Opinion
Case No. 96-1518
Opinion filed January 31, 1997
Appeal from the Circuit Court for Osceola County, Frank N. Kaney, Judge.
James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Michael D. Crotty, Assistant Attorney General, Daytona Beach, for Appellee.
The defendant, Steven M. Baker, was found guilty of two counts of sexual battery in violation of section 794.011(5), Florida Statutes (1995). At sentencing, the trial court assessed 40 points for two counts of penetration, totaling 80 points for victim injury. The record supports a finding of penetration in only one of the two sexual batteries. Thus, 40 points should have been assessed for the one count in which penetration occurred, and 18 points should have been assessed for the other count which involved only contact. Proper calculation of the scoresheet places the defendant in a lower sentencing cell. Accordingly, we reverse the sentence and remand for resentencing.
REVERSED and REMANDED.
DAUKSCH, GRIFFIN and ANTOON, J.J., concur.