Burnard v. State

District Court of Appeal of Florida

Burnard v. State

571 So. 2d 69, 1990 Fla. App. LEXIS 9465, 1990 WL 205351

CourtDistrict Court of Appeal of Florida

DecidedDecember 11, 1990

DocketNo. 89-2666

StatusPublished

This text of 571 So. 2d 69 (Burnard v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burnard v. State, 571 So. 2d 69, 1990 Fla. App. LEXIS 9465, 1990 WL 205351 (Fla. Ct. App. 1990).

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Opinion

PER CURIAM.

After a jury trial, appellant was found guilty of two counts of sexual battery with a deadly weapon and kidnapping. Appellant asserts, on this direct appeal, that the trial court erred by scoring victim injury twice on the sentencing guidelines score-sheet.

The. category 2 scoresheet provides, under “Victim Injury,” 40 points for “penetration or slight injury.” The trial court scored 80 points — 40 points for each of the two sexual battery offenses. Those two offenses were committed against the same victim during the same episode. As explicated in Weekley v. State, 553 So.2d 239 (Fla. 3rd DCA 1989), it is improper to score more than one victim injury under such circumstances. We therefore reverse the sentence and remand for correction of the scoresheet and for resentencing. It will be proper for the trial judge, upon resentenc-ing, to consider whether a departure from the guidelines range is appropriate. Roberts v. State, 547 So.2d 129, 131 (Fla.1989).

We have examined the remaining issue, wherein the appellant asserts reversible error in the trial court’s denial of appellant’s motion for continuance, and find the same to be without merit.

AFFIRMED in part and reversed in part and remanded for proceedings consistent with this opinion.

SMITH, NIMMONS and ZEHMER, JJ, concur.

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PER CURIAM.

After a jury trial, appellant was found guilty of two counts of sexual battery with a deadly weapon and kidnapping. Appellant asserts, on this direct appeal, that the trial court erred by scoring victim injury twice on the sentencing guidelines score-sheet.

The. category 2 scoresheet provides, under “Victim Injury,” 40 points for “penetration or slight injury.” The trial court scored 80 points — 40 points for each of the two sexual battery offenses. Those two offenses were committed against the same victim during the same episode. As explicated in Weekley v. State, 553 So.2d 239 (Fla. 3rd DCA 1989), it is improper to score more than one victim injury under such circumstances. We therefore reverse the sentence and remand for correction of the scoresheet and for resentencing. It will be proper for the trial judge, upon resentenc-ing, to consider whether a departure from the guidelines range is appropriate. Roberts v. State, 547 So.2d 129, 131 (Fla.1989).

We have examined the remaining issue, wherein the appellant asserts reversible error in the trial court’s denial of appellant’s motion for continuance, and find the same to be without merit.

AFFIRMED in part and reversed in part and remanded for proceedings consistent with this opinion.

SMITH, NIMMONS and ZEHMER, JJ, concur.

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571 So. 2d 69, 1990 Fla. App. LEXIS 9465, 1990 WL 205351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnard-v-state-fladistctapp-1990.

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