Third District Court of Appeal
State of Florida
Opinion filed September 5, 2018.
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No. 3D16-2474
Lower Tribunal No. 15-448-BK
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The State of Florida,
Appellant,
vs.
Kristina Sisco,
Appellee.
An Appeal from the Circuit Court for Monroe County, 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.
FERNANDEZ, J.
ON MOTION FOR REHEARING OR CLARIFICATION
This cause is before us on the State’s Motion for Rehearing or Clarification.
We deny the motion for rehearing and grant the motion for clarification.
Accordingly, the opinion issued on May 30, 2018 is withdrawn, and the following
opinion is substituted in its place.
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
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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-
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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 statement 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:
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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. No. Or under
the domination of another person.
And, frankly, I listened to that trial and I am completely
convinced that the reason this happened after eight years of it not
happening was because of Daniel Rodriguez. And, frankly -- well,
neither here nor there. I’m surprised it wasn’t brought up. But,
nevertheless, as I said, I don’t have to sit here and when I sentence to
be oblivious to evidence that I heard and law that I believe it applies.
Eight years, you’re a loyal trusted employee. You’re working
with these people. You’re going above and beyond the call of duty
and all of a sudden it changes. Why? Because you had a boyfriend.
And my guess is that -- and “guess” maybe isn’t the right word. My
belief is that, you know, this is how should I put this? The father of
your child is no longer in your life. You weren’t going with anybody
else. And all of a sudden you have this man, and he is a criminal, as
we all know, multiple times over. And all of a sudden you are acting
in ways that you’ve never acted before. He was the one who stole
things. He was the one who, according to him, snuck the key or saw
whatever the means of entrance.
So the bottom line is I am fine that this particular ground for
downward departure, that you acted under the domination of another
person, is a ground for downward departure that has been established,
that does apply and it is appropriate and give you a downward
departure sentence.
The trial court later entered a written order explaining the reasons for the
downward departure. The order states, in pertinent part:
1. A ground for downward departure has been proven in this case by
virtue of the evidence presented at trial and during the sentencing
hearing. Specifically, the Court finds that a downward departure is
warranted pursuant to Section 921.0026(1)(g), Florida Statutes in
that the Defendant acted under the domination of another person.
2. The Defendant has no prior criminal history. She worked for the
victim for eight years and acted in an honest, responsible, and
trustworthy manner with respect to their home and property
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throughout that entire period of time. The Court finds that the
burglary of the victims’ home which the Defendant committed in
this case was the product of the Defendant being dominated,
controlled, and manipulated by her new boyfriend and
codefendant, Daniel Rodriguez, a drug addict and multiple time
convicted felon.
The state attorney’s scoresheet calculated that Sisco should be sentenced to
twenty-one months to fifteen years in jail. The trial court sentenced her to six
months in county jail, with credit for time already served, followed by fifteen
months of community control/house arrest, followed by five years of probation.
On appeal, the State argues that the record lacks evidence that Sisco’s
boyfriend “dominated” her. We disagree. The test for the imposition of a
downward departure sentence is:
A downward departure sentence must be supported by valid reasons.
The trial court must first determine whether there is a valid legal basis
for its departure sentence that is supported with facts proven by a
preponderance of the evidence. The trial court’s determination
involves a mixed question of law and fact, and it will be sustained on
review provided the trial court applied the correct rule of law and
competent substantial evidence supports the trial court’s ruling.
The trial court must further determine whether a departure sentence
represents the best sentencing option for the defendant. The trial
court is required to weigh the totality of the circumstances, including
aggravating and mitigating factors. The decision to depart falls within
the sound discretion of the trial court and will be sustained on review
absent an abuse of discretion.
State v. Johnson, 193 So. 3d 32, 34 (Fla. 3d DCA 2016) (citations omitted).
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The trial court did not err in relying on the statutory mitigating circumstance
that Sisco was under the substantial domination of Rodriguez during the burglary
of the dwelling. “A trial court may reject a [defendant's] claim that a mitigating
circumstance has been established provided that the record contains competent,
substantial evidence to support the rejection.” Connor v. State, 803 So. 2d 598, 611
(Fla. 2001). See also Nibert v. State,
574 So. 2d 1059, 1062 (Fla. 1990).
“[W]hether a mitigating factor has been proven by the evidence is a question of
fact subject to the competent substantial evidence standard.” Zack v. State,
753 So.
2d 9, 19 (Fla. 2000).
Based on the record before us, we cannot say the trial court abused its
discretion in sentencing Sisco. The ground the trial court relied on for the departure
is authorized by statute. See § 921.0026(2)(g), Fla. Stat. (2015). Subsection (2)(g)
states: “The defendant acted under extreme duress or under the domination of
another person.” The testimony presented to the trial court showed that Sisco was
the Buckners’ trusted employee for almost eight years. Sisco was their
housekeeper, took care of their pets, did their yardwork, and never had any issues
during the time she was employed by the Buckners. The evidence indicated that
Sisco is the thirty-six-year-old, unmarried mother of a fourteen-year-old boy; she is
a high school graduate; this was her first arrest and has no prior criminal record;
she had always been employed after she graduated from high school; she had the
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support of her parents and brother/sister-in-law, who would provide her and her
son with a home and help after she gets out of jail so that she can take care of her
son again, which is what she wanted to do. The evidence also indicated that Sisco
was not involved with drugs or alcohol, and she was a good candidate for
rehabilitation.
Rodriguez testified at trial that he pressured Sisco to let him stay at the
house. Rodriguez had a long criminal history, was a multiple-time convicted felon,
and was a drug addict who needed to pawn the items he took from the house in
order to buy drugs. Rodriguez testified, “So I brought it upon myself to ask her
about going to stay over there. She was very adamant saying, ‘No, you know, we
shouldn’t stay there. It’s not a good idea.’ And I kept pushing it and pressing the
issue, you know, ‘Just one night; just one night.’ So, basically, I kept pressing the
issue, and she finally agreed, because we were basically getting into an argument
about it.” Rodriguez might not have used the word “demand,” but it was clear there
was no option for Sisco to say no to Rodriguez under the circumstances. The
evidence and testimony in the record reflect that Rodriguez was the primary
motivator of the criminal episode. He played the dominant role in the crime. The
trial court thus found that Sisco acted under the domination of Rodriguez. Based
on the totality of the circumstances, the trial court, in its discretion, believed the
only reason the crimes happened was due to Sisco’s domination at the time of the
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incident by her then boyfriend, Rodriguez. The record contains competent
substantial evidence to make this finding.
Merriam-Webster’s Dictionary defines “domination” as: “1.) Supremacy or
preeminence over another[;] 2.) Exercise of master or ruling power[;] 3.) Exercise
of preponderant, governing, or controlling influence.” Under this definition of
“domination,” the trial court did not abuse its discretion in finding that Sisco was
under the domination of Rodriguez, thus supporting the downward departure in
Sisco’s sentence. 1 We thus affirm the trial court’s downward departure sentence.
Affirmed.
1 In addition, although the defense did not argue this mitigating factor, the
trial court can still base its ruling on it, but because the issue was not raised on
appeal, we are not deciding it. See Williams v. State, 967 So. 2d 735, 750 (Fla.
2007) (finding a trial court may base an evidentiary ruling on an alternative basis
that was not suggested by the parties).
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