Adams v. State

• Decision Date: 27 March 2008
• Docket Number: No. SC07-389.,SC07-389.
• Parties: Kenneth ADAMS, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

979 So.2d 921

Kenneth ADAMS, Petitioner, v. STATE of Florida, Respondent.

No. SC07-389.

Supreme Court of Florida.

March 27, 2008.

Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL, and Celia A. Terenzio and Georgina Jimenez-Orosa, Assistant Attorneys General, West Palm Beach, FL, for Respondent.

CANTERO, J.

In this case, we decide an issue involving sex offender probation. Many probation orders require a defendant to undergo sex offender treatment, but they do not specify either a deadline for completing it or the consequences for failing to complete the treatment on the first attempt. We must decide whether in such cases, when the defendant enrolls in but fails to complete sex offender treatment, and the probationary period has not expired (thus presumably allowing the defendant to re-enroll in the program), a trial court abuses its discretion in finding the defendant in violation of probation. We review Adams v. State, 946 So.2d 583, 585 (Fla. 4th DCA 2006), which held that such a finding was not an abuse of discretion. Adams conflicts with decisions of the Second District Court of Appeal holding that, under such circumstances, revoking probation does constitute an abuse of discretion. See Mitchell v. State, 871 So.2d 1040 (Fla. 2d DCA 2004), review dismissed, 911 So.2d 93 (Fla.2005); Gessner v. State, 890 So.2d 565, 566 (Fla. 2d DCA 2005). We have jurisdiction, see art. V, § 3(b)(3), and accepted review to resolve the conflict. See Adams v. State, 963 So.2d 702 (Fla.2007) (accepting review).

We hold that, even where the probation order does not specify a deadline for completing a sex offender program or how many attempts the probationer has to complete it, where a defendant enrolls in but fails to complete a sex offender treatment program, a trial court may, in its discretion and depending on the circumstances, revoke the defendant's probation. We base our conclusion in large part on our recent decision in Lawson v. State, 969 So.2d 222, 228 (Fla.2007), which considered the identical issue in the context of drug treatment as a condition of probation. We therefore approve Adams and disapprove the conflicting opinions in Mitchell and Gessner. We further hold that, under the circumstances of this case, the trial court did not abuse its discretion in revoking Petitioner's probation.

I. FACTS AND PROCEDURAL HISTORY

Petitioner, Kenneth Adams, was charged with one count each of lewd or lascivious molestation and lewd or lascivious exhibition on an eleven-year-old girl. He pled guilty, was declared a sexual predator and habitual offender, and was sentenced to two years of community control followed by three years of sex offender probation. Within thirty-seven days of the sentencing, Adams's probation officer twice filed affidavits alleging that he had violated his community control. After the first violation, the trial court reinstated Adams's community control. After the second, however, the court revoked his community control and probation and placed him on six years of sex offender probation with the special condition that he serve 364 days in jail. One of the standard sex offender conditions required him to "enter, actively participate in, and successfully complete a sex offender treatment program with a therapist particularly trained to treat sex offenders."

On June 22, 2005, Adams was released from jail. On August 1, his probation officer filed yet another affidavit, this time alleging that Adams failed to fulfill the condition of sex offender treatment. At the revocation hearing, the probation officer testified that on two separate occasions, Adams was informed of the conditions of his probation. Adams told the officer that he was able to pay the costs of supervision and that he was working at a car wash six or seven days a week. Before the violation, Adams told the officer that he was attending counseling. Adams never told him that he could not afford it. When arrested, however, Adams said that "he just didn't have the money and he just didn't go."

At the revocation hearing, the director of the sex offender treatment program testified. At the initial intake appointment, he informed Adams of the program fees, which were: $50 for the initial intake, $25 for the first two months of group sessions, and then a likely increase to the standard $35. Although Adams did not make any payments, the program does not terminate anyone for inability to pay. The director believed Adams was aware of this policy because he normally instructs new intakes as much, but he could not remember whether he told Adams. Adams told the director he had a job, and did not at any time indicate he could not afford the fees.

The director assigned Adams to a group program. Adams attended the first session, but left the director a message canceling the next one because he had to work. Because rescheduling is permitted for legitimate reasons, Adams was not terminated for missing that session. However, Adams also failed to call or appear at the next two sessions. When a client misses two successive sessions for unexcused reasons, the program's policy is to terminate the client. Therefore, Adams was terminated for "non compliance with the treatment program."

Adams testified that he was told that he had to "enter, actively participate and successfully complete the sex offender treatment program." He also admitted that he was told the course requirements. He claimed, however, that he was not told he could continue without paying. He lived with his mother after his release from jail and made about $635 during the fifteen days he worked in late June and July. He gave half of his income to his mother for rent and living expenses and used the remainder for food and clothing. Adams testified that he did not attend the sessions because he did not have the money and did not know how he would be treated. He thought that if he did not pay, he would be terminated from the program. Adams admitted, however, that he never told the program director that he could not attend because he could not pay the fees.

Based on Adams's two successive absences, the trial court found him in willful and substantial violation of his probation for failing to actively participate in and successfully complete the sex offender treatment program. The court found the violation willful because Adams had been informed of the program requirements (i.e., that two successive unexcused missed sessions would result in termination) and had the ability to pay for the sessions. The court concluded the violation was substantial because "sex offender probation and the treatment programs are absolutely essential to the well-being of not only Mr. Adams, but to the protection of society and any potential future victims ... as a result of his not getting the necessary care and treatment." The trial court also found that Adams had demonstrated a pattern of violating probation. The court therefore revoked Adams's probation and sentenced him to eleven years in prison followed by ten years of sex offender probation.

On appeal, Adams argued that the trial court abused its discretion because the probation order did not specify a time period for completion of sex offender treatment or how many chances he had to complete it. Adams, 946 So.2d at 585. The Fourth District Court of Appeal rejected his argument and affirmed the trial court based on "competent testimony that Adams had the resources to pay for his treatment, was aware he would be accommodated if he could not pay, and simply failed to attend." Id. at 586.

Adams conflicts with decisions of the Second District. In Mitchell, the Second District ordered that a violation of a sex offender treatment condition be stricken where

the sex offender treatment condition only stated that Mitchell needed to complete the program. It did not specify that treatment had to be successfully completed on the first try or how many chances he would be given to complete the program. Accordingly, the State failed to prove that the violation of [the sex offender treatment condition] was willful and substantial, and the trial court abused its discretion in finding that the condition was violated.

871 So.2d at 1042; see also Gessner, 890 So.2d at 565 (where the probation order did not provide a scheduled time for the defendant to successfully complete the program or provide how many chances he would have to complete it, holding that because the defendant still had time to successfully complete a sex offender treatment program, the State did not establish a willful and substantial violation).¹ We now resolve the conflict.

II. ANALYSIS

The conflict issue here is whether, where the probation order does not specify the number of attempts the defendant has to complete a sex offender treatment program or impose a time limit for completion, it remains within the trial court's discretion to find a defendant in violation of probation for failing to complete the program. While a trial court's decision to revoke probation is generally reviewed for an abuse of discretion, the issue presented is a question of law subject to de novo review. See Lawson, 969 So.2d at 228. Based substantially on our decision in Lawson, we hold that the failure of a probation order to include specific deadlines or the number of attempts the defendant will be given to complete sex offender treatment does not eliminate the trial court's discretion to revoke sex offender probation for failure to complete the program on the first try. We also hold that the trial court did not abuse its discretion in revoking probation in this case.

Below, we (A) detail our recent decision in Lawson, 969 So.2d 222, rejecting a per se abuse of discretion rule in situations involving substance abuse treatment probation; (B) explain why the same analysis applies...