Sears v. State, 4D00-2167.

• Decision Date: 19 December 2001
• Docket Number: No. 4D00-2167.,4D00-2167.
• Citation: Sears v. State, 801 So.2d 1018 (Fla. App. 2001)
• Parties: David SEARS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

801 So.2d 1018

David SEARS, Appellant, v. STATE of Florida, Appellee.

No. 4D00-2167.

District Court of Appeal of Florida, Fourth District.

December 19, 2001.

Carey Haughwout, Public Defender, and Maxine Williams, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, J.

Defendant pleaded no contest to one count of Aggravated Battery. Under the plea agreement, he was to have no contact with the two alleged minor victims and no unsupervised contact with minor children. The plea agreement further provided that the State would waive all sexual offender and sexual predator designations as well as any prosecution under the Jimmy Ryce Act. The plea agreement contained a provision that he would be subject to "mental health evaluation and treatment if necessary." In accordance with the agreement, the trial court withheld adjudication and sentenced defendant to time served plus three years probation.

In specifying the terms of defendant's probation in court, the trial court stated:

He is to be subject to, and while on probation, a mental health evaluation and treatment if he, as necessary, needs it. This is not a substance abuse or drug evaluation.

On the same day, defendant signed and dated the Probation Order which contained the following special condition:

[Y]ou must undergo a mental health evaluation at a time, date and location as specified by your probation officer, at your own expense. You must also successfully complete any treatment and education determined to be necessary as a result of the evaluation, which may include residential treatment, at your own expense.

In accord with the above, stated as Condition 17, defendant's probation officer recommended that he undergo a mental health evaluation with Mr. Auerbach, the person to whom the probation office sends probationers for mental health evaluations and sex offender treatment. Following his evaluation of defendant, Auerbach recommended that defendant receive sex offender counseling.

Later defendant filed a motion seeking a judicial determination that his sentence did not include Condition 17 and that he had successfully completed the required evaluation and treatment terms of his probation. His motion argued:

The trial court, with the State's stipulation, withheld adjudication of guilt and placed the Defendant on three years probation with the special condition that he submit to a mental health evaluation and obtain any necessary treatment. The Defendant was not required to see a specific evaluator or obtain specific treatment in order to comply with this condition. The Defendant was never ordered by the court to pay for and successfully complete a sexual offender therapy program. In fact, the trial court specifically ordered that the Defendant was not to be listed on any sexual offender or sexual predator registration lists.

. . .

Mr. Sears, in a good faith effort to comply with his probation officer's orders, met Mr. Auerbach. Mr. Sears was shocked to discover that he had been referred to a "Sex Offender Therapy

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