Lawson v. State

• Decision Date: 03 November 2006
• Docket Number: No. 5D05-2312.,5D05-2312.
• Parties: Sammy LAWSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

941 So.2d 485

Sammy LAWSON, Appellant, v. STATE of Florida, Appellee.

No. 5D05-2312.

District Court of Appeal of Florida, Fifth District.

November 3, 2006.

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James S. Purdy, Public Defender, and Tomislav David Golik, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, J.

This case presents the question whether a trial court abuses its discretion in finding a willful and substantial violation of probation based on the defendant's dismissal from a court-ordered drug rehabilitation or treatment program due to nonattendance, when the sentencing judge did not specify the number of attempts the defendant would have to successfully complete the program and a time period for compliance. Our answer to this question is that the trial court does not abuse its discretion in this instance and we, therefore, affirm the order of revocation.

Pursuant to a plea agreement, Sammy Lawson entered a plea of nolo contendere to the charges of possession of cannabis with intent to sell and sale of cannabis. He was sentenced in accordance with the agreement to five years' imprisonment suspended upon successful completion of three years' drug offender probation. Condition 40 in the order of probation, which Lawson was accused of violating, specifically provides:

You must enter into, participate in, and successfully complete a [] substance abuse [] alcohol abuse [] Drug Abuse [] Other ___ evaluation and any treatment program subsequently prescribed by the treatment agency to which you are referred, including aftercare program, and be financially responsible for any treatment rendered.[¹]

According to the testimony presented at the revocation hearing, Lawson enrolled in a treatment program very soon after sentencing. The rules and regulations of this program, which were explained to Lawson before his first session, provide that an individual is subject to discharge after three absences. After missing nine sessions, Lawson was terminated from the program. In an attempt to work with Lawson and his alleged transportation problems, the program administrator reinstated Lawson to the program with the understanding that he miss no more sessions. However, Lawson again missed a class and was discharged from the program. Two days later, the State filed an affidavit indicating that Lawson had violated condition 40 by failing to successfully complete or remain in drug treatment. At the revocation hearing, the trial judge inquired of Lawson why he missed nine classes:

Q. You missed nine classes.

A. Yes, sir.

Q. Tell me why you missed nine classes.

A. Well, the first time I missed three classes, I figured they had already kicked me out. Then I talked to my probation officer. He said to call back to see if I could get back into the class. I called back, and they accepted me back into the program. I tried to like finish all of them. Every week — I had one class a week. I was going to all my classes. I just missed one. I knew I had missed a class.

Q. I'm asking you why you missed nine classes before you were given an extra chance.

A. I have no idea, sir. No transportation.

Based on the trial court's declaration that "[h]is reasons for absences are not persuasive to this court" and the explicit finding that Lawson willfully committed a substantial violation, it is readily apparent that Lawson's testimony, especially his excuse for nonattendance, was not considered by the trial court to be very credible. Accordingly, the trial court revoked Lawson's probation and imposed the suspended sentence of five years in prison. Lawson appeals, contending that because the trial court did not specify how many times he could take the program or a time period for completion, he has until the end of his probationary period to complete the program and is therefore entitled to yet another chance.²

In order to properly establish a basis to revoke probation, the state must prove by a preponderance of the evidence that the defendant committed a willful and substantial violation of a condition of probation. State v. Carter, 835 So.2d 259 (Fla. 2002); Thomas v. State, 760 So.2d 1138 (Fla. 5th DCA 2000). In reviewing a trial court's order revoking probation, we must apply the abuse of discretion standard of review, which requires that we "determine whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner in determining that [the] violation was both willful and substantial." Carter, 835 So.2d at 262 (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980)). The courts generally agree that unexcused absences from treatment programs are a valid basis for finding a willful and substantial violation of probation. Rawlins v. State, 711 So.2d 137, 137 (Fla. 5th DCA 1998) ("We conclude that a judge may find that two unexcused absences from a treatment program may indeed amount to a material violation."); see also Mills v. State, 840 So.2d 464 (Fla. 4th DCA 2003); Marcano v. State, 814 So.2d 1174, 1176 (Fla. 4th DCA 2002) ("Generally, un-excused absences from required therapeutic programs constitute willful violations of probation.") (citing Boyd v. State, 756 So.2d 1114, 1115 (Fla. 1st DCA 2000); Santiago v. State, 722 So.2d 950, 950 (Fla. 4th DCA 1998)).

We begin our analysis by noting that pursuant to the plea agreement, Lawson specifically agreed to submit to the requirements of drug offender probation. The contours of drug offender probation are defined by section 948.001(4), Florida Statutes (2005), as "a form of intensive supervision . . . with individualized treatment plans." Indeed, participation in, and completion of, specialized treatment plans developed by the Department of Corrections is a primary component of drug offender probation. See § 948.20(1), Fla. Stat. (2005) ("The Department of Corrections shall develop and administer a drug offender probation program which emphasizes a combination of treatment and intensive community supervision approaches and which includes provision for supervision of offenders in accordance with a specific treatment plan."). We agree with Justice Pariente's observations that "[b]ecause each treatment plan is individualized, it is not always realistic for the trial judge to specify time parameters for completion at the time of sentencing." Woodson v. State, 889 So.2d 823, 824 (Fla. 2004) (Pariente, C.J., concurring). Although Justice Pariente was referring to treatment plans for sex offender probation, the treatment plans for drug offender probation are no less individualized.

Despite the difficulty inherent in ordering specific time parameters for completion and limitations on the number of attempts at compliance, decisions from other districts hold that the trial court's failure to do so at sentencing prevents revocation when a defendant is discharged from a treatment program that is a condition of drug offender or sex offender probation. See Singleton v. State, 891 So.2d 1226 (Fla. 2d DCA 2005) (drug offender probation); Davis v. State, 862 So.2d 931 (Fla. 2d DCA 2004) (drug offender probation); Lynom v. State, 816 So.2d 1218 (Fla. 2d DCA 2002) (sex offender probation); see also Mitchell v. State, 871 So.2d 1040 (Fla. 2d DCA 2004) (drug treatment condition). Lawson relies on other decisions that apply the same principles to treatment programs that were not imposed as conditions of drug or sex offender probation. See Quintero v. State, 902 So.2d 236 (Fla. 2d DCA 2005); O'Neal v. State, 801 So.2d 280 (Fla. 4th DCA 2001); Dunkin v. State, 780 So.2d 223 (Fla. 2d DCA 2001); Butler v. State, 775 So.2d 320 (Fla. 2d DCA 2000); Salzano v. State, 664 So.2d 23 (Fla. 2d DCA 1995). We are not bound by these decisions, and we respectfully disagree with them. We will endeavor to explain why.

Although not explicit in their explanation of the rationale for the general principles they adopt, the courts seem to premise these decisions on the requirement that the defendant must willfully violate the conditions of probation. The courts reason that if the sentencing court does not set a time frame for completion or specifically limit the number of attempts at compliance, defendants do not have sufficient notice of what is required in order to comply and, therefore, they cannot willfully violate.

While we certainly agree that defendants should receive fair notice of conduct that may result in a violation so that they may guide their actions accordingly, the concept of fair notice does not require the most comprehensive, inclusive, and detailed notice conceivable. We adopt the view that fair notice can be satisfied by conditions of probation that provide reasonable individuals of common intelligence the basis to know and understand its meaning. See Ertley v. State, 785 So.2d 592 (Fla. 1st DCA 2001); Britt v. State, 775 So.2d 415 (Fla. 1st DCA 2001). Under this view, conditions of probation do not have to be precise to the point of obtrusiveness in order to afford fair notice to the probationer and, therefore, it is not necessary for the sentencing court to catalogue each and every detail or circumstance that may form the basis of a violation. In essence, conditions of probation should be written and read with a measure of common sense so that the fair notice requirement does not provide refuge for defendants who deliberately turn a blind eye to, or eagerly profess ignorance of, the obvious consequences of their actions or inactions.

The rationale we adopt is not new or novel; courts in other jurisdictions have adopted it. The federal courts, for example, have decided the issue under the umbra of the due process clause and its fair warning doctrine. In United States v. Gallo, 20 F.3d 7 (1st Cir. 1994), the court considered whether a condition of probation that provided in pertinent part that "[d]efendant shall continue to submit to...