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State v. Sisco

Florida Court of Appeals, Third District

May 30, 2018

The State of Florida, Appellant,
Kristina Sisco, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Monroe County, Lower Tribunal No.15-448-BK Mark H. Jones, Judge.

          Pamela Jo Bondi, Attorney General, and Eric J. Eves, Assistant Attorney General, for appellant.

          Carlos J. Martinez, Public Defender, and Harvey J. Sepler and Shannon Hemmendinger, Assistant Public Defenders, for appellee.

          Before ROTHENBERG, C.J., and FERNANDEZ, and LUCK, JJ.


         The State appeals the trial court's downward departure sentence, which ordered the defendant, Kristina Sisco, to serve six months in prison, then fifteen months of community control, followed by five years of probation, instead of twenty-one months in prison for her conviction for burglary of a dwelling. We affirm, finding sufficient evidence in the record to support the trial court's decision not to impose a guidelines sentence, as well as the trial court's determination that there was "domination, " according to section 921.0026(2)(g), Florida Statutes (2015).

         Sisco was charged in the amended information with burglary of a dwelling. At trial, she admitted that she was guilty of trespassing, but that she had no part in the commission of the burglary of the dwelling. She claimed the crime was committed by her boyfriend at the time, Daniel Rodriguez, who stayed with her at the dwelling in question.

         The evidence at trial revealed that thirty-six-year-old Sisco was the housekeeper/groundskeeper of a home in Key West in Monroe County, Florida, owned by Mr. John and Mrs. Nancye Buckner. The couple lived part of the year in Kentucky and part of the year in their second home in Key West. The Buckners hired Sisco to watch over their Key West home whenever they were away and to take care of their dog when they were in town. Sisco had worked for the Buckners for over eight years without any problems and did not have a criminal record.

         In April 2015, Mrs. Buckner left Key West to join her husband in Kentucky and once again hired Sisco to watch the house while she and her husband were away. Mrs. Buckner left Sisco a key to get in the house but told her she was not authorized to sleep at the house. Sisco's boyfriend at the time, co-defendant Daniel Rodriguez, was a convicted felon who was also a drug addict. Rodriguez pressured Sisco into allowing him to sleep at the house and convinced her to stay there with him while the Buckners were away.

         While at the house, Rodriguez took property from the house and pawned it. He also took a check from Sisco, without her knowledge, and two checks from the Buckners and tried to pass off the forged checks. Although Rodriguez, who was already convicted of the theft, testified that Sisco played no role in taking any of the property from the house, the jury found Sisco guilty of burglary of a dwelling.

         After the trial, at Sisco's sentencing hearing, the defense sought a downward departure because Sisco did not have any prior criminal record, conducted the burglary in an unsophisticated manner, and showed remorse for the crime. Sisco's mother testified at the sentencing hearing that she lives with her husband of forty-two years and her elderly parents in a rented apartment. Sisco's son, a teenager at the time of the sentencing, was in the custody of her brother. Sisco's mother explained that because she is disabled, she decided it was best for Sisco's son to live with Sisco's brother. She testified that if Sisco got out of jail, Sisco would live with her and be under her authority. Sisco was not living with her mother when the events took place. Sisco's mother and her family moved to Key West from New York in 1995, and Sisco finished high school in Key West in 1997. She told the court that Sisco was never in any trouble during high school, finished high school, and went to work. Sisco's attorney argued that Sisco was a good candidate for probation and had always been employed since graduating from high school.

         The trial court considered the following evidence and testimony that was submitted at trial: the pre-sentence investigation report, Sisco's post-arrest statements made to the police, Sisco's testimony at the sentencing hearing, Sisco's mother's testimony at the sentencing hearing, the defense's motion for downward departure, and the arguments made by the State and the defense. The trial court rejected Sisco's contention that the crime was committed in an unsophisticated manner, that it was an isolated incident, and that she had shown remorse. Instead, the trial court found that Sisco qualified for a downward departure sentence pursuant to section 921.0026(2)(g), Florida Statutes (2015), because Sisco acted "under the domination of another person." The trial court stated:

I sat here. I listened to it. And I am quite convinced by the requisite degree that what does apply here -- let me find it -- is 921.0026(g), the defendant acted under extreme duress. ...

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