RAYMOND DRAKE

v.

SECRETARY, DEPARTMENT OF CHILDREN AND FAMILIES

KELLY, Judge. Raymond Drake, who is involuntarily committed as a sexually violent predator, appeals from the orders denying him a trial to determine the legality of his continued detention.1 We reverse. 1We have consolidated Drake's appeals of the orders entered in 2017 and 2018. The records of both probable cause hearings are similar, however our reversal is

- 2 - In 2012, the State successfully petitioned to have Drake involuntarily committed as a sexually violent predator. The sexual battery for which Drake was committed occurred in 1976 when he was twenty-six years old. In 2017 and 2018, the trial court conducted limited probable cause hearings in connection with Drake's annual review under section 394.918, Florida Statutes (2017). By 2018, Drake was sixty-seven years old and had been incarcerated for over forty-six years.

Section 394.918 provides: (1) A person committed under this part shall have an examination of his or her mental condition once every year or more frequently at the court's discretion. The person may retain or, if the person is indigent and so requests, the court may appoint, a qualified professional to examine the person. Such a professional shall have access to all records concerning the person. The results of the examination shall be provided to the court that committed the person under this part. Upon receipt of the report, the court shall conduct a review of the person's status. (2) The department shall provide the person with annual written notice of the person's right to petition the court for release over the objection of the director of the facility where the person is housed. The notice must contain a waiver of rights. The director of the facility shall forward the notice and waiver form to the court. (3) The court shall hold a limited hearing to determine whether there is probable cause to believe that the person's condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged. The person has the right to be represented by counsel at the probable cause hearing and the right to be present. Both the petitioner and the respondent may present evidence that the court may weigh and consider. If the court determines that there is probable based on the record of Drake's 2018 review hearing. Because we are reversing based on what transpired in 2018, we need not reach the merits of Drake's appeal of the order rendered in 2017.

- 3 - cause to believe it is safe to release the person, the court shall set a trial before the court on the issue. (4) At the trial before the court, the person is entitled to be present and is entitled to the benefit of all constitutional protections afforded the person at the initial trial, except for the right to a jury. The state attorney shall represent the state and has the right to have the person examined by professionals chosen by the state.

At the hearing, the state bears the burden of proving, by clear and convincing evidence, that the person's mental condition remains such that it is not safe for the person to be at large and that, if released, the person is likely to engage in acts of sexual violence. A detailed recitation of the proceedings is unnecessary. In brief, Drake's evidence focused on his medical condition and how it impacted his physical ability to commit an act of sexual violence, while the State's evidence focused on Drake's psychological status. Drake presented evidence that he was terminally ill with stage 4 chronic obstructive pulmonary disease. He had been diagnosed with COPD before he was committed. Two physicians, one of whom examined him in 2012, testified that Drake is severely ill, that COPD is a progressive disease, that since being committed Drake's condition had deteriorated to the point that he uses a walker or a wheelchair, and that Drake struggles to breathe and relies on inhalers and oxygen. Both physicians testified that because of his COPD, Drake is no longer physically able to commit an act of sexual violence. They also noted that Drake was now sixty-seven and that even aside from his health issues, because of his advanced age, there was virtually no chance he would reoffend. The State relied on the written report of a psychologist who concluded that Drake continued to be a sexual sadist because he had never admitted to the offenses with which he was charged and convicted, and he had refused treatment during his time

- 4 - at the commitment center. The psychologist maintained that the condition does not spontaneously "go away," and opined that Drake was still capable of '"acts of sexual impropriety'" despite his ill health and advanced age. At a limited hearing under section 394.918, the trial court is tasked with determining whether "there is probable cause to believe that the person's condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged" § 394.918(3).

If the court determines probable cause exists, it must set a trial at which the State must prove by "clear and convincing evidence, that the person's mental condition remains such that it is not safe for the person to be at large and that, if released, the person is likely to engage in acts of sexual violence." § 394.918(4).

Probable cause is established when sufficient evidence is presented to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the committed person's condition has changed. Cf. State v. Robbins, 785 So. 2d 620, 621 (Fla. 5th DCA 2001).

Drake's evidence regarding his deteriorating physical condition and advancing age met this threshold. The State focuses its argument on the fact that Drake offered nothing to demonstrate that his diagnosis as a sexual sadist had changed.

However, in order to continue to detain Drake, the State must demonstrate not only that his mental condition remains unchanged, but also that if released he is likely to engage in acts of sexual violence. See § 394.918(4). Drake's evidence and argument focuses on changes to the latter, not the former. In other words, his argument is that regardless of whether he

- 5 - continues to be a sexual sadist, he is now physically unable to commit acts of sexual violence and thus cannot be deemed likely to engage in acts of sexual violence. The State's argument is further flawed in that it frames Drake's burden at the limited probable cause hearing in terms of conclusively establishing that he no longer poses a threat to the community, while all section 394.918(3) requires is for a detainee to produce sufficient evidence '"to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the committed person's condition has changed'" so that it is safe for him to be a large. See id. Drake did this. The State's expert acknowledged Drake's ill health and age but opined that he could still '"commit acts of sexual impropriety.'" Assuming for the sake of argument that this opinion conflicts with the opinions of Drake's experts, it conflicts on the ultimate issue of whether, notwithstanding any changes, Drake "remains" likely to engage of acts of sexual violence, a matter which section 394.918(4) reserves for trial.

Accordingly, we reverse and remand for the trial court to conduct a trial pursuant to section 394.918(4).

Reversed and remanded for further proceedings. LUCAS, J., Concurs. SMITH, J., Concurs with opinion. SMITH, Judge, Concurring. I agree that Drake presented evidence sufficient to establish probable cause to believe that his physical condition has so changed that it is now safe for him to

- 6 - be released and that he is entitled to a trial on the matter as proscribed by section 394.918(4).

However, I write to express my opinion that Drake also satisfied the probable cause burden as it relates to his changed mental condition. At the limited probable cause hearing Drake's three expert witnesses testified Drake has not exhibited any behaviors that would be associated with his initial diagnosis of sexual sadism or antisocial personality disorder in over a decade and he has not received a single "write-up" in the six years he has been incarcerated at the civil commitment center. This testimony went unrebutted by the State. Cf. In re Commitment of Allen, 927 So. 2d 1070, 1074 (Fla. 2d DCA 2006) ("At the circuit court hearing, Allen presented no evidence suggesting that there was probable cause to believe that his condition had so changed that it was safe for him to be released and that he would not engage in acts of sexual violence if released.

Therefore, Allen failed to meet his burden of proof and the circuit court correctly found that there was no probable cause to believe that Allen's condition had changed.").

I would also note that this was a "limited hearing" to determine whether probable cause exists. § 394.818(3).

In my opinion, the "limited hearing" is not meant to be a full-blown evidentiary hearing where the defendant is required to prove his condition has so changed that it is safe for him to be at large and that he will not engage in acts of sexual violence if discharged—in fact, the legislature has placed that burden upon the State to prove at the trial, "by clear and convincing evidence, that the person's mental condition remains such that it is not safe for the person to be at large and that, if released, the person is likely to engage in acts of sexual violence." § 394.918(4).

Conversely, the fact that Drake has met his burden of showing probable cause at the limited hearing should not weigh in his favor at the trial

- 7 - on the merits under section 394.918(4), but both sides should be required to present their evidence at the full-blown evidentiary trial. Accordingly, it is my opinion that the evidence presented by Drake is sufficient to establish probable cause to believe that both his mental and physical condition has changed and a full trial should be held pursuant to section 394.918(4).