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Geliga v. State

Florida Court of Appeals, Fourth District

October 16, 2019

TIFFANY MICHELLE GELIGA, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562017CF001358AXXXX.

          Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

          Ashley Moody, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.

          WARNER, J.

         Appellant challenges her sentence after a no contest plea. She sought a downward departure based upon her mental disorder, but the trial court declined to depart. We reverse, because the court erroneously concluded that her mental condition must be connected to the criminal behavior in order to constitute a ground for departure.

         Appellant pled no contest to one count of engaging in sexual activity with a minor who was sixteen or seventeen at the time of the offense. She was a teacher at a college where she met the victim. He was a high school student in a dual enrollment program at the college. At sentencing, she sought a downward departure sentence under section 921.0026(2)(d), Florida Statutes (2018), which provides that mitigating circumstances exist where "The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction . . . and the defendant is amenable to treatment." Appellant has such a disorder. Appellant had been the victim of childhood abuse, the details of which were part of a confidential sentencing report available to the court.[1] She was continually treated for emotional problems.

         Her current mental health counselor testified at the sentencing hearing. She was treating appellant for bipolar disorder, including hypersexual behaviors which were part of the disorder. Appellant had made progress, and the therapist was confident that she would continue to make progress if she continued her path of treatment. The mental health counselor testified that she believed there is a relationship between the childhood trauma, appellant's bipolar disorder, and her recent behaviors. Asked by the court what connection there was, the therapist explained that the childhood trauma, combined with the bipolar disorder, impacts appellant's current functioning.

         After appellant testified, the court denied the motion for downward departure. Specifically, the court stated:

There were two possible mitigators. One is the mental health issue and the other one might have been the -- that the victim was a willing participant, but I didn't really hear evidence of that fact. And I'm not convinced that I see the connection between the mental health and the conduct. So I don't think there are grounds to depart.

(emphasis added) The court imposed a sentence of sixty-six months, the lowest permissible sentence under the Criminal Punishment Code, and two years of sex offender program. The court expressed regret at having to impose this sentence.

         Subsequently, appellant filed a Florida Rule of Criminal Procedure 3.800(b) motion to correct sentence in which she argued that the trial judge had erroneously believed that the mental disorder had to be related to the criminal behavior. The motion was denied. She appeals the sentence.

         In Banks v. State, 732 So.2d 1065, 1067-68 (Fla. 1999), the court described the two part process the trial court goes through on a motion for downward departure sentence:

First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1). Legal grounds are set forth in case law and statute, and facts supporting the ground must be proved at trial by "a preponderance of the evidence." This aspect of the court's decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling. Competent substantial evidence is ...

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