, in order to resolve any uncertainty regarding the interpretation of "sexual contact" for the assessment of victim injury points under section 921.0011(7), the First District certified the above question to the Court as one of great public importance. See Seagrave, 768 So.2d at 1123.

ANALYSIS

The question presented in this case is under what circumstances victim injury points may be assessed for "sexual contact" under section 921.0011(7). Seagrave asserts that victim injury points are limited to criminal offenses that rise to the level of a sexual battery. In other words, Seagrave maintains that the trial court improperly assessed victim injury points for his conviction under section 800.04 for fondling a minor victim's buttocks and placing the victim's hand on Seagrave's clothed penis because this conduct did not involve a union of the sex organ of one person with the oral, anal or vaginal opening of another. Because the assessment of victim injury points under the sentencing guidelines at issue in this case is based on a statutory scheme, we necessarily begin with the words of the statute. See Overstreet v. State, 629 So.2d 125, 126 (Fla. 1993) (explaining that "[l]egislative intent must be determined primarily from the language of the statute").

Section 921.0011(7) provides:

(7)(a) "Victim injury" means 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.

(b) Except as provided in paragraph (c) or paragraph (d),

1. If 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. 921.0014 for sexual penetration, regardless of whether there is evidence of any physical injury.

2. If the conviction is for an offense involving sexual contact that does not include sexual penetration, the sexual contact must be scored in accordance with the sentence points provided under s. 921.0014 for sexual contact, regardless of whether there is evidence of any physical injury.

If the victim of an offense involving sexual contact suffers any physical injury as a direct result of the primary offense or any additional offense committed by the offender resulting in conviction, such physical injury must be scored separately and in addition to the points scored for the sexual contact or the sexual penetration.

(c) The sentence points provided under s. 921.0014 for sexual contact or sexual penetration may not be assessed for a violation of s. 944.35(3)(b)2.

(d) If the conviction is for the offense described in s. 872.06, the sentence points provided under s. 921.0014 for sexual contact or sexual penetration shall not be assessed.

(Emphasis supplied.)

Section 921.0014, Florida Statutes (1997), sets forth the sentencing guidelines, including the appropriate amount of sentencing points that may be added based upon victim injury. With regard to victim injury points, the sentencing guidelines provide:

2nd degree murder-death 240 Death 120 Severe 40 Sexual penetration 80 Moderate 18 Sexual contact 40 Slight 4

§ 921.0014(1)(a).

As the Fifth District explained in Kitts, "[t]here is nothing in the case law or the statutes which expressly defines sexual contact" with regard to section 921.0011(7). 766 So.2d at 1068. Because the statute does not define the term "sexual contact," the Court must resort to canons of statutory construction in order to derive the proper meaning. See Green v. State, 604 So.2d 471, 473 (Fla.1992). "One of the most fundamental tenets...