Public-domain · open source
OpenJurist

664 So. 2d 1149

Docket No. 93-1945.

McCalister v. State

Otis McCALISTER, Appellant, v. The STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided December 20, 1995.

District Court of Appeal of Florida · decided 1995-12-20

Cited by 7 later decisions — most recently December 2008

7 state decisions

Key passage — most relied on by later courts

“requires a contemporaneous objection to preserve a Karchesky issue”

quoted by 1 later decision, including 682 So. 2d 1085 - State v. Montague

Relies on 591 So. 2d 930 - Karchesky v. State · 662 So. 2d 930 - In re Code of Judicial Conduct · 621 So. 2d 430 - Krajewski v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1995-12-20

View the full empirical analysis of this case →

¶1Bennett H. Brummer, Public Defender and Marti Rothenberg, Asst. Public Defender, for appellant.

¶2Robert A. Butterworth, Atty. Gen., and Paulette R. Taylor, Asst. Atty. Gen., for appellee.

¶3*1150 Before NESBITT, COPE and LEVY, JJ.

¶4PER CURIAM.

¶5The defendant was convicted of ten counts of sexual battery and one count of lewd assault. A sentencing scoresheet was prepared on which the defendant received 400 points in the category of victim impact for "penetration or slight injury." See Fla. R.Crim.P. 3.988(b). The defendant received consecutive sentences totaling 315 years. He appealed to this court, and we affirmed his convictions and sentences per curiam, without written opinion. McCalister v. State,557 So.2d 56 (Fla. 3d DCA 1989).

¶6On January 16, 1992, the Florida Supreme Court handed down Karchesky v. State,591 So.2d 930 (Fla. 1992), holding that based on then-existing Florida Rule of Criminal Procedure 3.701(d)(7) (1985), sentencing points could not be scored solely for victim penetration without some accompanying physical injury or trauma. Relying on Karchesky, the defendant filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800. That motion was denied, and the defendant now appeals.

¶7The defendant here failed to object to the assessing of victim injury points at trial, failed to raise the issue on direct appeal, and failed to raise the issue in a previously denied Rule 3.850 motion. Because we conclude that Pinacle v. State,654 So.2d 908 (Fla. 1995) (citing Perryman v. State,608 So.2d 528 (Fla. 1st DCA 1992), review denied,621 So.2d 432 (Fla. 1993)), requires a contemporaneous objection to preserve a Karchesky issue, we affirm the order under review. Contra Montague v. State,656 So.2d 508 (Fla. 2d DCA), review granted,662 So.2d 933 (Fla. 1995). Under this reasoning, we need go no further in analyzing defendant's remaining arguments to conclude that the trial court's denial of the motion was proper.

¶8Affirmed.

/664/so2d/1149 · .json · Public domain