5D06-1387 Deshunda Shuler v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D06-1387

Case Date: 01/29/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2007

DESHUNDA S. SHULER, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed February 2, 2007 Appeal from the Circuit Court for Volusia County, James R. Clayton, Judge. 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. Case No. 5D06-1387

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 defe ndant 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

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