State v. Harrell

691 So. 2d 46 (1997)

STATE of Florida, Appellant,
v.
John Earl HARRELL, Appellee.

No. 96-02038.

District Court of Appeal of Florida, Second District.

April 9, 1997.

Robert A. Butterworth, Attorney General, Tallahassee, and Tracy L. Martinell, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellee.

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.