A discussion of contemporary law, policy, and practice in Florida criminal sentencing.

Comment: The Extreme Duress or Domination Mitigator

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Hon. William H. Burgess, III, B.C.S.

It is a statutory mitigating factor under Florida’s Criminal Punishment Code that the defendant acted under extreme duress or under the domination of another person when he or she committed the crime.1 While listed together, it is quite arguable that domination of another person is a lesser species of, and a much less rigorous standard from, extreme duress.2

The mitigator of extreme duress presupposes that a harm or crime of greater magnitude is avoided when the subjected person succumbs to the duress.3 “Duress” as used in this sense does not mean internal pressure, but actually refers to external provocation such as imprisonment or the use of force or threats.4 The compulsion or coercion which will support a departure sentence is akin to the common law defense of duress used to excuse the commission of a criminal act: It must be present, imminent, and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done; it must be continuous, and there must be no reasonable opportunity to escape the compulsion without committing the crime. A threat of future injury is not enough, particularly after danger from the threat has passed. It is not necessary, however, that the defendant show that he or she was absolutely driven and made to commit the act charged as a crime.5 Legal recognition of duress as a defense to crimes other than homicide necessarily assumes a working hypothesis that a harm or crime of greater magnitude is avoided when the subjected person succumbs to the duress.6

“Domination,” in contrast, does not require the actual or threatened force that is an element of duress. As to domination by another person, the domination must be significant and evidence that the defendant was easily led is likely insufficient, in and of itself, to establish this mitigator.7 The domination must be of a preponderant, governing, or controlling influence, such that but for the domination by another person the defendant would not have committed the crime.8

Evidence that the defendant played a substantial part in the planning and/or execution of the offense can be sufficient to rebut or deny this mitigator.10

Note that this mitigator is almost identical to the capital mitigator of extreme duress or substantial domination, discussed infra. A significant difference between the two mitigators, however, is that capital mitigation requires “substantial domination,” while noncapital mitigation requires only “domination.”


1§ 921.0026(2)(g), Fla. Stat.

2See Frey v. Fulcomer, 974 F. 2d 348, 362-363 (3rd Cir. 1992).

3See, Wright v. State, 402 So. 2d 493 (Fla. 3d DCA 1981).

4Pooler v. State, 704 So. 2d 1375 (Fla. 1997) (fact that his former girlfriend had been seeing another man, even if it caused defendant to become distraught, simply does not qualify as external provocation for purposes of this statutory mitigator); Toole v. State, 479 So. 2d 731, 51 A.L.R.4th 1231 (Fla. 1985).

5See Hall v. State, 136 Fla. 644, 187 So. 392 (1939).

6Wright v. State, 402 So. 2d 493 (Fla. 3d DCA 1981).

7See Lawrence v. State, 846 So. 2d 440 (Fla. 2003).

8See State v. Sisco, 2018 WL 2422882, — So. 3d — (Fla. 3d DCA 2018).

9See Philmore v. State, 820 So. 2d 919 (Fla. 2002); White v. State, 817 So. 2d 799 (Fla. 2002).

10§§ 921.141(7)(e), 921.142(8)(d), Fla. Stat.


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