STATE v. STALVEY (2000)

The state appeals the sentence Amanda Stalvey received in the wake of her conviction for lewd and lascivious conduct with a fourteen year-old boy in violation of section 800.04(4), Florida Statutes (1997).   The state contends, as a matter of law, a minor cannot be a “willing participant” in such a crime.   See State v. Harrell, 691 So.2d 46 (Fla. 2d DCA 1997);  State v. Scaife, 676 So.2d 1035 (Fla. 5th DCA 1996);  State v. Smith, 668 So.2d 639 (Fla. 5th DCA 1996).   We agree and reverse.

In State v. Rife, the Fifth District relied on section 921.0016(4)(f), Florida Statutes (1995) (allowing downward departure where “[t]he victim was an initiator, willing participant, aggressor, or provoker of the incident”), as authority for a downward departure where the minor victim was a willing participant in several sexual encounters.   See State v. Rife, 733 So.2d 541, 542-43 (Fla. 5th DCA) (en banc) (receding from State v. Smith, 668 So.2d 639 (Fla. 5th DCA 1996)), review granted, 744 So.2d 457 (Fla.1999);  see also State v. Brooks, 739 So.2d 1223, 1225 (Fla. 5th DCA) (applying the reasoning of Rife in affirming a downward departure sentence for a conviction under section 800.04), review granted sub nom., State v. Rife, 744 So.2d 457 (Fla.1999);  cf.  State v. Johns, 576 So.2d 1332, 1336 (Fla. 5th DCA 1991).   We reject the Rife court's approach and adopt the view expressed in State v. Harrell, 691 So.2d 46 (Fla. 2d DCA 1997).   There the Second District, relying on Scaife and Smith, held that willing participation cannot be a basis for downward departure in cases arising under section 800.04.   See also State v. Hoffman, 745 So.2d 985, 986-87 (Fla. 2d DCA 1999);  State v. Whiting, 711 So.2d 1212, 1214 (Fla. 2d DCA 1998).   Accordingly, we certify conflict with Rife and Brooks.

REVERSED and REMANDED.

Granting Amanda Stalvey's motion for mitigation under Florida Rule of Criminal Procedure 3.800(c), the trial court departed downward from the guideline sentence for reasons set out in writing as follows:

[U]nder Defendant's guidelines, a prison sentence is mandatory in the absence of statutory mitigating factors.   The Court recognizes that consent is not a lawful defense to the offense charged;  however, the fact that the victim was a willing participant is a statutory mitigating factor.

The Court finds that this statutory mitigating factor was established by a preponderance of the evidence.   According to Defendant, the victim made sexual advances towards Defendant.   The Court declines to find that the victim was the instigator of the sexual relationship between the victim and Defendant;  however, the Court notes that the sexual encounters took place in Defendant's home on at least fifteen occasions.   There is no evidence that the victim was compelled to go to Defendant's home or was there under any other pretense or duress initiating from Defendant.

The Court in no way condones Defendant's conduct, or suggests that the victim is any way to blame for what happened to him.   Defendant recognizes in her motion that she exercised extremely poor judgment, and the Court agrees;  however, the Court finds that the original sentence imposed is unduly harsh in light of the fact that the victim was a willing participant.

Under the view set out in State v. Rife, 733 So.2d 541, 542-43 (Fla. 5th DCA) (en banc), review granted, 744 So.2d 457 (Fla.1999), I would affirm.

PER CURIAM.

MINER and BROWNING, JJ., CONCUR;  BENTON, J., DISSENTS WITH WRITTEN OPINION.