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Ayos v. State

Florida Court of Appeals, Fourth District

June 19, 2019

KENNY FABRA AYOS, Appellant,
v.
STATE OF FLORIDA, Appellee.

         No 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.

          Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.

          Ashley 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

          Gerber, C.J.

         We 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.

         The 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.

         We will begin by addressing the first two arguments on the penetration issue, before addressing the third argument on the costs issue.

         The Penetration Issue

         As 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.

         Dames 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.

         During 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.

         Later, 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 ...


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