Whalen v. State

Decision Date02 March 2005
Docket NumberNo. 2D03-2685.,2D03-2685.
Citation895 So.2d 1222
PartiesDonald F. WHALEN, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

George E. Tragos of Law Offices of George E. Tragos, Clearwater, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Donald F. Whalen challenges his convictions and sentences for three counts of handling and fondling a child under the age of sixteen and two counts of lewd and lascivious battery. We affirm the convictions without discussion; however, we reverse Whalen's sentences in counts two, three, and five and remand for resentencing as to those counts.

Whalen was convicted by a jury of a series of sexual acts committed against a minor. At the sentencing hearing, Whalen objected to the trial court's assessment of enhancement points for penetration under the victim injury section of the guidelines scoresheet, arguing that the information did not allege penetration in counts two, three, and five. The trial court overruled the objection and assessed the points, accepting the State's argument that this court's opinion in Lowman v. State, 720 So.2d 1105 (Fla. 2d DCA 1998), supported the imposition of the points.

Whalen was tried and convicted on a five-count information. Due to the date of the offense, the handling and fondling charge in count one was scored on a separate scoresheet. On that count, the trial court assessed points for contact but not for penetration; Whalen is not contesting that sentence.

Counts two and three charged handling and fondling, specifically alleging that Whalen placed his mouth "on or against" the penis of the victim "without committing sexual battery." Count three, however, also alleged an alternative charge of engaging the victim in "sexual activity." The jury instruction defined "sexual activity" with the alternative language of "penetration by or union with." Count four charged the offense of engaging a child in sexual activity and specifically alleged that Whalen penetrated the victim's anus with his penis. However, count five, which also alleged engaging a child in sexual activity, failed to specifically allege penetration. The jury found Whalen guilty "as charged" on each count. At trial, the victim's testimony established penetration for each of the offenses charged in the information. Thus, the trial court's finding of penetration on each count was supported by the record. Accordingly, the issues now before this court are whether points for penetration may be assessed if the information does not allege penetration and, if so, whether the assessment of the points was proper in light of the recent United States Supreme Court decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

In Dickinson v. State, 693 So.2d 55 (Fla. 5th DCA 1997), the Fifth District determined that fellatio is a type of "penetration" and that such a conviction merits the scoring of penetration points. However, in that case, Judge Antoon dissented, arguing that the record did not factually support a finding that penetration actually took place. Furthermore, the opinion did not spell out the nature of the charge or the specific wording of the information, and the sentence was pursuant to a negotiated plea. Therefore, although Dickinson supports the assessment of penetration points in cases involving fellatio, we decline to extend that ruling to cases where penetration is not specifically alleged in the information.

In Lowman, 720 So.2d at 1106, this court reviewed a sentence imposed following conviction where the information charged "penile union with or penetration of the victim's mouth." This court, noting Judge Antoon's dissent in Dickinson, concluded that the record evidenced an actual penetration of the victim's mouth and that the points should have been assessed even though the verdict form did not specify upon which finding — union with or penetration — the jury's conclusion of guilt was based. Lowman goes on to conclude that a specific jury finding is not a necessary...

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7 cases
  • Rogers v. State
    • United States
    • Florida District Court of Appeals
    • 17 Agosto 2007
    ...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 Pr......
  • Insko v. State
    • United States
    • Florida District Court of Appeals
    • 14 Julio 2006
    ...an element of the offense itself. As such, a jury finding would be necessary to impose the more severe sentence. See Whalen v. State, 895 So.2d 1222 (Fla. 2d DCA 2005). In this case, because the jury at the original trial inexplicably found Insko to be under the age of eighteen, the trial c......
  • Behl v. State, 2D03-184.
    • United States
    • Florida District Court of Appeals
    • 16 Marzo 2005
    ...at 2537 (citation omitted). The Sixth Amendment was violated. Accordingly, Behl's sentence must be reversed. See Whalen v. State, 895 So.2d 1222, 1224 (Fla. 2d DCA 2005) (reversing sentence enhanced due to assessment of penetration points where jury's verdict did "not reflect the findings r......
  • Chatman v. State
    • United States
    • Florida District Court of Appeals
    • 13 Diciembre 2006
    ...in violation of Blakely, requiring a resentencing without the assessment of the victim penetration points. See also Whalen v. State, 895 So.2d 1222 (Fla. 2d DCA 2005) (sentence could not be enhanced unless factor supporting enhancement was shown in specific finding by jury; penetration poin......
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