
    Willie JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 93-1219.
    District Court of Appeal of Florida, Fifth District.
    April 22, 1994.
    James B. Gibson, Public Defender and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.
   THOMPSON, Judge.

Willie Johnson entered a plea of nolo con-tendere to the offense of committing a lewd, lascivious or indecent assault on a child under the age of 16, without committing a sexual battery. Johnson was adjudicated guilty and was placed into one year’s community control, to be followed by one year on probation. This sentence was a downward departure that had been agreed to by the state and defense. Johnson entered a plea of nolo contendere to appeal the constitutionality of the statute. We affirm his conviction and sentence. This court has previously upheld the constitutionality of section 800.04. We again certify to the Florida Supreme Court the same issue which we certified in Jones v. State, 619 So.2d 418 (Fla. 5th DCA), rev. granted, 629 So.2d 133 (Fla.1993), namely, whether the constitutional right to privacy renders unconstitutional that portion of section 800.04 which provides that consent is not a defense to a prosecution for sexual activity with a minor under the age of sixteen.

AFFIRMED.

HARRIS, C.J., and GOSHORN, J., concur. 
      
      . § 800.04(3), Fla.Stat. (1991).
     