Opinion
No. 4D98-3825.
Opinion filed March 15, 2000. Rehearing Denied May 10, 2000.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; Paul B. Kanarek, Judge; L.T. No. 97-1337 CFA.
Eugene S. Garrett, Boca Raton, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Barbara A. Zappi, Assistant Attorney General, Fort Lauderdale, for appellee.
We affirm appellant's conviction for commission of an indecent act on a child under 16 years of age on all issues raised, noting that many of the points on appeal were not objected to or preserved at trial. As to the assessment of points on appellant's scoresheet for penetration, appellant argues that it was error to include those additional points because the jury did not make a finding of penetration. However, we agree with McLoud v. State, 741 So.2d 512, 514 (Fla. 5th DCA 1999) (en banc) and hold that "the scoring of victim injury points under section 921.0024, Florida Statutes (1997) is a `sentencing factor,' not an element of the offense. . . . Penetration as a sentencing factor plainly does not need to be charged, nor must it be decided by a jury, nor must it be decided beyond a reasonable doubt." (Emphasis in original) (footnote and citation omitted).
Affirmed.
WARNER, C.J., SHAHOOD and GROSS, JJ., concur.