
    Gregory Dean HOLLAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4363.
    District Court of Appeal of Florida, Second District.
    March 2, 2007.
    Rehearing Denied April 17, 2007.
    
      Stephen M. Grogoza, Naples, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Gregory Dean Holland appeals his judgments and sentences for nine counts of lewd or lascivious battery on a child twelve years of age or older, but less than sixteen. We affirm the judgments, but reverse the sentences. The trial court incorrectly concluded that it had no discretion to impose a downward departure sentence in this case. Although the trial court had the option not to exercise its discretion, it did have discretion to impose a downward departure sentence. We are not certain whether the trial court would have exercised discretion to impose a lower sentence if it had appreciated that it had this authority. Accordingly, we reverse the sentences to give the trial court an opportunity to exercise such discretion if it so chooses.

J.D. was twelve years old in 2001 and living in Lee County, Florida, when he logged onto an instant messaging chat room on the Internet. He identified himself as “12 male Florida.” Mr. Holland was a twenty-four-year-old college graduate working for a large computer corporation in Texas. He responded to J.D.’s message. The child and the young man established a relationship over the Internet, and Mr. Holland gave his telephone number to J.D. J.D. called Mr. Holland, and eventually Mr. Holland came to visit J.D. in Florida during the summer of 2001. During this first visit, the two of them engaged in mutual oral sex. Over the course of their relationship on at least four occasions, they engaged in mutual oral sex. For each of these four occasions, Mr. Holland was charged with two counts of lewd or lascivious battery — one count for oral sex performed by the juvenile on Mr. Holland and one count for oral sex performed by Mr. Holland on the juvenile. See § 800.04(4)(a), Fla. Stat. (2001-2003). Finally, in 2003 when J.D. was fourteen, the juvenile penetrated Mr. Holland’s anus with his penis. This resulted in a final count of lewd or lascivious battery.

Mr. Holland was convicted of all nine counts of lewd or lascivious battery. We affirm these convictions without further comment.

Lewd and lascivious battery under the criminal punishment code is a level 8 offense. The primary offense scores 74 points and the eight additional offenses score 296 points. Because all nine offenses involved sexual penetration, an additional 80 points was added for each offense, totaling 720 points for victim injury. Thus, although Mr. Holland had no prior offenses, the points on the scoresheet totaled 1090 points and the lowest permissible prison sentence was 796.5 months’ or 66.3 years’ incarceration for this collection of second-degree felonies. We agree with Judge Stringer that even if this score seems disproportionately high, that is not a valid basis for a downward departure sentence. This high score, however, creates a circumstance in which there is, merely as a matter of mathematics, a much larger range of discretion in which to apply a downward departure sentence than exists in the case of most first-time offenders facing convictions for second-degree felonies.

At sentencing, Mr. Holland argued that the trial court should consider a downward departure sentence because although the young boy could not legally consent to the sexual activity, factually he had been an initiator and willing participant in the illegal conduct. Mr. Holland relied on State v. Rife, 789 So.2d 288 (Fla.2001), which involved numerous acts of heterosexual conduct between an adult defendant and a seventeen-year-old female victim.

The trial court reviewed Rife and then expressed its opinion that the supreme court would not reach the same result in a case involving a twelve-year-old victim. Twice the trial court judge stated that the law did not give a judge discretion to impose a downward departure sentence under these circumstances. Ultimately, the trial judge stated: “I will sentence the defendant to the bottom of the guidelines based upon the evidence that I’ve heard. What I might have done and [what] I would do if things were different, it’s not for me to decide here.” The trial court sentenced Holland to 66.3 years’ incarceration, followed by lifetime probation.

The reasoning employed by the supreme court in Rife does not restrict its holding to eases involving victims who are approaching legal age. The relevant statute allows the trial court to use as a mitigating circumstance a finding that “the victim was an initiator, willing participant, aggressor, or provoker of the incident.” § 921.0016(4)(f), Fla. Stat. (2001-2003). Because the statute does not exempt cases in which the victim is a child, it applies in this case. Accordingly, the trial court had discretion to decide whether to impose a downward departure sentence.

Affirmed in part, reversed in part, and remanded.

WALLACE, J., Concurs.

STRINGER, J. Concurs specially with opinion.

STRINGER, Judge,

Concurring specially.

I concur in both the decision to affirm Mr. Holland’s convictions and in the decision to reverse Mr. Holland’s 66.3-year prison sentence. I write to emphasize that this court does not intend to minimize the seriousness of Mr. Holland’s offenses against the young victim in this case. I also suggest that the imposition of a downward departure sentence may be difficult in lewd and lascivious battery cases such as this.

I understand the temptation for the trial court to consider imposing a downward departure sentence in a case like Mr. Holland’s to ensure that the punishment is proportionate to the degree of the offense designated by the legislature. The offense of lewd and lascivious battery on a child between twelve and sixteen years of age is a second-degree felony, which is subject to a statutory maximum sentence of fifteen years in prison. §§ 775.082(3)(c), 800.04(4)(a), Fla. Stat. (2001-2003). However, under the Criminal Punishment Code, the imposition of victim injury points for penetration may result in a sentence that far exceeds the statutory maximum. When the lowest permissible sentence under the Code exceeds the statutory maximum, the trial eourt must impose the sentence required by the Code unless the court has a valid reason to impose a downward departure sentence. §§ 921.0024(2), .0026, Fla. Stat. (2001-2003).

In this case, although Mr. Holland committed a second-degree felony, he was subject to a sentence of between 66.3 years and life in prison unless the court departed downward. Mr. Holland’s minimum sentence exceeds the maximum sentence he would have faced had he committed many first-degree felonies, including murder. Thus, if a trial court were to impose a downward departure sentence in a case like Mr. Holland’s, it would ensure that the punishment was proportionate to the degree of the offense when compared to crimes that the legislature has designated as a higher degree. However, this is not a valid statutory basis for departure. See § 921.0026.

The statutory basis for a downward departure at issue in this case is that “[t]he victim was an initiator, willing participant, aggressor, or provoker of the incident.” § 921.0026(2)(f). I agree with the majority that the supreme court’s decision in State v. Rife, 789 So.2d 288 (Fla.2001), applying this statutory basis for downward departure is not restricted to victims who are approaching legal age. However, I seriously doubt that the twelve-year-old child victim could be construed as a “willing participant” in a “relationship” with a man twice his age. Mr. Holland solicited the child on the internet, engendered the child’s trust, and then took advantage of this trust by arranging for secret meetings with the child in motel rooms near the child’s home. Of course, whether the child’s participation in sexual acts during these secret meetings rendered him a “willing participant” in the ineident[s] is an issue for resolution by the trial court. 
      
      . During the sentencing hearing, the trial court did not explain on the record how the 66.3 years of incarceration was to be allocated among the nine offenses. The written sentences for each of these second-degree felonies impose nine identical concurrent terms.
     
      
      . We note that since the supreme court's decision in Rife, the legislature has not amended the statute to prevent its application to minors or to children younger than some specified age.
     