Supreme Court of Florida
____________
No. SC14-2485
____________
WARREN STAPLES,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[October 6, 2016]
QUINCE, J.
Warren Staples seeks review of the decision of the Fifth District Court of
Appeal in Staples v. State, 161 So. 3d 561 (Fla. 5th DCA 2014), on the ground that
it expressly and directly conflicts with decisions of the First, Second, and Fourth
District Courts of Appeal in Bennett v. State, 684 So. 2d 242 (Fla. 2d DCA 1996),
Bell v. State, 643 So. 2d 674 (Fla. 1st DCA 1994), and Diaz v. State, 629 So. 2d
261 (Fla. 4th DCA 1993), on a question of law. We have jurisdiction. See art. V,
§ 3(b)(3), Fla. Const. For the reasons that follow, we approve the Fifth District’s
holding in the instant case and disapprove the conflict cases to the extent that they
are inconsistent with our decision.
FACTS
On August 28, 2012, Petitioner Warren Staples pleaded guilty to one count
of traveling to meet a minor under section 847.0135(4)(b), Florida Statutes (2011).1
Petitioner was adjudicated guilty and, as part of a stipulated downward departure
sentence, was sentenced to six days time served and five years of sex offender
probation. Condition 17 of Petitioner’s sex offender probation required Petitioner
to actively participate in and successfully complete a sex offender treatment
program. See § 948.30(1)(c), Fla. Stat. (2011). Neither “active participation” nor
“successful completion” is defined by statute. See §§ 948.30(1)(c), 948.001, Fla.
Stat. (“Definitions”).
From November 2012 to March 2013, Petitioner attended a sex offender
treatment program with ITM Group. However, on March 22, 2013, Petitioner was
discharged from the program for refusing to admit to any sexual misconduct
necessitating treatment.2 As a result of being terminated, Petitioner was charged
with violating Condition 17 of his probation. Staples, 161 So. 3d at 562-63.
Petitioner was not alleged to have violated his probation on any other grounds.
1. Petitioner was also charged with solicitation of a minor via computer, §
847.0135(3)(b), Fla. Stat. (2011), and attempted lewd or lascivious battery, §§
800.04(4)(a), 777.04. However, the State entered a nolle prosequi on those counts.
2. Admitting fault or some form of deviant sexual misconduct is a required
part of ITM Group’s sex offender treatment program.
-2-
At the violation of probation hearing, Petitioner’s therapist, Jack Stultz,
testified that Petitioner was first admitted into the program on a trial basis to
determine his amenability for treatment. This trial period typically lasts for two
months but was extended in Petitioner’s case to give him an opportunity to admit
responsibility for any deviant or inappropriate behaviors to be addressed as part of
the program.3 Dr. Stultz also testified that Petitioner actively participated in the
program and had not missed any sessions since January, when Petitioner was
transferred to Dr. Stultz’s sessions.4 Petitioner’s probation officer testified that
Petitioner was substantially in compliance with the other conditions of his
probation and that he was found to be in violation solely because of his continued
denial of any deviant conduct.
Petitioner testified that he entered his guilty plea because he felt it was in his
best interest. Both the transcript and judgment form from Petitioner’s original plea
hearing indicate that Petitioner pleaded guilty. The judgment form included
options for pleading “Guilty-Best interest” and nolo contendere, but neither option
3. Dr. Stultz opined that a client is not amenable to treatment if that client is
not willing to admit that he or she has a problem.
4. Petitioner began treatment with another therapist in the ITM Group, but
was transferred to Dr. Stultz after a change in employment required that he attend
night sessions instead. Petitioner provided the only testimony about his attendance
while being treated by the first therapist in November and December and stated
that he could not remember having any absences.
-3-
was selected. Upon entry of his guilty plea, Petitioner was not required to admit in
court that he had actually committed the charged offense, nor was he advised prior
to the entry of his plea that the ITM Group treatment program would require him to
admit some sexually deviant behavior. Staples, 161 So. 3d at 562. Before his
admittance into the treatment program, Petitioner’s probation officer instructed
Petitioner on the conditions of his probation, including Condition 17. However,
those conditions did not expressly include the requirement that Petitioner admit
any wrongdoing, nor did the probation officer disclose this program requirement
until later on during Petitioner’s treatment. Nonetheless, Petitioner and his
probation officer both acknowledged that before his discharge, Petitioner was
made aware that continuing to deny sexual misconduct could result in his
termination from the program, thereby violating his probation. Petitioner testified
that he was willing to finish the program, despite its financial strain on him.
Neither Petitioner nor his probation officer investigated or discussed alternative
programs Petitioner could attend that would not require an admission of guilt or
wrongdoing.5
5. Notably, this record does not demonstrate that any such programs exist.
Dr. Stultz only testified that he knew other programs existed but did not know what
their requirements were. Petitioner testified that no one indicated to him whether
other programs not including the admission requirement existed.
-4-
At the conclusion of the testimony, the trial court initially struggled to
reconcile Petitioner’s lack of notice of the admission requirement with the
probation condition that Petitioner successfully complete the sex offender
treatment program.6 However, upon being presented with case law—specifically,
Mills v. State, 840 So. 2d 464 (Fla. 4th DCA 2003)—the trial court found that even
if Petitioner did not have notice that he would be required to admit guilt as a
condition of his probation, Petitioner’s best recourse upon discovering the
requirement was to move to set aside his plea on that basis. Thus, the court
revoked Petitioner’s probation, finding that the State presented sufficient evidence
of a violation.
The Fifth District affirmed the revocation:
On appeal, Staples argues that his dismissal from the sex offender
treatment program based on his repeated refusal to admit to engaging
in deviant sexual behavior cannot constitute a willful and substantial
violation of probation where he was never advised, prior to the entry
of his plea, that his admission to such behavior would be required.
Although Staples may not have been aware of this requirement at the
time of the entry of his plea, the record reflects that he was made
aware of the necessity to acknowledge his offending behavior months
before he was dismissed from the program. Upon learning of the full
6. The trial judge’s first impression was that the probation order “leaves out
any requirement for admitting. And although [Petitioner’s probation officer] and
ITM might have said he has to admit[,] I can’t violate somebody for orders created
by probation or by counseling services. I can only violate for orders created by, in
this case, Judge Polodna and this Court.” He also stated, “Probation doesn’t have
the authority to create conditions of probation. I can’t violate him for a condition
of probation that probation tells the defendant he has to do.”
-5-
consequences of his plea, Staples’ remedy was to either file a written
motion to withdraw his plea, or a motion to vacate his judgment and
sentence pursuant to Florida Rule of Criminal Procedure 3.850.
Because Staples did neither, we conclude that the trial court could
properly revoke his probation.
Staples, 161 So. 3d at 562 (footnotes omitted). The district court found that given
the treatment program’s requirement that an offender admit sexual misconduct in
order to complete the program, it was Petitioner’s “decision to refuse to take the
steps necessary to complete the treatment program” and accepting Petitioner’s
argument “would, in essence, excuse [Petitioner] from performance of a
legislatively mandated probation condition.” Id. at 563. Petitioner appeals this
decision on the basis of conflict jurisdiction.
ANALYSIS
Petitioner argues that the trial court abused its discretion when it found that
Petitioner willfully and substantially violated his probation by refusing to admit to
some type of deviant behavior to be addressed by the sex offender treatment
program. Whether a violation of probation is willful and substantial and has been
demonstrated by the greater weight of the evidence is a question of fact for the trial
court. State v. Carter, 835 So. 2d 259, 262 (Fla. 2002). The decision to revoke
probation based on a willful and substantial violation is reviewed for an abuse of
discretion. Id. However, where the issue presented is a question of law, the
standard of review is de novo. Adams v. State, 979 So. 2d 921, 925 (Fla. 2008);
-6-
Lawson v. State, 969 So. 2d 222, 229 (Fla. 2007). While we will need to
determine whether the trial court abused its discretion, the conflict issue here
presents the legal question of whether a refusal to admit sexual misconduct can
constitute a violation of probation. As such, this initial question of law is reviewed
de novo.
I. The Conflict Issue
The trial court and the Fifth District in the instant case found the refusal to
admit wrongdoing to be a violation of the probation condition requiring successful
completion of a sex offender treatment program because such refusal results in the
offender’s discharge from the program he was required to successfully complete.
See Mills, 840 So. 2d at 467 (“Mills did not express any interest in successfully
completing a [sex] offender program in which he would have to admit his guilt.
Successful completion of the program, however, was dependent on such an
acknowledgment. Therefore, the court did not abuse its discretion in finding a
violation.”); Arias v. State, 751 So. 2d 184, 186 (Fla. 3d DCA 2000) (finding that
probationer’s refusal to accept full responsibility for his criminal conduct
“obviously precludes his successful completion of this program”); Archer v. State,
604 So. 2d 561, 563 (Fla. 1st DCA 1992) (“Archer adamantly maintained at the
hearing that he had no sexual problem and expressed no willingness to . . . comply
with the condition of probation.”). Courts following this approach have found the
-7-
refusal to admit wrongdoing a willful and substantial violation because upon
becoming aware of the admission requirement, the offender should have made a
motion to withdraw the plea or vacate the judgment. Staples, 161 So. 3d at 562;
Mills, 840 So. 2d at 466-67; Archer, 604 So. 2d at 563. Having done neither, the
offender can have his or her probation revoked by the trial court, regardless of
whether the offender was made aware of the requirement prior to the entry of the
plea. Staples, 161 So. 3d at 562; Mills, 840 So. 2d at 466-67; Archer, 604 So. 2d at
563.
On the other hand, the conflict cases consider the program requirement of
admitting wrongdoing to be a new, additional condition of probation, not imposed
by the trial court. Bennett, 684 So. 2d at 243 (recognizing that probation condition
required probationer to “enter into and successfully complete” a sex offender
treatment program, but finding that “no condition of probation was imposed that
required him to admit to a counselor the sexual acts charged”); Bell, 643 So. 2d at
675 (“The probation order did not require that [probationer] admit to the
underlying charges.”); Diaz, 629 So. 2d at 262 (“No specific condition of probation
was imposed requiring [probationer] to admit to a counselor the specific acts
charged.”). Accordingly, those courts find that the refusal to admit is not a willful
and substantial violation because (1) a trial court cannot revoke probation for
violation of a condition that was imposed by someone other than the trial judge,
-8-
i.e., a probation officer or therapist;7 and (2) the probationer had no notice prior to
the entry of the plea that he or she would be required to admit sexual misconduct.
Bennett, 684 So. 2d at 243; Bell, 643 So. 2d at 675; Diaz, 629 So. 2d at 262.8 This
second rationale appears to be based on the idea that “a defendant could not
7. See Kiess v. State, 642 So. 2d 1141, 1142 (Fla. 4th DCA 1994)
(“Violation of a condition which is imposed by a probation officer, rather than an
express condition of the trial court, cannot serve as a basis for revocation of
probation.”).
8. Respondent argues that these cases are distinguishable in several ways.
First, he asserts that they are distinguishable because they each require the
probationer to accept responsibility for or admit to the crime charged; whereas in
this case, Petitioner was required only to admit wrongdoing or deviant sexual
behavior in general. However, it is not clear from the record in this case whether
Petitioner was required to admit guilt or simply acknowledge deviant behavior.
Further, if this factor distinguishes the conflict cases, it also distinguishes the very
case upon which Respondent himself relies because the offender in Mills was also
required to “take responsibility for his offending behaviors” and “admit his guilt.”
Mills, 840 So. 2d at 466; see also Arias, 751 So. 2d at 186-87.
Respondent also argues that the cases are distinguishable because they
involve probationers who were not on sex offender probation but instead received,
as special conditions of their probation, conditions with language similar to the
successful completion condition of sex offender probation. However, Respondent
does not explain why such fact precludes the reasoning from being applied
similarly to other types of probation cases. See Adams, 979 So. 2d at 926-27
(applying principle from drug offender probation case to sex offender probation
case).
Lastly, Respondent argues that Bell and Diaz are distinguishable because the
conditions in both cases required something less than “completion” of treatment.
Bell, 643 So. 2d at 674 (requiring that offender “submit to” counseling); Diaz, 629
So. 2d at 261 (requiring offender to “receive” treatment or counseling). However,
in neither case was that fact relevant to the way the district court decided the
willful and substantial violation issue. As such, the conflict cases cited by
Petitioner are not distinguishable on the bases offered by Respondent.
-9-
willfully violate a condition of probation without being on adequate notice of the
conduct that is prohibited.” Lawson, 969 So. 2d at 230.
We reject the rule from Bennett, Bell, and Diaz that requiring an offender to
admit sexual misconduct is an impermissible third-party condition that cannot
serve as the basis of a revocation. Instead, we recognize the admission
requirement not as a probation condition on its own but as an internal, program-
specific requirement that may or may not cause an offender to violate the
“successful completion” condition of sex offender probation.
We also reject the rule from Bennett and Diaz that where a probationer is not
told prior to the entry of a plea that an admission of wrongdoing is required, the
probationer does not have sufficient notice of the admission requirement for the
probationer’s refusal to admit sexual misconduct to be a willful violation. Sex
offender treatment programs will always have program-specific requirements not
embodied by the generic language of the probation condition requiring “successful
completion” of the program. Bennett and Diaz rob the trial court of its discretion
to make fact-specific determinations as to whether a probationer had notice of
those program-specific requirements. Without discretion, courts would have to
specifically delineate, in each probation order, the program to which an offender is
being sent and that program’s internal requirements—an approach we have
implicitly rejected. Lawson, 969 So. 2d at 235 (holding that “[p]robation orders
- 10 -
need not include every possible restriction so long as a reasonable person is put on
notice of what conduct will subject him or her to revocation” and that “[a]lthough
the conditions should be clearly set out and must mean what they say, every detail
need not be spelled out and the language should be interpreted in its common,
ordinary usage”). Thus, we disapprove Bennett, Bell, and Diaz.
II. This Case
This Court reviews the trial court’s revocation of probation for an abuse of
discretion and must affirm the revocation unless “the trial court acted in an
arbitrary, fanciful or unreasonable manner.” Carter, 835 So. 2d at 262. Here, the
trial court found that even if Petitioner did not have notice that he would be
required to admit guilt as a condition of his probation, under Mills, Petitioner’s
best recourse upon discovering the requirement was to move to set aside his plea
on that basis. Thus, the trial court found that the State presented sufficient
evidence that Petitioner willfully and substantially violated his probation. The
Fifth District affirmed, also finding that Petitioner’s proper remedy was to file a
motion to withdraw his plea or vacate his judgment and sentence. Staples, 161 So.
3d at 562. Both courts are correct that Petitioner could have moved to set aside his
plea or vacate his judgment and sentence.
As to whether the violation was substantial, Dr. Stultz testified that a client
would not be amenable to treatment in the ITM program if that client were not
- 11 -
willing to admit that he or she has a problem. Arias, 751 So. 2d at 186 (finding
that probationer’s refusal to accept full responsibility for his criminal conduct
“obviously precludes his successful completion of this program”). Therefore,
Petitioner’s refusal to admit the need for help completely foreclosed his ability to
successfully complete ITM’s sex offender treatment program. Further, this Court
has previously found a violation of sex offender probation to be substantial based
on the importance of treatment to the sex offender and society. Adams, 979 So. 2d
at 928 (“[S]ex offender probation and the treatment programs are essential not only
to [the offender’s] well-being and rehabilitation, but also to the protection of
society and any potential future victims.”).
Regarding willfulness, a probationer cannot willfully violate a condition of
probation unless that probationer has adequate notice of what conduct is
prohibited. Lawson, 969 So. 2d at 230. Here, Dr. Stultz testified that ITM
extended Petitioner’s trial period by about three months in order to give Petitioner
an opportunity to identify any deviant or inappropriate behaviors that needed to be
addressed as part of the program. Petitioner rejected this opportunity. More
importantly, Petitioner was made aware, before being discharged, that continuing
to deny sexual misconduct could result in his termination from the program and
thereby violate his probation. Yet Petitioner did not file the appropriate motion
with the trial court to avoid the violation. The trial court did not abuse its
- 12 -
discretion in revoking Petitioner’s probation for his willful and substantial
violation of probation. Accordingly, we approve the Fifth District’s holding in the
instant case.
CONCLUSION
We disapprove Bennett, Bell, and Diaz to the extent that they are
inconsistent with our decision. We approve the Fifth District’s decision in Staples
v. State, 161 So. 3d 561 (Fla. 5th DCA 2014), affirming the trial court’s revocation
of Petitioner’s probation.
It is so ordered.
LEWIS, CANADY, and POLSTON, JJ., concur.
PARIENTE, J., dissents with an opinion, in which LABARGA, C.J., and PERRY,
J., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, J., dissenting.
In this case the defendant entered a best interest plea so that he was not
required to admit the crime to which he pled guilty—traveling to meet a minor.
More importantly, he was not required to admit—and did not actually admit in
court—that he engaged in sexually deviant behavior. While I agree that the
defendant need not be put on notice of every program-specific requirement of
probation, I disagree with the majority’s attempt to characterize the substantial
requirement, that is admitting to sexually deviant behavior, as merely “an internal,
- 13 -
program-specific requirement” of probation. Majority op. at 10. Without notice of
this substantial probation requirement to admit to sexually deviant behavior he did
not admit to in court, the defendant could not have willfully and substantially
violated his probation by later failing to admit to such behavior in a sex offender
probation treatment program, and his probation should not have been revoked on
that basis. See State v. Meeks, 789 So. 2d 982, 987 (Fla. 2001) (A violation of
probation “must always be willful and substantial to produce a revocation.”)
(emphasis omitted).
Additionally, I dissent because I disagree with the majority’s conclusion that
the defendant’s proper remedy to avoid violating his probation when the State
failed to convey this substantial probation requirement was moving to withdraw his
plea. Majority op. at 11. In this case where the defendant lacked notice of the
probation requirement in the first place, that remedy would have improperly
shifted the burden of proof in a violation of probation proceeding from the State to
the defendant. Accordingly, I dissent.
Sex offender probation under section 948.30(1)(c), Florida Statutes (2011),
requires “[a]ctive participation and successful completion of” a sex offender
treatment program. However, as the majority acknowledges, the statute does not
further define the “successful completion” requirement as mandating that the
defendant admit sexual misconduct. Majority op. at 2.
- 14 -
We explained in Lawson v. State that an essential part of due process in the
revocation of probation is that “the probation order must [] adequately place the
probationer on notice of conduct that is both required and prohibited during the
probationary period.” 969 So. 2d 222, 230 (Fla. 2007). As the majority points out,
in Lawson we recognized that due process considerations do not require that the
probation order “include every possible restriction so long as a reasonable person
is put on notice of what conduct will subject him or her to revocation.” Majority
op. at 11 (quoting Lawson, 969 So. 2d at 235) (emphasis added).
I have no quarrel with the majority’s rejection of a bright-line rule that a trial
court must advise a defendant of every program specific requirement that will
subject him or her to revocation. Id. at 10. I disagree, however, that the
requirement that one admit to engaging in sexually deviant behavior when one was
not required to admit such behavior in court can be characterized as an “internal,
program specific requirement,” not warranting notice prior to the entry of the plea.
Id.
The issue we considered in Lawson was whether the State was required to
put the defendant on notice of the number of attempts the defendant would have to
successfully complete a drug treatment program, which is precisely the type of
program specific requirement that does not need to be specified when imposing the
condition of probation. 969 So. 2d at 228. Certainly in the present case, it is
- 15 -
reasonable to conclude that the probationer was on notice that to successfully
complete his probation, he would have to actually attend the sex offender treatment
program.
In stark contrast to the issue in Lawson, it is not a reasonable construction of
the probation condition at issue here that the probationer was on notice that
“successfully completing” the treatment program would also require admitting to
sexual misconduct—something the probationer was “not required to admit” in
court. See majority op. at 4. Thus, under this Court’s precedent in Lawson, due
process considerations do not allow the revocation of Staples’s probation for
noncompliance of a critical, yet unspecified, aspect of a probation condition that
Staples—or any reasonable person—did not have notice of and would not have
been expected to know could “subject him or her to revocation.” 969 So. 2d at
235.
In short, if the condition of probation required the defendant to admit that he
engaged in sexually deviant behavior, then that requirement should have been
communicated to him before the time of the plea. This communication is even
more critical when considering that in this case, although the defendant pled guilty,
he asserted that it was a best interest plea, and he “was not required to admit in
court that he had actually committed the charged offense.” Majority op. at 4.
Withdrawal of Plea is an Improper Remedy
- 16 -
I also disagree with the majority’s conclusion that the defendant’s proper
remedy in this case for avoiding a violation of his probation “was to file a motion
to withdraw his plea or vacate his judgement and sentence.” Majority op. at 11
(citing Staples v. State, 161 So. 3d 561, 562 (Fla. 5th DCA 2014)). It defies logic
to require a defendant to withdraw his plea to avoid violating a probation condition
that was never communicated to him when that remedy is, as the Fifth District
explained, typically available for a defendant who does “not understand the
consequences of his plea.” Staples, 161 So. 3d at 564; see also Mills v. State, 840
So. 2d 464, 466 (Fla. 4th DCA 2003); Archer v. State, 604 So. 2d 561, 563 (Fla.
1st DCA 1992). A defendant cannot plausibly lack an understanding of the
consequences of his plea when those consequences were never communicated to
him so that he could form such an understanding in the first place.
Further, such a remedy inverts the burden of proof in a violation of
probation proceeding, where the State must prove, by a preponderance of the
evidence, that the defendant willfully and substantially violated a condition of
probation. See Meeks, 789 So. 2d at 987; see also Walker v. State, 966 So. 2d
1004, 1006 (Fla. 5th DCA 2007) (“To establish a violation of probation, the State
must prove, by a preponderance of the evidence, that a probationer willfully
violated a substantial condition of probation.”). By requiring the defendant to
move to withdraw his best interest plea to avoid violating his probation, and then
- 17 -
prove the necessary requirements to meet the withdrawal standard, the trial court
shifted the burden to the defendant to prove that he did not willfully and
substantially violate a substantial requirement of probation, even when the State
failed to put the defendant on notice of the substantial probation requirement. See
Sheppard v. State, 17 So. 3d 275, 283 (Fla. 2009) (noting that defendant bears the
burden of proving a manifest injustice in a motion to withdraw a plea after
sentencing).
Under the specific facts of this case, I would conclude that the defendant’s
failure to admit that he engaged in sexually deviant behavior did not constitute a
willful and substantial violation of probation because he did not have notice before
he entered his plea that “successful completion” of a sex offender treatment
program would require admitting to sexual misconduct. If the requirement of
admitting that he engaged in sexually deviant behavior was a prerequisite of
“successful completion” of a “sex offender treatment program,” then that condition
should have been communicated to the defendant before he entered his plea.
Accordingly, I would approve the conflict decisions in Bennett v. State, 684 So. 2d
242 (Fla. 2d DCA 1996), Bell v. State, 643 So. 2d 674 (Fla. 1st DCA 1994), and
Diaz v. State, 629 So. 2d 261 (Fla. 4th DCA 1993), and quash the Fifth District’s
decision in Staples v. State, 161 So. 3d 561 (Fla. 5th DCA 2014).
LABARGA, C.J., and PERRY, J., concur.
- 18 -
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
Fifth District - Case No. 5D13-3573
(Osceola County)
James S. Purdy, Public Defender, and Christopher Sinclair Quarles, Assistant
Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Wesley Harold Heidt,
Bureau Chief, and Marjorie J. Vincent-Tripp, Assistant Attorney General, Daytona
Beach, Florida,
for Respondent
- 19 -