
    Deshunda S. SHULER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1387.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 2007.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    
      Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Deshunda Shuler (defendant) appeals her sentence which was entered by the trial court after she entered a plea of nolo contendere to committing the crime of engaging in unlawful sexual activity with a minor, in violation of section 794.05(1) of the Florida Statutes (2005). Because the trial court may have misunderstood the parameters of its discretion regarding the entry of a downward departure sentence, we vacate the defendant’s sentence and remand this matter to the trial court for reconsideration.

The order setting forth the defendant’s plea notes that it was an “open plea to the court”. The trial court entered judgment in accordance with the defendant’s plea and then sentenced her to a term of 66 months of incarceration. This appeal timely followed.

The defendant maintains that her sentence should be vacated and this case remanded for reconsideration because the trial court legally erred in failing to recognize that it possessed the legal authority to enter a downward departure sentence based upon the fact that the victim in this case had consented to engaging in sexual activity with her. We agree.

The State argued below that the statutory authority which permits the imposition of a departure sentence in instances where the victim is an “initiator, willing participant, aggressor or provoker of the incident” did not apply in this case since the victim was only 16 years old when the sexual activity started. See § 921.0026(2)(f), Fla. Stat. (2005). Defense counsel responded by arguing that entry of a downward departure sentence would be justified in this case based on the fact that victim was a “willing participant” in the defendant’s crime. The court responded: “Consent is not a defense.”

In State v. Rife, 789 So.2d 288 (Fla.2001), the Florida Supreme Court ruled that trial judges are authorized to impose a downward departure sentence based on a finding that the victim consented to engaging in sexual activity with the defendant. The record indicates that, in imposing sentence on the defendant, the trial court may not have been aware of the law expressed in Rife.

Accordingly, the defendant’s sentence is vacated and this matter is remanded for reconsideration and application of the law as expressed in Rife. See Knox v. State, 814 So.2d 1185 (Fla. 2d DCA 2002)(holding that, on remand for resentencing for engaging in sexual activity with a minor, the trial court was not precluded from considering the victim’s consent as a basis for imposing a downward departure from the sentencing guidelines). Our opinion should not be construed as requiring the imposition of any particular sentence.

Sentence VACATED and case REMANDED.

MONACO, J., concurs.

THOMPSON, J., concurs specially, with opinion.

THOMPSON, J.,

concurring.

The only issue before this court is whether the trial court was aware that it could have departed below the minimum recommended sentence calculated on the appellant’s sentencing guideline score-sheet. Constrained as we are by the holding in State v. Rife, 789 So.2d 288 (Fla.2001), I must concur with my colleagues that the case should be remanded to the learned trial court for “reconsideration and application of the law as expressed in Rife.” Rife holds that a trial court can consider a departure sentence when the victim consented to sexual activity with the defendant. However, but for the trial court’s brief comment that it could not consider victim participation as a reason to depart downward, I would affirm the sentence imposed. From my reading of the record, it appears the trial court considered the factors for departure stated in Rife, but did not so articulate.

In this case, the trial court’s sentence of five and a half years was within the statutory guidelines; it was also the lowest sentence permitted on her scoresheet. The highest possible sentence was 15 years’ incarceration. The trial court heard Shuler testify that she started having sex with the victim when he was 16 years old and she was 29 or 30 years of age. The relationship lasted approximately a year and, as a result, Shuler and the victim have a daughter. The court also heard the victim testify that he met the appellant when he was 10 years old while Shuler was dating his father, by whom she has a son. The victim came to live with Shuler when he moved out of his mother’s home because of family problems. Shuler was a friend of the victim’s family and befriended the victim. The child was on probation, and Shuler appeared with him at hearings and represented that she was the victim’s mother. Also, when the child absconded from a juvenile detention facility, he returned to Shuler’s home.

The victim’s father testified his son is a slow learner who had trouble in school and has a learning disability. The father further testified that he was concerned about his granddaughter because Shuler did not live a stable life, but lived a nomadic life and moved from one friend’s home to another. He concluded that Shuler should be incarcerated because she was not repentant and did not believe she did anything wrong. The victim, now 20, also testified he was concerned about his 10-year-old brother because the same thing could happen to him. During the investigation, the victim told the police that, when the sexual activity occurred, he did not understand what was going on; however, he later understood that Shuler was using him for sexual pleasure and had no real feelings for him. Based upon those facts, it appears the trial court considered the victim’s participation.

Unfortunately, the trial court opined that it could not consider the victim’s participation as a mitigating factor because it was bound to follow the law. Thus, the trial court erred in sentencing. See § 921.0026(2)®, Fla. Stat. (2005). Rife does not mandate that the court depart because the victim participated or because the victim requested a downward departure. It is one factor the court can consider before imposing a sentence. In Rife, the supreme court wrote:

Of course, in determining whether this mitigator applies when the victim is a minor, the trial court must consider the victim’s age and maturity and the totality of the facts and circumstances of the relationship between the defendant and the victim.

Rife, 789 So.2d at 296.

Upon remand, the court can consider the facts presented at the sentencing hearing concerning the victim’s age, maturity, and intellect before entering a sentence that complies with the requirements of Rife. 
      
      . The trial court stated, “[I] cannot find any circumstance or factor that would reasonably justify departure. My hands are tied, as much as I hate it.”
     