Wilson v. State, 92-03775
| Decision Date | 18 January 1995 |
| Docket Number | No. 92-03775,92-03775 |
| Citation | 648 So.2d 1219 |
| Parties | 20 Fla. L. Weekly D242 James Nolan WILSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Kathleen M. Calcutt of The Law Office of Kathleen M. Calcutt, Tampa, for appellant.
James Nolan Wilson, pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Anne Y. Swing, Asst. Atty. Gen., Tampa, for appellee.
James Nolan Wilson appeals his sentence following the revocation of his community control. Wilson's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wilson, pro se, challenges the imposition of victim injury points and the trial court's use of a newly prepared scoresheet for sentencing on a violation of probation. Because we find merit in Wilson's arguments, we reverse and remand for resentencing.
Wilson was convicted of two counts of sexual activity with a child by a person in familial authority. Sec. 794.041(2)(b), Fla.Stat. (1987). On his original scoresheet, 20 victim injury points were assessed for contact but no penetration and 40 points were assessed for penetration or slight injury. Wilson was sentenced to seven years in prison followed by five years on probation. After his release from prison, Wilson violated his probation. Ultimately, he was given a 22-year suspended prison sentence with one year in county jail to be followed by two years on community control and seven years on probation. When Wilson violated his community control, the trial court sentenced him to 22 years in prison.
The record does not indicate the basis for imposing victim injury points. The information alleged contact and attempted penetration but did not allege any other injuries suffered by the victim. Thus, we reverse for a proper determination of victim injury points. See Karchesky v. State, 591 So.2d 930 (Fla.1992). On remand, the trial court may reimpose the points, if appropriate, after a de novo hearing to determine the extent of victim injury. See Morris v. State, 605 So.2d 511 (Fla. 2d DCA 1992).
We reject the state's argument that Wilson has waived these issues or that any error is harmless. See Daum v. State, 544 So.2d 1035 (Fla. 2d DCA) (), review denied, 551 So.2d 462 (Fla.1989); Najar v. State, 614 So.2d 644, 645 (Fla. 2d DCA 1993) (...
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