Seccia v. State, 1D97-3046.
| Decision Date | 05 April 2001 |
| Docket Number | No. 1D97-3046.,1D97-3046. |
| Citation | 786 So.2d 12 |
| Parties | Richard SECCIA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
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.
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).
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."
Florida Rule of Criminal Procedure 3.703(d)(9) provides, in pertinent part:
(Emphasis added). However, the above is part of the rule titled "Sentencing Guidelines (1994 as amended)," and applies only to offenses committed on or after October 1, 1995. Fla.R.Crim.P. 3.703(a). Because appellant's offenses were committed before October 1, 1995, the rule does not apply. The parties agree that Florida Rule of Criminal Procedure 3.702(d)(5), which is part of the rule titled "Sentencing Guidelines (1994)," applies in this case. That rule provides, in pertinent part:
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. State, 501 So.2d 139 (Fla. 2d DCA 1987). See also § 921.001(4)(a), Fla.Stat. (Supp. 1984).
In 1987, rule 3.701(d)(7) was amended to provide that "[v]ictim injury shall be scored for each victim physically injured during a criminal episode or transaction." Florida Rules of Criminal Procedure re Sentencing Guidelines (Rules 3.701 and 3.988), 509 So.2d 1088, 1089 (Fla.1987). The accompanying committee note explained:
(d)(7) This provision implements the intention of the commission that points for victim injury be added for each victim injured during a criminal transaction or episode. The injury need not be an element of the crime for which the defendant is convicted, but is limited to physical trauma. However, if the victim injury is the result of a crime for which the defendant has been acquitted, it shall not be scored.
Id. at 1089-90. The supreme court appears to have suggested that, under this definition of "victim injury," victim injury points for death arising from the capital felony of murder could be scored on a sentencing guidelines scoresheet for the noncapital felony of kidnapping where the death took place during the course of the kidnapping. Bunney v. State, 603 So.2d 1270, 1271 (Fla.1992).
Effective January 1, 1994, the Florida legislature rewrote the sentencing guidelines, providing that "`[v]ictim injury' means the physical injury or death suffered by a person as a direct result of the primary offense, or any offense other than the primary offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense." Ch. 93-406, § 9, at 2924-25, Laws of Fla.; § 921.0011(7), Fla. Stat. (Supp.1994). As a result, the supreme court adopted a new rule which provided that "`[v]ictim 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." Fla.R.Crim.P. 3.702(d)(5). Amendments to Florida Rules of Criminal Procedure re Sentencing Guidelines, 628 So.2d 1084, 1089 (Fla.1993). These new provisions did not indicate whether victim injury could be scored for physical injury or death arising from a capital felony pending before the court for sentencing given the fact that capital felonies continued to be excluded from the sentencing guidelines. See § 921.001(4)(b), Fla.Stat. (Supp.1994). Effective October 1, 1995, the guidelines were again amended by the legislature. Ch. 95-184, §§ 2-7, at 1678-99, Laws of Fla. The above portions of the statutory and rule definitions of "victim injury" in the 1994 guidelines were retained. § 921.0011(7), Fla.Stat. (1995). Amendments to Florida Rules of Criminal Procedure re Sentencing Guidelines, 660 So.2d 1374, 1375 (Fla.1995). However, the rule adopted for the amended 1994 guidelines added the provision prohibiting the scoring of victim injury resulting from a capital felony pending before the court for sentencing. Fla.R.Crim.P. 3.703(d)(9); 660 So.2d at 1376.
Based on the above, we conclude that physical injury or death resulting from a capital felony pending before the court for sentencing should not be scored as victim injury on the scoresheet under rule 3.702(d)(5) of the 1994 guidelines. Although there was no explicit provision prohibiting the scoring of victim injury resulting from a capital felony until the adoption of rule 3.703(d)(9) as a part of the amended 1994 guidelines, we believe that the addition of this provision represented not a change in the sentencing guidelines, but a clarification of the guidelines as they existed since 1994. We reach this conclusion for three reasons.
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...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 2001). An issue arose at the oral argument of this case concerning whether victim injury points are already factored into the o......
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Shea v. State, 4D13–171.
...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 permitted sente......
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Shea v. State, 4D13-171
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