Robles v. State
RICK A. ROBLES, Appellant, v. STATE OF FLORIDA, Appellee.
Case No. 5D06-582
COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT
March 30, 2007, Opinion Filed
PRIOR HISTORY: [*1] Appeal from the Circuit Court for Orange County, J. Lewis Hall, Senior Judge.
DISPOSITION: AFFIRMED.
COUNSEL: James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee.
JUDGES: PLEUS, C.J. THOMPSON and SAWAYA, JJ., concur.
OPINION BY: PLEUS
OPINION: PLEUS, C.J.
Robles appeals his eight year sentence for sexual battery. He argues that the trial court erred in adding eighty points for sexual penetration to his sentencing scoresheet, which raised his minimum possible sentence, without a specific jury finding of penetration. He cites Apprendi n1 and Blakely n2 as support for this argument. However, Apprendi and Blakely only require jury findings for any fact that increases the penalty for a crime “beyond the statutory maximum.” Apprendi, 530 U.S. at 490. The imposition of sexual penetration points did not affect the statutory maximum sentence of fifteen years. Thus, Apprendi and Blakely did not require a jury finding of penetration. Instead, the trial judge was allowed to make this finding by [*2] a preponderance of evidence. See Gilson v. State, 795 So. 2d 105, 111 (Fla. 4th DCA 2001). The trial court’s finding of penetration was supported by the undisputed testimony of the victim and Robles. Accordingly, we affirm Robles’ sentence.
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n1 Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000).
n2 Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004).
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AFFIRMED.
THOMPSON and SAWAYA, JJ., concur.