State v. Barnum

738 So. 2d 960, 738 P.2d 960, 1999 Fla. App. LEXIS 5977, 1999 WL 595323

Opinion

PER CURIAM.

In this appeal of the sentence imposed on Lloyd Barnum, Jr. upon his conviction by a jury of a lewd act on a child under sixteen years of age, the State contends that the trial court erred in its scoring of victim injury points. Specifically, the State contends that the trial court improperly amended the completed scoresheet by striking the 80 points for penetration and scoring 40 points for contact. We agree and reverse.

Barnum was found guilty as charged by a jury of count I of the second amended information, which count charged Barnum with penetrating the vagina of the victim with his finger. Under these facts, the trial court erred in scoring victim injury as contact rather than penetration. See Lowman v. State, 720 So.2d 1105, 1107 (Fla. 2d DCA 1998) (“The trial judge cannot assess points on a scoresheet that conflict with the jury’s factual findings concerning the offense.”).

Accordingly, we reverse and remand for resentencing with a corrected scoresheet reflecting 80 points for penetration.

Reversed and remanded for resentenc-ing.

FULMER, A.C.J., and WHATLEY, J., and DANAHY, PAUL W., (Senior) Judge, concur.