JERALD UNTEL COWART, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2000-04-04
No. 1D99-2908
KAHN and LAWRENCE, JJ., concur.
754 So. 2d 813 Florida District Court of Appeal, First District (2000) Positive Treatment
Cited by 6 cases

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Synopsis

Appellant Cowart was found in violation of probation for failing to complete court-ordered psychosexual treatment, but the trial court improperly based the violation on his involuntary thoughts rather than willful conduct. The appellate court reversed, holding that probation violations cannot rest on involuntary thoughts or conduct.


Holding

A probation violation cannot rest on involuntary conduct or involuntary thoughts. The trial court abused its discretion by finding a violation based solely on Cowart's continued inappropriate thoughts rather than willful misconduct, and the violation was therefore reversed.


Headnotes

[1] A probation violation requires proof of a willful violation by a preponderance of the evidence.

[2] Revocation of probation based on a probationer's failure to complete treatment due to involuntary conduct is an abuse of discretion.

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Key Quotes

“Florida law requires that for probation to be revoked due to a violation of probation, there must be a showing of a willful violation supported by a preponderance of the evidence.”

Establishes the legal standard required for probation revocation

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Facts & Procedural History

In April 1996, Cowart was placed on three years' probation for lewd and lascivious conduct by fondling with a condition requiring psychosexual evaluat…

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Opinion of the Court
WOLF, J.

WOLF, J.

Appellant challenges an order finding him in violation of probation. Appellant asserts that the state failed to prove a willful violation, and therefore, the violation must be reversed. We agree.

In April 1996, appellant was placed on three years’ probation for the offense of lewd and lascivious conduct by fondling. The probation order as modified included the following condition:

(18) You will submit to a psychosexual evaluation and follow through with any and all recommended treatment, therapy or counseling as directed by your probation officer. In March 1999, approximately one month before appellant’s probation was to terminate, the probation officer filed an affidavit alleging a violation of condition 18, which stated in pertinent part as follows:
[T]his writer has received a letter from Kathy Adams, M.S. licensed mental health counselor ... which states “Ger- aid Cowart has been attending psycho-sexual counseling but has not completed treatment. Mr. Cowart has had difficulty throughout treatment with inappropriate fantasies which have decreased but still occur. He continues to have poor insight about himself and is extremely self absorbed. He still puts some of the blame for his offense outside of himself, not taking full and complete responsibility. He and his wife have separated and appear to be heading toward divorce which is stress for Mr. Cowart. All of these indicate a need for further treatment and supervision. I feel that Mr. Cowart will be a risk for reoffending if his probation is terminated prior to his completion of therapy.”

A violation hearing was held in June 1999. Following receipt of evidence in the form of testimony from appellant’s counselors and his probation officer, the trial court concluded that appellant had violated his probation by failing to complete his treatment due to his inability to control his sexual fantasies:

[Although defendant has attended all counseling sessions and made reasonable efforts to comply with the counselor’s recommendations, defendant is still having fantasies about minor children and therefore has not completed treatment.

The trial court found that appellant was in violation of condition 18 of his probation based upon a finding that appellant continued to have inappropriate thoughts concerning children, indicating that appellant had not followed through to completion on all the recommended treatment. The court extended probation by an additional five years.

The state properly concedes in its brief, “[T]he judge incorrectly violated the defendant’s probation solely because the defendant was having improper thoughts.”1 Florida law requires that for probation to be revoked due to a violation of probation, there must be a showing of a willful violation supported by a preponderance of the evidence. See, e.g., Van Wagner v. State, 677 So. 2d 314, 316 (Fla. 1st DCA 1996). Where a probationer’s failure to complete treatment as a condition of probation is based on involuntary conduct of the probationer, revocation of probation based on such failure is an abuse of discretion and reversible error. See, e.g., Rainer v. State, 657 So. 2d 1230 (Fla. 4th DCA 1995); Gibbs v. State, 609 So. 2d 76, 79 (Fla. 1st DCA 1992). If a probation violation cannot rest on involuntary conduct, then it surely cannot rest on involuntary thoughts.

The violation of probation is reversed.

KAHN and LAWRENCE, JJ., concur. . The state urges us to uphold the violation based on conduct neither charged in the affidavit nor relied on by the judge in making his decision. We decline to do so. See, e.g., Richardson v. State, 694 So. 2d 147 (Fla. 1st DCA 1997) (holding that a revocation of probation based on a violation not alleged in the charging document is fundamental error).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Marcano v. State, 814 So. 2d 1174 (Fla. 4th DCA 2002)
    …appellant’s fear of having sexual thoughts showed his failure to obtain treatment was willful. We do not follow the logic of the state’s argument. However, having sexual thoughts cannot be the basis for a violation of probation. See Cowart v. State, 754 So. 2d 813, 814 (Fla. 1st DCA 2000) (“If a probation violation cannot rest on involuntary conduct, then surely it cannot rest on involuntary thoughts.”). We reverse the revocation of appellant’s probation and order his reinstatement. We would expect that he w…
  • Lawson v. State, 845 So. 2d 349 (Fla. 2d DCA 2003)
    …ed from a treatment program early, the evidence has been considered insufficient to show a willful and substantial violation. See Bennett v. State, 684 So. 2d 242 (Fla. 2d DCA 1996); Young v. State, 566 So. 2d 69 (Fla. 2d DCA 1990); Cowart v. State, 754 So. 2d 813 (Fla. 1st DCA 2000); Gibbs v. State, 609 So. 2d 76 (Fla. 1st DCA 1992). It is also noteworthy that the probation order in this case did not specify that treatment had to be successfully completed on the first try or how many chances the probationer…
  • Bland v. State, 896 So. 2d 937 (Fla. 1st DCA 2005)
    …showing that he willfully associated with persons engaged in criminal activity. For probation to be revoked because of a violation of a condition, the state must show a willful violation supported by a preponderance of the evidence. Cowart v. State, 754 So. 2d 813, 814 (Fla. 1st DCA 2000). The trial court “has broad discretion to determine whether there has been a willful and substantial violation of a term of probation and whether such a violation has been demonstrated by the greater weight of the evidence.”…

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