Florida Court Vacates Sentence for a Defendant who Entered an Open Plea for Lewd and Lascivious Behavior

While every suspect is presumed innocent until proven guilty, in some cases it makes sense for a person charged with a sex crime to enter into a plea agreement or to plead guilty and allow the court to assess a penalty based on that plea. Even if a defendant concedes guilt to a crime, however, the law still affords the defendant the right to a fair and appropriate sentence for the offense charged.

Recently, in a case arising out of the Court of Appeals for the Eleventh Circuit, the court vacated a sentence for a defendant who entered an open plea for the charge of lewd and lascivious behavior, due to an error on the sentencing scoresheet. If you are charged with a sex crime in Clearwater, you should retain a knowledgeable Clearwater sex crime defense attorney to discuss which plea option is in your best interest.

Defendant’s Plea and Subsequent Sentencing

Reportedly, the defendant entered an open plea to lewd or lascivious battery, burglary, and grand theft. In Florida, an open plea is essentially a guilty plea without an agreement with the state regarding sentencing. Rather, an open plea allows the judge to determine the appropriate sentence for the crimes charged.

On the sentencing scoresheet used to evaluate the appropriate sentence, the defendant scored 192.6 points, which included 80 points for victim injury due to sexual penetration. The minimum permissible sentence based on the defendant’s sentencing points was ten years imprisonment. The judge sentenced the defendant to twelve years in prison and three years of probation. The defendant subsequently filed a motion to vacate or correct his sentence. The trial court denied the motion and the defendant appealed. On appeal, the court granted the defendant’s motion and remanded for resentencing.

Sentencing in Sex Crimes

Under Florida law, if a defendant pleads to a crime that does not require the state to prove sexual penetration of the victim, the defendant cannot be assessed victim injury points for penetration during sentencing, unless the defendant either stipulates the penetration happened or agrees to have the victim injury points assessed as part of a plea bargain. Here, the court noted that the crime of lewd and lascivious behavior, the crime to which the defendant entered an open plea, did not require proof of penetration. Additionally, the information and the factual basis for the plea did not allege penetration of the victim. The defendant did not stipulate penetration occurred or agree to have points assessed for victim injury points due to penetration. Therefore, the court held that the victim injury points for penetration should not have been included in the defendant’s sentencing scoresheet.

In evaluating a motion to vacate or correct a sentence, the court stated that in cases where a defendant alleges a sentencing scoresheet error, resentencing is required unless it is conclusively shown the judge would have imposed the same sentence absent the error. To avoid resentencing the state must show definitive proof the error did not contribute to or cause the sentencing decision. In the subject case, the court found that the record did not show the court would have imposed the same sentence if the sentencing scoresheet did not erroneously include eighty victim injury points for penetration. As such, the court remanded the case for resentencing.

Consult an Experienced Clearwater Sex Crime Defense Attorney

If you are a Clearwater resident facing sex crime charges, you should consult a seasoned sex crimes defense attorney to discuss what plea you should enter and what evidence the state is permitted to offer against you. William Hanlon of Hanlon Law is an experienced Clearwater sex crimes defense attorney who will work hard to help you retain your rights. Contact our offices at 727-897-5413 or via the online form to set up a meeting.

More Blog Posts:

Florida Court Finds Trial Court Erred in Imposing a Discretionary Sentence when the Defendant was not Present at the Sentencing Hearing December 5, 2018, Clearwater Sex Crimes Lawyer Blog

Florida Appeals Court Says Trial Court Abused Discretion in Sexual Abuse Case September 18, 2018, Clearwater Sex Crimes Lawyer Blog

Newly Discovered Evidence in Florida Sex Crime Cases  March 23, 2018, Clearwater Sex Crimes Lawyer Blog

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