DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JEROMEE SAFFOLD a/k/a JEREMY SAFFOLD,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-1879
[January 6, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara R. Duffy, Judge; L.T. Case No. 15-
003460CF10A.
Carey Haughwout, Public Defender, and Claire Victoria Madill,
Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Melynda L. Melear,
Senior Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Jeromee Saffold appeals his sentences imposed after he pleaded no
contest to seven counts: (I)–(V) armed sexual battery; (VI) kidnapping with
intent to facilitate a felony; and (VII) aggravated battery with a deadly
weapon. We affirm in part, reverse in part, and remand. 1
i. The Improper Firearm Points on Saffold’s Scoresheet
Saffold first argues the improper inclusion of firearm points on his
scoresheet requires reversal. The State partially concedes the improper
1We affirm without comment all issues not discussed in this opinion, with one
exception: We note that the State correctly concedes error on the trial court’s
imposition of a dangerous sexual felony offender designation and 25-year
mandatory minimum sentence on counts II through V, see Thomas v. State, 183
So. 3d 479, 480 (Fla. 4th DCA 2016), and on count VI, see § 794.0115(2), Fla.
Stat. (2019). On remand, we direct the court to correct these errors in the written
sentences.
inclusion of the firearm points but argues any error was harmless. On
this issue, we affirm but remand.
We agree eighteen firearm points were erroneously included on Saffold’s
scoresheet. If a defendant is convicted of “any felony other than those
enumerated in s. 775.087(2)” while having a firearm in his possession,
then eighteen firearm points are authorized. § 921.0024(1)(b), Fla. Stat.
(2019). Saffold was convicted of five counts of armed sexual battery, one
count of kidnapping, and one count of aggravated battery with a deadly
weapon (a firearm), all of which are enumerated felonies in section
775.087. See § 775.087(2)(a)1.b., f., g., Fla. Stat. (2019). Because all are
enumerated felonies, the eighteen firearm points were not authorized.
While the court erred, on this point the record shows any error was
harmless. So we affirm the sentence but direct the court to correct the
scoresheet on remand. See, e.g., Platt v. State, 268 So. 3d 170, 171 (Fla.
4th DCA 2019).
ii. The Improper Sexual Penetration Points on Saffold’s Scoresheet
Saffold also argues the court erroneously imposed sexual penetration
points, instead of sexual contact points, on counts I, IV, and V.
“Penetration and union are not synonymous terms.” Anthony v. State, 854
So. 2d 744, 748 (Fla. 2d DCA 2003) (citing Wright v. State, 739 So. 2d
1230, 1234 (Fla. 1st DCA 1999)). “Union permits a conviction based on
contact with the relevant portion of anatomy, whereas penetration requires
some entry into the relevant part, however slight.” Tirado v. State, 219 So.
3d 146, 149 (Fla. 4th DCA 2017) (quoting Seagrave v. State, 802 So. 2d
281, 287 n.7 (Fla. 2001)).
Under the Apprendi/Blakely line of cases, when a defendant pleads
guilty, the State may seek a sentence enhancement by the judge as long
as the defendant “either stipulates to the relevant facts or consents to
judicial factfinding.” Blakely v. Washington, 542 U.S. 296, 310 (2004)
(citing Apprendi v. New Jersey, 530 U.S. 466, 488 (2000); Duncan v.
Louisiana, 391 U.S. 145, 158 (1968)).
“When a defendant pleads to an offense that does not require proof of
sexual penetration as charged, victim injury points for penetration cannot
be assessed unless the defendant stipulates that penetration occurred or
agrees to inclusion of the points as part of a plea bargain.” Alexis v. State,
258 So. 3d 471, 472–73 (Fla. 4th DCA 2018). Saffold argues that the
factual basis for counts I, IV, and V supported assessing only sexual
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contact points, not sexual penetration points; Saffold does not dispute
counts II and III.
We disagree with Saffold on count I and affirm the inclusion of sexual
penetration points on that count. But we agree in part and reverse the
inclusion of the sexual penetration points on counts IV and V; the trial
court should impose sexual contact points for these counts. We also find
this error was not harmless, as the record does not show the court would
have imposed the same sentence with a corrected scoresheet. See Harmon
v. State, 284 So. 3d 1080, 1081 (Fla. 4th DCA 2019) (“Under the ‘would-
have-been-imposed’ test, scoresheet error is considered harmless if the
record conclusively shows that the trial court would have imposed the
same sentence using a correct scoresheet.” (quoting Ray v. State, 987 So.
2d 155, 156 (Fla. 1st DCA 2008))). On remand, the court must resentence
Saffold on these counts.
iii. The Downward Departure Motion
Next, Saffold argues the court erred when it denied his motion for
downward departure that was based on amenability to treatment for his
bipolar disorder. See § 921.0026(2)(d), Fla. Stat. (2019). On this issue,
we reverse in part.
We conduct a two-part review when reviewing the court’s denial of a
request for a downward departure. Green v. State, 257 So. 3d 474, 475
(Fla. 4th DCA 2018). First, we determine “whether competent substantial
evidence supports the trial court’s finding as to ‘whether there is a valid
legal ground and adequate factual support for that ground.’” Id. (quoting
Kovalsky v. State, 220 So. 3d 1192, 1194 (Fla. 4th DCA 2017)). Second,
we determine “whether the trial court abused its discretion in determining
that it should not depart.” Id. (quoting Kovalsky, 220 So. 3d at 1194).
When it denied the motion for downward departure, the court stated
that it did “not believe” that Saffold was amenable to treatment and that
Saffold had “done absolutely nothing to obtain treatment.” For a court to
find a “defendant is amenable to treatment, ‘[t]here must be evidence that
there is a reasonable possibility that such treatment will be successful.’”
Green, 257 So. 3d at 475 (alteration in original) (quoting State v. Hillhouse,
708 So. 2d 326, 327 (Fla. 2d DCA 1998)).
The uncontroverted evidence shows Saffold acted to obtain treatment
before and after the crimes. Saffold sought assistance through his
employer’s employee assistance program; found a couple of psychiatrists
and saw one regularly; and took medication that was working until he was
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jailed. Once jailed at a facility that did not offer the medication, Saffold
sought other medications that he took until stopping due to negative side
effects.
These are some of the record facts showing that Saffold did not do
“absolutely nothing to obtain treatment.” It is unclear whether the trial
court was aware of the correct rule about amenability given its comment
that Saffold had done nothing to obtain treatment. As a result, we reverse
the court’s denial of the motion for reconsideration of the downward
departure motion on that ground.
iv. Conclusion
We affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
CIKLIN, FORST and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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