District Court of Appeal of Florida, Second DistrictJul 12, 2000
761 So. 2d 1239 (Fla. Dist. Ct. App. 2000)

No. 2D97-2033.

Opinion filed July 12, 2000.

Appeal from the Circuit Court for Hillsborough County; Jack Espinosa, Jr., Judge.

James Marion Moorman, Public Defender, and Jeffrey Sullivan, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Tonja R. Vickers, Assistant Attorney General, Tampa, for Appellee.

The appellant, Michael A. Wise, challenges his sentence for the offense of aggravated battery causing great bodily harm which occurred on August 16, 1996. Wise raises two points on appeal. First, he claims that the trial court erred by classifying the victim's injuries as severe rather than moderate. Next, Wise challenges the validity of his sentence under the 1995 sentencing guidelines.

The scoring of victim injury points is within the sound discretion of the trial court and will not be reversed absent a showing of abuse of discretion. See Gregory v. State, 666 So.2d 222 (Fla. 2d DCA 1995). We conclude, based on the evidence presented at trial, that the trial court did not abuse its discretion in finding that the victim's injuries were severe and affirm this point without further discussion.

Nonetheless, Wise's second point requires a remand. The Florida Supreme Court recently held that the 1995 sentencing guidelines were unconstitutional. See Heggs v. State, 25 Fla. L. Weekly S139 (Fla. Feb. 17, 2000), revised by 25 Fla. L. Weekly S359 (Fla. May 4, 2000). Therefore, we remand to the trial court for a reconsideration of Wise's sentence. See Smith v. State, 25 Fla. L. Weekly D1273 (Fla. 2d DCA May 24, 2000).