WALKER v. STATE

GRIFFIN, J.

Kenneth J. Walker ["Walker"] appeals his judgment and sentence on two counts of sexual battery on a child by a person in familial or custodial authority and one count of contributing to the delinquency or dependency of a minor. We find no merit to the issues raised by appellant and affirm the convictions. It does appear the state's cross-appeal has merit due to the lower court's reliance on our initial opinions in McCloud v. State, 23 Fla. L. Weekly D2469 (Fla. 5th DCA Nov. 6, 1998), holding that a court could not score penetration points on the sentencing scoresheet unless the jury made a special finding of penetration. This court withdrew that opinion and replaced it with another opinion holding that a defendant is not constitutionally entitled to have a jury make the predicate factual determination of penetration for purposes of scoring victim injury points. McCloud v. State, 741 So.2d 512, 513 (Fla. 5th DCA 1999). Accordingly, we vacate Walker's sentence and remand for addition of another 80 victim injury points for sexual penetration and any concomitant change in his sentence the court may lawfully make. See also Rodarm v. State, 2000 WL 275848 (Fla. 4th DCA Mar. 15, 2000) (penetration need not be found by the jury in order for victim injury points to be assessed).

AFFIRMED.

ANTOON, C.J., and THOMPSON, J., concur.