Mosher v. State

District Court of Appeal of Florida

Mosher v. State

578 So. 2d 900, 1991 Fla. App. LEXIS 4468, 1991 WL 71548

District Court of Appeal of Florida·Decided May 8, 1991·No. No. 90-1316·Published

Opinion

PER CURIAM.

We affirm appellant’s conviction, but we do so without prejudice to appellant to seek relief under Fla.R.Crim.P. 3.850. We reverse the sentence imposed, however, and hold that the trial court erred when it assessed points for victim injury in arriving at the guidelines sentence. The jury found appellant guilty of attempted sexual battery and we find no record support for the assessment of points for victim injury. Victim injury is not an element of the crime of attempted sexual battery. Woodfin v. State, 553 So.2d 1355 (Fla. 4th DCA 1989). Accordingly, we remand for resentencing.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

LETTS, DELL and STONE, JJ., concur.

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PER CURIAM.

We affirm appellant’s conviction, but we do so without prejudice to appellant to seek relief under Fla.R.Crim.P. 3.850. We reverse the sentence imposed, however, and hold that the trial court erred when it assessed points for victim injury in arriving at the guidelines sentence. The jury found appellant guilty of attempted sexual battery and we find no record support for the assessment of points for victim injury. Victim injury is not an element of the crime of attempted sexual battery. Woodfin v. State, 553 So.2d 1355 (Fla. 4th DCA 1989). Accordingly, we remand for resentencing.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

LETTS, DELL and STONE, JJ., concur.

Mosher v. State, 578 So. 2d 900, 1991 Fla. App. LEXIS 4468, 1991 WL 71548 (Fla. Ct. App. 1991).

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Opinion

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