Grant v. StateGrant v. State
The question before us is whether a guidelines scoresheet may include 40 points for “sex contact” as victim injury following appellant‘s conviction for an attempted lewd and lascivious act uрon a child, thereby affecting the sentencing range, in the absence of the jury finding in its verdict that appellant had sexual contact with the victim. The trial judge decided that sexual contact had occurred based on evidence produced at trial. We reverse and remand for resentencing, because the trial judge‘s finding of sexual contact conflicts with the jury‘s vеrdict.
Appellant was charged with lewd and lascivious act upon a child, a second-dеgree felony under section 800.04, Florida Statutes (1997), by unlawfully handling, fondling, or making an assault on a 15-year-оld female in a lewd and lascivious manner
by penetration or union of the vagina of said [victim] with his sexual organ and/or by fondling and or kissing her breast and/or by fondling or touching her genital area аnd/or by swimming or coming in close contact while nude or naked with said [victim] when she was also nude оr naked and/or by contact with said [victim] while both he and she were nude or naked in a bed without сommitting the crime of Sexual Battery.
At the conclusion of the trial, the jury returned a verdict finding aрpellant guilty of the lesser-included offense of attempted lewd and lascivious act upon a child, which is a third-degree felony. The court assigned 40 points on the sentencing guidelines scoresheеt for “sex contact” under the category of “victim injury,” which resulted in a recommended sentеncing range of 51 to 85 months. The trial court thereupon imposed the maximum guidelines sentencе of 85 months.
On appeal, appellant argues that because the jury found him guilty of the lessеr-included offense of attempting to commit a lewd and lascivious act, he was thereby effectively acquitted of the greater offense involving sexual contact as alleged in the information. Appellant relies on Luhrsen v. State, 702 So.2d 596 (Fla. 2d DCA 1997), wherein the defendant was charged with sexual battеry by digital penetration, and two counts of lewd and lascivious acts upon a child. The jury found him guilty of the lesser-included offense of lewd and lascivious act as to the sexual battery count, and guilty as charged on the two remaining counts. The trial court then assessed 40 points for pеnetration for each count under the victim injury category rather than 18 points for sexual contact. The Second District Court of Appeal reversed and remanded for resentеncing, reasoning that the trial court was without authority to make a penetration finding. In reaching its decision, the Second District explained that because sexual battery requires penetration, but the jury had returned a verdict for the lesser-included offense of lewd and lasciviоus act on the sexual battery charge, the jury‘s verdict must be considered to be a determinаtion of no penetration. Id. at 596.
The same analysis applies in the instant case wherein thе information charged various lewd and lascivious acts involving sexual contact, but the jury returnеd a verdict for the lesser-included offense of attempted lewd and lascivious act. Based on the charging document and the verdict, we must conclude that the jury found that no sexual сontact had occurred. The trial judge‘s finding of sex contact conflicted with the jury‘s verdict аnd, therefore, was
We further observe that becausе appellant‘s sentence was increased beyond the statutory maximum as a result of the 40 points scored, the sentence may be inconsistent with the United States Supreme Court‘s ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), holding thаt any fact, other than a prior conviction, which increases a penalty beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Wе expressly decline to address this issue, however, since it is unnecessary to the disposition of this case.1
Appellant‘s conviction is AFFIRMED, but his sentence is REVERSED and the case is REMANDED for resentencing with a corrected scoresheet.
WEBSTER and LEWIS, JJ., concur.