       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
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.

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      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

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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.




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