82 So. 3d 152
Fla. Dist. Ct. App.2012Background
- Oertel was convicted of four counts of possession of child pornography and sentenced to 13 months in prison followed by 18 months of sex offender probation.
- A special probation condition required him to complete successfully on the first try any recommended treatment.
- An affidavit alleged violation of probation for termination from the CORTE treatment program.
- At the violation hearing, Bauman testified Oertel was disruptive and refused to participate, leading to his discharge.
- The defense presented testimony that CORTE could be mis-assigned and that Oertel attended and paid for sessions.
- The trial court found willful and substantial probation violation but did not issue a written order; the court remanded for a written order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the violation was willful and substantial | Oertel argues fault lies in misplacement and lack of substantive violation. | State contends there was a willful failure to participate in treatment. | Yes; the evidence supports willful and substantial violation. |
| Slovak applicability to the condition here | Slovak controls because attendance alone does not prove willful violation. | State relies on broader participation theory or different factual context. | Distinguishable; Slovak not controlling because the condition here requires completion, not mere attendance. |
| Archer applicability to the condition here | Archer shows strict failure to cooperate supports revocation. | Case is distinguishable due to lack of adamant denial by Oertel and ability to pursue treatment. | Distinguishable; Archer not controlling for these facts. |
| Need for a written order of violation | Court orally found violation; no written order necessary for revocation. | Written order required to specify violated conditions. | Remand for entry of a written order. |
Key Cases Cited
- Slovak v. State, 862 So.2d 875 (Fla. 2d DCA 2003) (placement in counseling not equivalent to completion of counseling)
- Archer v. State, 604 So.2d 561 (Fla. 1st DCA 1992) (failure to cooperate in treatment supports revocation where completion is required)
- Bell v. State, 643 So.2d 674 (Fla. 1st DCA 1994) (upward modification by counselor/PO cannot be penalized via probation revocation)
- King v. State, 46 So.3d 1171 (Fla. 4th DCA 2010) (written order requirement after probation revocation)
- Robinson v. State, 74 So.3d 570 (Fla. 4th DCA 2011) (need for written order specifying conditions violated)
- Davis v. State, 796 So.2d 1222 (Fla. 4th DCA 2001) (review of non-jury trial findings under competent substantial evidence standard)