Seccia v. State, 1D97-3046.
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | WEBSTER, J. |
| Citation | 786 So.2d 12 |
| Parties | Richard SECCIA, Appellant, v. STATE of Florida, Appellee. |
| Docket Number | No. 1D97-3046.,1D97-3046. |
| Decision Date | 05 April 2001 |
786 So.2d 12
Richard SECCIA, Appellant,v.
STATE of Florida, Appellee
No. 1D97-3046.
District Court of Appeal of Florida, First District.
April 5, 2001.
Nancy A. Daniels, Public Defender; Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
WEBSTER, J.
In Seccia v. State, 720 So.2d 580 (Fla. 1st DCA 1998), we held, among other things, that an argument regarding an alleged sentencing guidelines scoresheet error could not be considered on appeal because it had not been preserved, and it did not constitute fundamental error. The supreme court has remanded that scoresheet issue to us for further consideration in light of its decision in Maddox v. State, 760 So.2d 89 (Fla.2000). Seccia v. State, 764 So.2d 573 (Fla.2000).
I.
Appellant was convicted of sexual battery upon a child younger than age 12 and a lewd, lascivious or indecent act upon a child. Both offenses were committed sometime between August 1 and September 12, 1995. The sexual battery conviction is a capital felony. § 794.011(2)(a), Fla. Stat. (1995). It requires a sentence of life imprisonment. § 775.082(1), Fla.Stat. (1995). The sentencing guidelines in effect when appellant committed the offenses expressly state that they do not apply to capital felonies. § 921.001(4)(b)2, Fla.Stat. (Supp.1994). The lewd act conviction is a second-degree felony. § 800.04, Fla.Stat. (1995). The sentencing guidelines do apply to it. § 921.001(4)(b)2, Fla.Stat. (Supp. 1994). Appellant received a concurrent six-year sentence for the lewd act conviction. The sentencing guidelines scoresheet prepared for the lewd act conviction includes 40 victim injury points for sexual penetration attributable to the capital sexual battery of which appellant was convicted.
Appellant argues that it was error to score on the lewd act guidelines scoresheet 40 victim injury points for sexual penetration attributable to the capital sexual battery, rather than 18 points for sexual contact attributable to the lewd act conviction; and that the error resulted in a sentence for the latter offense significantly longer than would have been permitted pursuant to a correct scoresheet. The state responds, first, that no error occurred. It argues, further, that even if error did occur, it was not sufficiently serious to be treated as fundamental pursuant to Maddox because it affects only the sentence for the lewd act conviction, which was ordered to run concurrently with the life sentence for the capital sexual battery conviction. Finally, it contends that, even if there was error that is reviewable pursuant to Maddox, it is harmless because of what is known as the "concurrent sentence doctrine."
II.
Florida Rule of Criminal Procedure 3.703(d)(9) provides, in pertinent part:
(9) "Victim injury" is scored for physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing.... Sexual penetration points are scored if an offense pending before the court for sentencing involves sexual penetration. Sexual contact points are scored if an offense pending before the court for sentencing involves sexual contact, but no penetration ....
. . . .
Victim injury resultant from one or more capital felonies before the court for sentencing is not to be included upon any scoresheet prepared for non-capital felonies also pending before the court for sentencing. This in no way prohibits the scoring of victim injury as a result from the non-capital felonies before the court for sentencing.
(Emphasis added). However, the above is part of the rule titled "Sentencing Guidelines
(5) "Victim injury" is scored for physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing. If an offense pending before the court for sentencing involves sexual penetration, victim injury is to be scored. If an offense pending before the court for sentencing involves sexual contact, but no penetration, victim injury shall be scored.
. . .
Notably, this rule, unlike rule 3.703(d)(9), does not contain any provision which prohibits the scoring of victim injury resulting from a capital felony also pending before the court for sentencing. Thus, the question arises whether victim injury resulting from a capital felony pending before the court for sentencing can be scored on the scoresheet under rule 3.702(d)(5). To answer this question, it will be helpful to survey how scoring for "victim injury" has been handled under the various versions of Florida's sentencing guidelines.
When the Florida legislature first adopted the sentencing guidelines in 1984 (see ch. 84-328, Laws of Fla.), the applicable rule provided that "[v]ictim injury shall be scored if it is an element of any offenses at conviction." Fla.R.Crim.P. 3.701(d)(7). The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So.2d 824, 826 (Fla.1984). The committee note to this provision states:
(d)(7) This provision implements the intention of the commission that points for victim injury be added only when the defendant is convicted of an offense (scored as either primary or additional offense) which includes physical impact or contact. Victim injury is to be scored for each victim for [sic] whom the defendant is convicted of injuring and is limited to physical trauma.
Id. at 828. Under this definition of "victim injury," Florida courts held that victim injury arising from capital felonies could not be scored because capital felonies were explicitly exempted from the sentencing guidelines, and could not be scored as an offense at conviction. Torres-Arboledo v. State, 524 So.2d 403, 414 (Fla.1988); Smith v....
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Sims v. State, No. 5D02-2401
...the commission notes to the amendment specifically relate that the injury need not be an element of the crime. See also Seccia v. State, 786 So.2d 12, 14 (Fla. 1st DCA An issue arose at the oral argument of this case concerning whether victim injury points are already factored into the offe......
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Shea v. State, No. 4D13–171.
...victim injury points should not have been included on the guidelines scoresheet for the capital offense in count I. See Seccia v. State, 786 So.2d 12, 14 (Fla. 1st DCA 2001). Removal of 21 victim injury points for count I leaves 283 points on the guidelines scoresheet, changing the permitte......
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Thomas v. State, No. 1D02-2750.
...felony cannot be scored as an additional offense at conviction but may serve as a valid reason for a departure sentence); Seccia v. State, 786 So.2d 12, 15 (Fla. 1st DCA 2001) (holding that physical injury or death resulting from a capital felony should not be scored as victim injury); Gree......
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Shea v. State, No. 4D13-171
...victim injury points should not have been included on the guidelines scoresheet for the capital offense in count I. See Seccia v. State, 786 So. 2d 12, 14 (Fla. 1st DCA 2001). Removal of 21 victim injury points for count I leaves 283 points on the guidelines scoresheet, changing the permitt......