5D03-71 Dwaine Woodson v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-71

Case Date: 01/05/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2003

DWAINE WOODSON, Appellant, v. Case No. 5D03-71 STATE OF FLORIDA, Appellee. / Opinion filed January 9, 2004 Appeal from the Circuit Court for Orange County, John H. Adams, Judge. James B. Gibson, Public Defender, and A. S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee. SAWAYA, C.J. Dwaine Woodson appeals his conviction and the sentence imposed as a result of the trial court's order revoking his sex offender probation. Woodson contends that the trial court abused its discretion in finding that he willfully and substantially violated his probation by failing to actively participate in the court-ordered sex offender treatment program and by failing to relay the results of his HIV test to the victim. Woodson bases his contention on the following: 1) the order of probation did not specify time parameters for him to successfully complete the treatment program and the HIV testing; 2) the court order did not specify the number of

attempts he would have to comply with these requirements; and 3) he expressed a willingness to undertake another attempt at compliance. We affirm. Woodson was originally charged with lewd and lascivious battery and lewd and lascivious conduct in violation of section 800.04, Florida Statutes. A third count of the information also charged Woodson with contributing to the delinquency of a minor in violation of section 817.04, Florida Statutes. Pursuant to a plea agreement, Woodson entered a plea of nolo contendere to the charge of lewd and lascivious battery in exchange for dismissal of the other two charges and a downward departure sentence of 51 weeks of incarceration followed by three years of supervised sex offender probation, pursuant to section 948.03(5), Florida Statutes.1 Specifically, Woodson was ordered to comply with the following conditions, which closely parrot the provisions of sections 948.03(5)(a)3. and 948.03(5)(b)4., Florida Statutes (2000):2 You will actively participate in and successfully complete a sex offender treatment program with therapists specifically trained to treat sex offenders, at your own expense. If a specially trained therapist is not available within a 50 mile radius of your residence, you will participate in other appropriate therapy. If there was sexual contact, you will submit, at your own expense, to an HIV test with the results to be released to the victim and/or the victim's parent(s) or guardian(s). The scoresheet indicates that Woodson scored a minimum of 144.4 months' incarceration in the Department of Corrections and that he had a prior conviction for sexual assault in 1990 in the state of New Jersey. He also had prior convictions for burglary, trafficking in stolen property, and battery. The record contains an exhibit, signed by Woodson, specifically listing these conditions and all of the sex offender conditions required under section 948.03. This exhibit also contains a signature, apparently affixed by a clerk or other court personnel, indicating that Woodson was "instructed" on these conditions. 2
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Although Woodson was also charged with violating other conditions of his sex offender probation, we will confine our discussion to Woodson's violation of the two mentioned above because they are sufficient to warrant revocation of his probation and imposition of his subsequent sentence. We will now explain why we have arrived at that conclusion. The state has the burden of proving by the greater weight of the evidence that the defendant committed a willful and substantial violation of a term of probation. State v. Carter, 835 So. 2d 259 (Fla. 2002); Thomas v. State, 760 So. 2d 1138 (Fla. 5th DCA 2000). The trial court has broad discretion to determine whether there has been a willful and substantial violation and whether the state has met its burden of proof. Carter. Therefore, in reviewing a trial court's order revoking probation, we must apply the abuse of discretion standard of review. Carter; Thomas. "That is, the appellate court must 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)). Application of this standard is premised on the generally accepted notion that the defendant's motive, intent, and attitude are best identified by the trial court when determining whether the violation is both willful and substantial. Carter. Here, the trial court found that Woodson willfully and substantially failed to actively participate in the sex offender program. We believe that this is a sufficient ground to revoke Woodson's probation. See Arias v. State, 751 So. 2d 184, 187 (Fla. 3d DCA 2000) ("We likewise conclude in this case that the trial court did not abuse its discretion in revoking Arias' probation based upon his willful failure to participate in good faith with the MDSO program."), review denied, 767 So. 2d 453 (Fla. 2000); Edgerton v. State, 703 So. 2d 1249, 1250 (Fla. 3

5th DCA 1998) ("The state argues, however, that Edgerton's discharge from the program was a direct result of his `utter unwillingness' to comply with the requirements of the program despite numerous accommodations made by staff on his behalf. We affirm."). The trial court also found that Woodson willfully and substantially violated the condition that he submit to HIV testing and supply the results of the test to the victim by simply refusing to do so. This too is a sufficient ground to revoke Woodson's probation. Based on our review of the record, we conclude that the trial court did not abuse its discretion in revoking Woodson's probation because the greater weight of the evidence supports this decision. Woodson argues that his failure to comply is excusable because no time parameters were established by the trial court for compliance; no limits were set for the number of attempts at compliance; and after his first failure at compliance, he expressed a willingness to try again. We reject Woodson's arguments based on our analysis of the provisions of section 948.03(5) and the goals to be accomplished through the imposition of the various conditions of sex offender probation mandated by that statute. We begin our analysis by noting that the cases cited by Woodson are distinguishable from the instant case because they involve imposition of special conditions of probation not mandated by the Legislature, which are imposed based on the discretion of the trial court.3

See Palma v. State, 830 So. 2d 201 (Fla. 5th DCA 2002); O'Neal v. State, 801 So. 2d 280 (Fla. 4th DCA 2001); Butler v. State, 775 So. 2d 320 (Fla. 2d DCA 2000); Jones v. State, 744 So. 2d 537 (Fla. 2d DCA 1999); Gamble v. State, 737 So. 2d 1160 (Fla. 1st DCA 1999); Mitchell v. State, 717 So. 2d 609 (Fla. 4th DCA 1998); Edgerton v. State, 703 So. 2d 1249 (Fla. 5th DCA 1998); Salzano v. State, 664 So. 2d 23 (Fla. 2d DCA 1995); Melecio v. State, 662 So. 2d 408 (Fla. 1st DCA 1995); Gibbs v. State, 609 So. 2d 76 (Fla. 1st DCA 1992). 4

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For example, the cases cited by Woodson involve successful completion of a drug rehabilitation,4 anger management,5 or mental health program,6 each of which is a special condition of probation not required to be imposed by the Legislature. Butler v. State, 775 So. 2d 320 (Fla. 2d DCA 2000), involved the condition that the defendant obtain his GED, while O'Neal v. State, 801 So. 2d 280 (Fla. 4th DCA 2001), and Mitchell v. State, 717 So. 2d 609 (Fla. 4th DCA 1998), involved imposition of the batterer's intervention program. In contrast, in a case involving sex offender probation, the trial court must impose certain legislatively mandated conditions; the statute does not allow for judicial discretion.

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