STATE OF FLORIDA, APPELLANT,
v.
JOHN EARL HARRELL, APPELLEE
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PER CURIAM.
The state appeals the appellant’s sentence of one year of community control followed by two years’ probation, which was the result of a court-induced plea. The appellant pleaded guilty to a lewd and lascivious act in the presence of a child under sixteen under section 800.04(3), Florida Statutes (1995), in exchange for a sentence of substantial departure. We reverse and remand for resentencing within the guidelines.
The record reflects that the act committed December 2,1995, was consensual on the part of the fifteen-year-old victim. The appellant’s score fell within the range of 91.8 to 153 months in prison. The court departed downward, giving the victim’s consent as its reason. The victim’s consent, however, does not constitute a valid reason for departure. See State v. Scaife, 676 So. 2d 1035 (Fla. 5th DCA 1996); State v. Smith, 668 So. 2d 639 (Fla. 5th DCA 1996). Because the sentence resulted from an agreement between the court and the appellant, the appellant should be permitted to withdraw his plea on remand. See State v. Cohen, 667 So. 2d 438 (Fla. 2d DCA 1996).
Reversed and remanded with directions.
FRANK, A.C.J., and LAZZARA and NORTHCUTT, JJ., concur.
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State v. Rife, 789 So. 2d 288 (Fla. 2001)…curs. . In reliance on the Fifth District’s opinion in Smith, the Second District has held that, as a matter of law, the consent of a minor victim can never constitute a valid reason for imposing a downward departure sentence. See State v. Harrell, 691 So. 2d 46 (Fla. 2d DCA 1997). See also State v. Hoffman, 745 So. 2d 985 (Fla. 2d DCA 1999); State v. Whiting, 711 So. 2d 1212 (Fla. 2d DCA 1998). In State v. Stalvey, 25 Fla. L. Weekly D961, — So. 2d —, 2000 WL 370269 (Fla. 1st DCA Apr. 12, 2000), petition fo…
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State v. Darron K. Whiting, 711 So. 2d 1212 (Fla. 2d DCA 1998)…the victim’s family, as well as his own. He did not otherwise express any regret as to his actual conduct, nor did he acknowledge any wrongdoing. Consent is also not an appropriate mitigating factor under these circumstances. See State v. Harrell, 691 So. 2d 46 (Fla. 2d DCA 1997). See also State v. Scaife, 676 So. 2d 1035 (Fla. 5th DCA 1996); State v. Smith, 668 So. 2d 639 (Fla. 5th DCA 1996); State v. Johns, 576 So. 2d 1332,1335 (Fla. 5th DCA 1991)(suggesting that a person in a position of trust and autho…
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Knox v. State, 814 So. 2d 1185 (Fla. 2d DCA 2002)…ate to sentence Knox within the guidelines. The court also believed that based on existing precedent in the Second District, State v. Hoffman, 745 So. 2d 985 (Fla. 2d DCA 1999); State v. Whiting, 711 So. 2d 1212 (Fla. 2d DCA 1998); State v. Harrell, 691 So. 2d 46 (Fla. 2d DCA 1997), victim consent was not a valid reason for departure. The trial court, however, made it clear, and expressly stated that it wanted the record to reflect, that if victim consent were ruled to be a valid reason for departure, it wou…
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- State v. Cohen, 667 So. 2d 438 (Fla. 2d DCA 1996)
- State v. Smith, 668 So. 2d 639 (Fla. 5th DCA 1996)
- State v. Antoine Scaife, 676 So. 2d 1035 (Fla. 5th DCA 1996)