further motions for rehearing shall be permitted.
Consolidated appeal from the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Thomas M. Lynch
V, Judge; L.T. Case Nos. 16-3306CF10A and 16-5007CF10A.
Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.
B. Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.
ON APPELLANT'S MOTION FOR REHEARING, REHEARING EN
BANC, AND/OR CLARIFICATION
grant appellant's motion for rehearing and clarification,
and deny appellant's motion for rehearing en banc. We
substitute the following opinion for the opinion which we
issued on March 20, 2019.
defendant appeals from his conviction and sentence following
his no contest plea to crimes of a sexual and non-sexual
nature committed against a former romantic partner. The
defendant raises three properly preserved arguments: (1) his
scoresheet should not have included 160 sexual penetration
points, because he pled to an information which charged
"union or penetration" in the alternative, and at
no time during the plea did he admit that penetration
occurred; (2) if defense counsel, by stipulating to a factual
basis at the time of the plea, implicitly stipulated to a
penetration finding, then such stipulation was insufficient
to waive the defendant's right to a jury determination of
penetration; and (3) the trial court erred in denying the
defendant's Florida Rule of Criminal Procedure
3.800(b)(2) motion, which challenged the legality of various
costs. On the first two arguments, we affirm. On the third
argument, we agree that all but one of the challenged costs
require reversal and correction of the judgment.
begin by addressing the first two arguments on the
penetration issue, before addressing the third argument on
the costs issue.
stated above, defense counsel stipulated to a factual basis
at the time of the plea, thereby implicitly stipulating to a
penetration finding, which was reflected in the
scoresheet's inclusion of 160 sexual penetration points.
At no point during the plea colloquy, or the sentencing
hearing which immediately followed, did the defendant object
to his scoresheet's inclusion of 160 sexual penetration
points, in contrast to the information which charged
"union or penetration" in the alternative. Further,
during the sentencing hearing, the victim testified on direct
examination, without objection, that the defendant put his
penis in her vagina, and that the defendant put his tongue in
her vagina, without her consent in either instance. Defense
counsel's cross-examination of the victim also
acknowledged that one count was for "the penis and
vagina penetration" and the other count was for
"[the defendant's] mouth to [the victim's]
vagina." At no point did defense counsel challenge the
victim on any alleged lack of penetration in either instance.
Instead, defense counsel's main argument sought a
downward departure or other mitigation because the defendant
thought the sexual encounter was consensual.
v. State, 186 So.3d 593 (Fla. 4th DCA 2016), although
factually distinguishable, is illustrative here. In
Dames, the state charged the defendant with lewd or
lascivious battery and child abuse. Id. at 594.
Pursuant to a plea bargain, which greatly benefitted the
defendant, the state dropped the lewd and lascivious battery
charge. Id. In exchange, the defendant pled guilty
to child abuse. Id. The defendant also acknowledged
that he was originally charged with lewd or lascivious
battery and that he scored beyond the statutory maximum for
child abuse. Id.
the plea colloquy, the trial court explained that a child
abuse charge, involving a sexual penetration allegation,
carried a sixty-six month prison sentence. Id. at
594-95. Although the defendant never expressly admitted any
facts, he never contradicted the trial court's references
to sexual penetration. Id. Moreover, the defendant
did not object to his scoresheet, which included victim
injury points for penetration. Id.
the defendant violated probation and was sentenced based upon
the original scoresheet, which included the penetration
points. Id. at 595. On appeal, the defendant argued
that the trial court erred in assessing penetration points
because he never admitted penetration during his guilty plea