DAVID KEITH BENNETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Keith Bennett appeals the revocation of his probation, which was based solely on his failure to complete a sex offender treatment program after refusing to admit to sexually deviant conduct. The Florida District Court of Appeal reversed, holding that Bennett's refusal to admit to sexual conduct does not constitute a willful and substantial violation of probation when he was never advised of such a requirement and no condition explicitly required such admission.
Bennett's refusal to admit to the sexual conduct does not constitute a willful and substantial violation of his probation condition because he was never advised that admission of the sexual acts would be required to successfully complete probation, and no probation condition explicitly required him to admit to a counselor the sexual acts charged. The trial court abused its discretion in revoking probation based solely on this refusal.
[1] A violation of probation must be willful and substantial to trigger revocation.
[2] Refusal to admit to sexual conduct does not constitute a willful and substantial violation of probation when the defendant pleaded guilty to simple battery and was not ad…
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Join FLexlaw to unlock all legal intelligence“A violation which triggers a revocation of probation must be willful and substantial.”
Establishes the legal standard for probation revocation that the trial court failed to meet.
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Join FLexlaw to unlock all legal intelligenceBennett was charged with handling and fondling a child under sixteen and battery. He pleaded guilty to two counts of simple battery and was placed on …
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PER CURIAM.
David Keith Bennett appeals the revocation of his probation which was based solely on his failure to complete a sex offender treatment program. We reverse because the evidence does not establish a willful and substantial violation.
Bennett was charged with one count of handling and fondling a child under the age of sixteen and one count of battery. He entered a negotiated plea of guilty to two counts of battery and was placed on two years’ probation. Condition seventeen of the probation order provided, “You will be evaluated for sex offender problems and enter into and successfully complete an out-patient sex offender treatment program if indicated.” The only evidence of Bennett’s violation was Dr. Leo Cotter’s testimony that Bennett refused to admit that he had committed the sexually deviant conduct charged in count one of the information. As a result of his refusal to admit the sexual conduct, Dr. Cotter terminated Bennett from the sex offender treatment program.
Bennett asserts that the evidence presented does not prove that he wilfully and substantially violated probation condition seventeen. We agree. A violation which triggers a revocation of probation must be willful and substantial. See Harris v. State, 610 So. 2d 36 (Fla. 2d DCA 1992). The standard of review is whether the trial court abused its discretion. Molina v. State, 520 So. 2d 320 (Fla. 2d DCA 1988).
In this case, Bennett pleaded guilty to two counts of simple battery. Prior to entering his plea, Bennett was never advised that in order to successfully complete his probation he would be required to admit the sexual acts underlying the primary charge of handling and fondling a child. Furthermore, no condition of probation was imposed that required him to admit to a counselor the sexual acts charged. As in Diaz v. State, 629 So .2d 261, 262 (Fla. 4th DCA 1993), under these circumstances, Bennett’s refusal to admit to the sexual conduct does not constitute a willful and substantial violation of the terms of his probation. See also Bell v. State, 643 So. 2d 674 (Fla. 1st DCA 1994).
Therefore, we conclude that the trial court abused its discretion when it violated Bennett’s probation. Because Bennett has otherwise complied with the conditions of his probation, we reverse the revocation and remand with directions that his probation be reinstated.
Reversed and remanded.
SCHOONOVER, A.C.J., and BLUE and FULMER, JJ., concur.
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Denny Mills v. State, 840 So. 2d 464 (Fla. 4th DCA 2003)…la. 3d DCA 2000)(appellant willfully and substantially violated his probation where he was unable to successfully complete court-ordered mentally disordered sex offender program due to his refusal to accept responsibility); but see Bennett v. State, 684 So. 2d 242 (Fla. 2d DCA 1996)(court concluded that there was no probation violation where appellant, who had pled guilty to charge of sexual conduct with a child and was ordered to complete a sex offender treatment, had not been told he would have to admit gui…
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Stevens v. State, 823 So. 2d 319 (Fla. 2d DCA 2002)…ce. Roseboro v. State, 528 So. 2d 499 (Fla. 2d DCA 1988); Van Wagner v. State, 677 So. 2d 314 (Fla. 1st DCA 1996). The standard of review to be followed by this court in reviewing an order revoking probation is abuse of discretion. Bennett v. State, 684 So. 2d 242 (Fla. 2d DCA 1996). Based on our review of the record, we conclude that the greater weight of the evidence here does not support the trial court’s finding that Stevens falsified community service records. Stevens’ probation officer testified that s…
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Staples v. State, 202 So. 3d 28 (Fla. 2016)…the Fifth District Court of Appeal [*30] 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…1 / 2
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bell v. State, 643 So. 2d 674 (Fla. 1st DCA 1994)
- Piper v. State, 520 So. 2d 320 (Fla. 2d DCA 1988)
- Molina v. State, 520 So. 2d 320 (Fla. 2d DCA 1988)
- Harris v. State, 610 So. 2d 36 (Fla. 2d DCA 1992)
- Diaz v. State, 629 So. 2d 261 (Fla. 4th DCA 1993)