       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          EDDIE ISAAC BEAN,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D17-2419

                            [January 9, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Laura S. Johnson, Judge; L.T. Case No. 50-2015-CF-
002474-AXXX-MB.

  Carey Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Brooke Moody, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for
appellee.

WARNER, J.

    Appellant challenges his sentence imposed after his plea to multiple
charges. He raises three issues. First, he contends that the trial court
erred in sentencing him based upon an incorrect scoresheet that included
points for “slight victim injury” where there was insufficient evidence of
such injury. Based upon the evidence and entire circumstances of the
case, we conclude that the inclusion of these points was not error. Second,
he argues that a jury should have made the determination of whether
“slight victim injury” occurred, based upon Alleyne v. United States, 133
S. Ct. 2151 (2013), which requires a jury to make any factual finding
increasing the mandatory minimum sentence for a defendant. In this
case, however, no mandatory minimum is involved. Therefore, Alleyne
does not apply. Third, he challenges the costs imposed, and the State
concedes that the costs judgment is not supported by the record. We
therefore affirm as to the sentence but reverse as to the costs and remand
for a new hearing.
    In 2015, appellant was charged by information with various crimes
related to a bank robbery in Palm Beach County. Appellant forced six
bank tellers into the bank’s vault room at gunpoint, hit each of the tellers
over the head with a gun, made them strip their clothes, and sexually
assaulted one of the tellers. When appellant attempted to flee the scene,
he shot at a law enforcement officer. Appellant was injured and was found
with over $60,000 in cash next to him. The State charged him with
fourteen counts, including: attempted first degree murder with a firearm
of a LEO; sexual battery; five counts of kidnapping with a firearm; six
counts of aggravated battery with a firearm; and aggravated assault with
a firearm. The six counts of aggravated battery with a firearm relate to the
six victims that appellant intentionally struck during the bank robbery.

    Appellant pled guilty to all of the charges. Following the plea hearing,
appellant moved for a downward departure sentence, arguing that his
offense was committed in an unsophisticated manner and was an isolated
incident for which he had shown remorse. He admitted that he hit
“several” employees with a firearm. Appellant claimed that he pled guilty
to the charges “to take responsibility for his actions and not place more
emotional trauma on the tellers by forcing them to testify before a jury.”

    At the sentencing hearing, the prosecutor explained that the various
victims would not be giving input as to a sentence because they had been
terrified by the appellant. Defense counsel offered witnesses in support of
the motion for downward departure, but the State objected to any
departure. It noted the sadistic nature of the robbery, arguing that
appellant was not entitled to a downward departure because he denied the
acts related to the sexual battery. The State stressed how appellant shot
at a LEO, pistol-whipped “many” of the bank employees, and forced the
women to strip. It asked for the court to impose the maximum sentences
for the crimes. The court declined to downwardly depart, finding that the
crimes were aggravated and involved physical and sexual violence.
Appellant’s scoresheet showed 1,132.80 total sentencing points, with a
lowest permissible sentence of 828.60 months. 1 His maximum possible
sentence was life in prison.

   The court sentenced appellant to concurrent sentences of 827.25
months for the counts of attempted murder, sexual battery, and
kidnapping. It imposed concurrent fifteen-year sentences for the six
charges of aggravated battery with a firearm, as well as a five-year sentence

1 The scoresheet in the record shows an LPS of 828.60, but at sentencing both
the court and counsel referred to the LPS as 827.25 months. That is the sentence
which was imposed. There appears no explanation in the record for the difference.

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for the charge of aggravated assault with a firearm. The attempted murder
conviction carried a minimum mandatory sentence of twenty years, and
the kidnapping and aggravated battery charges all included a ten-year
mandatory minimum sentence for use of the firearm. The court also
entered an order on costs to be imposed on all cases, as appellant was also
sentenced for a related case involving grand theft. These included $3,080
and $4,146 for criminal domestic violence and rape crisis costs.

    Appellant timely appealed his sentences in the underlying case. Prior
to filing his initial brief, appellant filed a Florida Rule of Criminal Procedure
3.800(b)(2) motion to correct sentencing error. Appellant raised two issues
regarding scoresheet errors and the costs imposed by the court. First,
appellant noted that his sentencing scoresheet shows 1,132.80 total
points, including twenty-four points for slight victim injury, presumably
for the six counts of aggravated battery with a firearm (“4 x 6 = 24”).
Appellant contended that inclusion of sixteen of those points was error
because the record showed evidence of physical injury for only two of the
victims. Because the victim injury points raised his minimum sentence,
he was entitled to resentencing. Second, appellant asserted that in the
order assessing charges, costs, and fines, various line items were lump
sums, and the court never indicated upon what statutory authority it
relied to impose the costs.

    The court did not rule on appellant’s rule 3.800(b)(2) motion, and thus,
it was deemed denied. See Fla. R. Crim. P. 3.800(b)(2)(B).

   Appellant then filed a second rule 3.800(b)(2) motion, arguing that the
court erred by increasing his sentence based on the victim injury points.
He contended that when a court relies on a fact that increases a
defendant’s sentence, the fact must either be submitted to a jury or
admitted by the defendant under Alleyne v. United States, 133 S. Ct. 2151
(2013) and Apprendi v. New Jersey, 530 U.S. 466 (2000).

   The court denied appellant’s motion, agreeing with the State that
appellant consented to judicial factfinding when he pled to all of the
charges. It concluded that there was ample factual support for the twenty-
four victim injury points, including testimony at the sentencing hearing.
After the denial, appellant filed his brief.

   Florida Rule of Criminal Procedure 3.704(d)(9) states that a court scores
for “victim injury” when there is “physical injury or death suffered by a
person as a direct result of any offense pending before the court for
sentencing.” Points for victim injury “must be scored for each victim
physically injured and for each offense resulting in physical injury whether

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there are one or more victims” for all offenses for which the defendant has
been convicted. Id.; see Fla. R. Crim. P. 3.703(d)(9). Sections 921.0021(7)
and 921.0024, Florida Statutes, provide for different amounts of injury
points depending on whether the victim’s injury is severe, moderate, or
slight. See § 921.0021(7)(a), Fla. Stat. (“‘Victim Injury’ means the physical
injury or death suffered by a person as a direct result of the primary
offense, or any additional offense, for which an offender is convicted and
which is pending before the court for sentencing at the time of the primary
offense.”); see § 921.0024, Fla. Stat. (allowing for the addition of victim
injury points to a defendant’s scoresheet under the CPC).

   A trial court’s assessment of victim injury points is reviewed for an
abuse of discretion. Poole v. State, 753 So. 2d 698, 698 (Fla. 4th DCA
2000). If there is competent substantial evidence to support the findings,
the court’s assessment of victim injury points will be upheld. See Hall v.
State, 598 So. 2d 230, 231 (Fla. 2d DCA 1992).

    In this case, the parties never addressed the specific issue of the scoring
of the injury points at the sentencing hearing. However, in the plea
agreement, appellant acknowledged his minimum sentence based upon
his score, which included the slight injury points. Furthermore, without
objection, the prosecutor informed the court that the six tellers were
“pistol-whipped” or beaten with a gun. This was confirmed by all of the
victims’ statements and admitted by the appellant in his motion for
downward departure. Also, the record shows that three of the victims were
transported to the hospital for attention to their injuries. This is not like
cases in which a victim was kicked but denied injury. See, e.g., Mincey v.
State, 468 So. 2d 473 (Fla. 4th DCA 1985) (finding defendant was entitled
to recomputation of scoresheet regarding points for slight victim injury
where defendant kicked police officers, but they testified that they were
not injured). Here, there was no denial of injury. Further, the appellant
specifically stated that part of his reason for pleading guilty was to spare
the victims from testifying and to not further traumatize them. He can
hardly complain that there is insufficient evidence of slight injury to the
victims when he affirmatively expressed his intent not to require them to
testify. Given the fact that all of the victims were beaten with a gun, the
trial court was within its discretion in concluding that at least slight injury
occurred.

   Alternatively, appellant contends that the court violated his Sixth
Amendment rights by assessing points for victim injury without
submitting that fact to the jury for determination, relying on Alleyne v.
United States, 133 S. Ct. 2151 (2013). In Alleyne, the Supreme Court held
that any fact which increases a defendant’s mandatory minimum sentence

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must be submitted to a jury and found beyond a reasonable doubt. Id. at
2158. Alleyne does not apply to this case because it does not involve a
fact which increased a mandatory minimum sentence. The scoring of
victim injury points establishes the lowest permissible sentence pursuant
to the Criminal Punishment Code, but it is not a fact which increases a
mandatory minimum sentence. See Williams v. State, 143 So. 3d 423 (Fla.
1st DCA 2014). As appellant pled guilty and accepted the lowest
permissible sentence in his plea agreement, calculated using the victim
injury points, he accepted the judicial factfinding involved in his sentence.
See Blakely v. Washington, 542 U.S. 296, 310 (2004) (“When a defendant
pleads guilty, the State is free to seek judicial sentence enhancements so
long as the defendant either stipulates to the relevant facts or consents to
judicial factfinding.”).

    Finally, the State concedes that the costs imposed of $3,080.00 (for
“Criminal Domestic Violence/Rape Crisis Costs CT/MM/CF”) and
$4,146.00 (for “Criminal Domestic/Rape/Child Adv Costs/FDLE CF”)
must be reversed and remanded to determine on what statutory authority
the costs were based. See Keel v. State, 134 So. 3d 1005, 1007 (Fla. 1st
DCA 2012) (“A trial court errs when it fails to delineate its statutory
authority for each discretionary fine or cost imposition, as it denies the
defendant the right to be heard.”). We thus remand for further proceedings
for the trial court to correct the cost judgment by providing a breakdown
of the costs and their statutory authority.

   Affirmed in part; reversed in part and remanded for proceedings
consistent with this opinion.

DAMOORGIAN and KUNTZ, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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