Yanke v. State

540 So. 2d 848, 14 Fla. L. Weekly 496, 1989 Fla. App. LEXIS 865, 1989 WL 11947

Opinion

LEHAN, Judge.

Finding no reversible error in defendant’s conviction for lewd assault on a child and attempting to engage a child in sexual activity, we affirm in that regard. However, because of a sentencing guidelines scoresheet miscalculation, we reverse and remand for resentencing.

Points were erroneously calculated for victim injury in connection with the offenses of attempting to engage a child in sexual activity, which resulted in defendant’s score being in a higher cell than was appropriate. See Beasley v. State, 503 So.2d 1347 (Fla. 5th DCA 1987) (when a defendant is convicted of an attempt and victim injury is not necessarily an element of the offense, points may not be scored for victim injury, although in an appropriate case victim injury may provide a valid reason for departure).

The judgment is affirmed, the sentence is reversed, and the cause is remanded for resentencing.

SCHOONOVER, A.C.J., and THREADGILL, J., concur.