DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

TIFFANY MICHELLE GELIGA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D18-1984

[October 16, 2019]

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 
2

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:

 

1 At the sentencing hearing, the judge admitted that he had read some, but not 

all, of the documents submitted. As we are reversing for a new sentencing 

hearing, any sentencing judge needs to read all of the documentation of the 

defendant’s prior history of mental disorder before making a determination on 

the sentence. 
3

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 tantamount to legally 

sufficient evidence, and the appellate court will assess the 

record evidence for its sufficiency only, not its weight. 

Second, where the step 1 requirements are met, the trial court 

further must determine whether it should depart, i.e., whether 

departure is indeed the best sentencing option for the 

defendant in the pending case. In making this determination 

(step 2), the court must weigh the totality of the circumstances 

in the case, including aggravating and mitigating factors. This 

second aspect of the decision to depart is a judgment call 

within the sound discretion of the court and will be sustained 

on review absent an abuse of discretion. Discretion is abused 

only where no reasonable person would agree with the trial 

court's decision. 

(footnotes omitted.) The issue in this case involves Step 1 — whether there 

is a valid ground to depart. In this case, the court erred in concluding that 

the mental disorder must be connected to the criminal behavior in order 

to constitute a ground for departure.

Section 921.0026(2)(d) provides that a mitigating circumstance, for 

which a court may order a downward departure, is that “[t]he defendant 

requires specialized treatment for a mental disorder that is unrelated to 

substance abuse or addiction or for a physical disability, and the 

defendant is amenable to treatment.” Contrary to the trial court’s belief, 

there is no requirement that a defendant’s mental health issue must have 

a connection to the criminal conduct to be a ground for downward 

departure. To require a connection would add words to the statute, 

contrary to the basic statutory construction principle that courts “are not 

at liberty to add to a statute words that the Legislature itself has not used 

in drafting that statute.” Villanueva v. State, 200 So. 3d 47, 52 (Fla. 2016).

Even if the statute required a connection between the mental disorder 

and the crime, the trial court’s conclusion that no connection was proved 
4

is not supported by the evidence. The only person who testified regarding 

the connection was appellant’s therapist. She testified that there is a 

relationship between appellant’s childhood trauma and her bipolar and 

current behaviors. She testified that appellant’s current behavior is part 

of her bipolar disorder and is related to the criminal behavior. The State 

offered no evidence to the contrary.

Appellant also contends other grounds for downward departure were 

present. Section 921.0026(2)(f), Florida Statutes (2018) provides a 

separate mitigator if “[t]he victim was an initiator, willing participant, 

aggressor or provoker of the incident.” The court mentioned below that 

there was a lack of evidence that the victim was a willing participant. We 

agree that no evidence was presented at the hearing to support this 

ground. No other grounds were proffered at the hearing.

Because the trial court erred as a matter of law in determining that the 

mental health condition for which appellant requires treatment had to be 

connected to the criminal conduct, we reverse and remand for a new 

sentencing hearing.

GROSS and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.