Hepburn v. State, 3D00-854.

• Decision Date: 28 March 2001
• Docket Number: No. 3D00-854.,3D00-854.
• Citation: 780 So.2d 326
• Parties: Craig Leandrew HEPBURN, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

780 So.2d 326

Craig Leandrew HEPBURN, Appellant, v. The STATE of Florida, Appellee.

No. 3D00-854.

District Court of Appeal of Florida, Third District.

March 28, 2001.

Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Alison B. Cutler, Assistant Attorney General, for appellee.

Before COPE, FLETCHER and SORONDO, JJ.

SORONDO, J.

Craig Leandrew Hepburn appeals from an order of revocation of probation and sentence. We affirm.

Hepburn was charged with sexual battery on a victim under the age of twelve. On October 19, 1994, he plead guilty to a reduced charge of attempted sexual battery on a minor and was placed on probation for five years. The order of probation contained special conditions that Hepburn was to participate in supervised mental health counseling, have no contact with the victim or any child under eighteen years except family members and "[e]arly termination after three (3) years if no violations."

In 1996, several affidavits were filed alleging that Hepburn had violated his probation. At the conclusion of the probation violation hearing based on these affidavits in March 1997, the court found that Hepburn was not in violation of his probation. The court added a requirement of monthly reports from the Locktown Mental counseling sessions, psychotherapy and medication, and restored Hepburn to supervision.

Thereafter, affidavits of violation of probation were filed on October 14, 1998 and March 3, 1999. On March 23, 1999, an amended affidavit of violation was filed alleging that Hepburn had violated probation by failing to pay costs of supervision, committing the offense of sexual battery and being terminated from the mental health counseling program.

A probation violation hearing was held in November 1999. It was established at the hearing that Hepburn was terminated from the mental health counseling program in February 1999, after another patient in the program alleged that he had been sexually assaulted by Hepburn in a bathroom at the program's location. The victim testified that he had sex with Hepburn in the bathroom on nine occasions, four of which were not consensual. The victim testified that one of the rules of the program was that there could not be any sex on the premises. When the victim told Hepburn that having sex on the premises was against the rules, Hepburn threatened to crush the victim's ribs if he did not have sex with him. The police had investigated the allegations of sexual assault made by the patient and decided not to charge Hepburn with any offense.

The state argued that Hepburn violated the special condition of his probation by taking part in acts that resulted in the termination of his counseling. The defense argued that he was not in violation because the police did not charge him. After further hearings, the court found that Hepburn had violated probation, revoked it, and sentenced him to twenty-seven years in state prison, with a recommendation that he be placed in a facility with a Mentally Disordered Sex Offender program. The court indicated it would consider mitigation if Hepburn was placed in Martin Correctional, was amenable to treatment and received such.

Hepburn raises only one issue in this appeal. He argues that because the written order of probation reads, "Early termination...