WILLIAM T. WATSON vs STATE OF FLORIDA

Daytona Beach, FL - Criminal defense attorney represented William Watson with appealing the denial of his request for a downward departure sentence, contending that the trial court failed to consider the victim as a willing participant.

Watson was twenty-five years old when he engaged in a sexual

relationship with his fifteen-year-old stepsister. Their relationship resulted in

the stepsister becoming pregnant. Watson was charged with and entered a

plea to child abuse by impregnation, a third-degree felony.

At sentencing, the victim testified that she voluntarily engaged in the

sexual relationship and did not want Watson incarcerated. The trial court, in

rejecting a downward departure sentence, focused on the fact that a fifteenyear-old could not consent to sexual activity:

TRIAL COURT: You do agree that a victim of the age

of 15 legally cannot consent, correct?

COUNSEL: Your Honor,—

TRIAL COURT: Correct? That's a correct statement

of law?

COUNSEL: It's certainly no defense, the victim

consents, and I don't personally believe that. But

there have been cases in which underage victims

have, according to the courts, have been allowed to

say they consented to things, even if I personally find

that—

TRIAL COURT: I'm not saying that it's—the law is set

forth that way, and it recognizes that a minor cannot 3

consent to sexual activity, correct? It places the

responsibility on the adult?

COUNSEL: I would entirely agree, Your Honor.

TRIAL COURT: Okay. All right, anything else you

want to tell me.

COUNSEL: I would say that while, legally, she can't

consent, she does identify herself as a willing

participant in this.

TRIAL COURT: Yeah, and I understand that, and I

heard her testimony.

In imposing a sentence of 81.15 months, the trial court stated:

I do not find the downward departure reason of the

victim consenting to be adequate or appropriate,

under the circumstances. Therefore, I feel bound to

sentence you to the lowest permissible sentence in

the guidelines. I should say I feel bound to, within the

law, sentence you, pursuant to the sentencing

guidelines.

Watson is correct that while a minor's consent is not a defense to

crimes of a sexual nature, a trial court may impose a downward departure

from the sentencing guidelines under such circumstances. Section

921.0026(2)(f), Florida Statutes (2017), allows for mitigation from the

sentencing guidelines where the victim was an initiator, willing participant,

aggressor, or provoker of the incident. The Florida Supreme Court has held

that even in cases where the victim is a minor, "trial judges are not prohibited

as a matter of law from imposing a downward departure based on a finding 4

that '[t]he victim was an initiator, willing participant, aggressor, or provoker of

the incident.'” State v. Rife, 789 So. 2d 288, 296 (Fla. 2001) (quoting §

921.0016(4)(f), Fla. Stat. (1997)).

The two-step process required of the trial court in determining the

appropriateness of a downward departure was set out in Banks v. State, 732

So. 2d 1065 (Fla. 1999). First, the trial court must determine whether there

is a valid legal and factual basis for a downward departure, and second,

whether the case is appropriate for a departure sentence. Banks, 732 So. 2d

at 1067–68. A trial court's determination under the first prong will be

sustained if it applied the correct rule of law and competent substantial

evidence supports its ruling, whereas the second prong is reviewed for an

abuse of discretion. Id.

For purposes of appellate review, it is helpful if trial courts make

findings as to each of the two prongs. Had the trial court done so in this case,

it would have avoided the ambiguity present in the above-quoted remarks.

Watson's argument that the trial court did not recognize its authority to

downward depart based upon the victim's acknowledged willing participation

centers on the trial court's remarks as to the unavailability of consent as a

legal defense under the facts of this case. 5

The trial court fully understood the acknowledgment of a fifteen-yearold child that she willingly participated in the sexual relationship with her

twenty-five-year-old step-brother. Nonetheless, the court went on to find that

Watson's taking advantage of the victim's consent was not appropriate under

the circumstances of the case. Accordingly, even if the court did not

recognize its authority to depart, the court's remarks make it clear that it

would have not exercised its discretion to depart under the facts of this case.

See Kezal v. State, 42 So. 3d 252 (Fla. 2d DCA 2010) (holding that even

though trial court imposed sentence under mistaken impression that

mitigator concerning capacity to appreciate the criminal nature of the conduct

did not apply to driving under the influence (DUI) manslaughter and DUI with

serious bodily injury to another, vacatur of sentence and remand for

resentencing was not necessary, where trial court's remarks at sentencing

made it clear that, in any event, it would not have exercised its discretion to

depart under the facts of the case based on diminished capacity).

That decision, not to depart, is discretionary under the second prong

of Banks. We find no abuse of discretion in that determination. "[I]t is indeed

the rare case involving a youthful victim of a sexual crime that would support

a downward departure sentence.” Rife, 789 So. 2d at 296 (citing State v.

Rife, 733 So. 2d 541, 544 (Fla. 5th DCA 1999)).

AFFIRMED