GORDON LYNN DUNKIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the evidence was insufficient to establish a willful and substantial violation of probation based on missed treatment sessions due to illness.
[1] A willful and substantial violation of probation is not established by evidence that a probationer missed scheduled treatment sessions due to illness without prior permis…
[2] A probation condition requiring successful completion of a treatment program within a specified period does not necessarily imply that failure to complete the program on…
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Join FLexlaw to unlock all legal intelligenceThe appellant was placed on probation with a condition to complete an outpatient sex offender treatment program. He missed several sessions due to ill…
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THREADGILL, Acting Chief Judge.
The appellant challenges the revocation of his probation and the sentence imposed thereon. Based on prior decisions of this court, we believe the evidence was insufficient to establish a willful and substantial violation of probation. We therefore reverse the revocation and remand for reinstatement of probation.
On November 2, 1998, the appellant was placed on probation for a period of three years. Special condition (E) of the appellant’s probation required that he, within thirty days, enter and successfully complete an outpatient sex offender treatment program until discharged by the therapist. In June 1999, the appellant’s probation officer filed an affidavit of violation, alleging that he had violated condition (E) by being absent without permission from the S.H.A.R.E. sex offender treatment program on May 26, 1999, June 2, 1999, and June 9,1999.
Evidence at the revocation hearing indicated that the appellant did not contact his therapist or his probation officer to explain the absences. As a result, the therapist terminated him from the program. The appellant testified that he missed the sessions due to illness.
Condition (E) expressly required the appellant to complete the treatment program within the first three years of his supervision. It did not specify that treatment had to be successfully completed on the first try or how many chances the appellant would be given to complete it successfully. This court has repeatedly found similar circumstances insufficient to establish willful and substantial violations of probation. See Butler v. State, 25 Fla. L. Weekly D1202 (Fla. 2d DCA May 19, 2000); Salzano v. State, 664 So. 2d 23 (Fla. 2d DCA 1995); Young v. State, 566 So. 2d 69 (Fla. 2d DCA 1990). Thus, it has not been proven that the violation in this case was willful and substantial. We therefore reverse the revocation and remand for reinstatement of the appellant’s probation.
Reversed and remanded.
NORTHCUTT and DAVIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lawson v. State, 969 So. 2d 222 (Fla. 2007)…several cases that did not involve a drug treatment program. See Quintero v. State, 902 So. 2d 236 (Fla. 2d DCA 2005) (domestic vio [*226] lence program); Lynom v. State, 816 So. 2d 1218 (Fla. 2d DCA 2002) (sex offender probation); Dunkin v. State, 780 So. 2d 223 (Fla. 2d DCA 2001) (sex offender probation); Butler v. State, 775 So. 2d 320 (Fla. 2d DCA 2000) (GED program); O'Neal v. State, 801 So. 2d 280 (Fla. 4th DCA 2001) (domestic violence program). However, the certified question in this case specifically…
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Mitchell v. State, 871 So. 2d 1040 (Fla. 2d DCA 2004)…tion 3 of his community control. Regarding condition 67, the trial court found a willful and substantial violation based on evidence that Mitchell was terminated from the sex offender treatment program due to unexcused absences. In Dunkin v. State, 780 So. 2d 223, 224 (Fla. 2d DCA 2001), this court found that evidence of unexcused absence from the sex offender treatment program was insufficient to establish a willful and substantial violation of probation where the violated condition “did not specify that tr…
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Lawson v. State, 941 So. 2d 485 (Fla. 5th DCA 2006)…at apply the same principles to treatment programs that were not imposed as conditions of drug or sex offender probation. See Quintero v. State, 902 So. 2d 236 (Fla. 2d DCA 2005); O’Neal v. State, 801.So. 2d 280 (Fla. 4th DCA 2001); Dunkin v. State, 780 So. 2d 223 (Fla. 2d DCA 2001); Butler v. State, 775 So. 2d 320 (Fla. 2d DCA 2000); Salzano v. State, 664 So. 2d 23 (Fla. 2d DCA 1995). We are not bound by these decisions, and we respectfully disagree with them. We will endeavor to explain why. Although not e…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Young v. State, 566 So. 2d 69 (Fla. 2d DCA 1990)
- Ricci M. Salzano v. State, 664 So. 2d 23 (Fla. 2d DCA 1995)