DENNY MILLS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2003-03-26
No. 4D02-298
GROSS and MAY, JJ., concur.
840 So. 2d 464 Florida District Court of Appeal, Fourth District (2003) Caution
Cited by 33 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Mills was convicted of sexual offenses and placed on probation with a condition to complete a sex offender treatment program. He was terminated from the program for excessive unexcused absences, lack of participation, and refusal to admit guilt. The trial court revoked his probation, and the appellate court affirmed, holding that Mills's refusal to acknowledge his criminal conduct and his poor attendance constituted willful violations of probation.


Holding

The trial court did not abuse its discretion in revoking probation. Mills's refusal to admit guilt while required by the treatment program constituted a willful violation of probation despite his no-contest plea. Additionally, his excessive unexcused absences constituted willful violations of probation regardless of the lack of a specific completion timeline, as he demonstrated no willingness to seek reinstatement or participate in a comparable program after termination.


Headnotes

[1] A defendant's refusal to admit guilt in a court-ordered treatment program can constitute a willful violation of probation, even if the defendant pled no contest to the un…

[2] Excessive unexcused absences from a required therapeutic program generally constitute a willful violation of probation.

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Key Quotes

“[a] plea of nolo contendere admits the facts for the purpose of the pending prosecution and is the same as a guilty plea insofar as it gives the court the power to punish”

Establishes that a no-contest plea carries the same legal consequences as a guilty plea and does not allow the defendant to challenge punishment by claiming innocence

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Facts & Procedural History

In 1998, Mills pled no contest to attempted sexual battery on a child under twelve and lewd/lascivious conduct, receiving two years prison followed by…

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Opinion of the Court
STONE, J.

STONE, J.

We affirm Mills’ conviction and sentence following the trial court’s order revoking his probation.

In 1998, Mills pled no contest to the charges of attempted sexual battery on a child under twelve by a perpetrator under the age of eighteen and of committing a lewd, lascivious or indecent act. He was sentenced to two years in prison, followed by four years of probation and was later designated a sexual predator. One of the conditions of Mills’ probation was that he complete a sex offender treatment program. Condition 17 of the probation order required “[ajctive participation in and successful completion of a sex offender treatment program.”

After being released from prison in January 2000, Mills was permitted to move to Kentucky. In late January, he was admitted into a sexual offender treatment program in that state, but was terminated from the program on October 31, 2000.

At the violation of probation (VOP) hearing, Keth Zimmerman-Hieks, a mental health counselor, testified that she terminated Mills from the rehabilitation pro gram for multiple reasons, including “excessive absenteeism,” lack of participation and motivation, and for failure to take responsibility for his offending behaviors. According to Hicks, even when Mills did attend the group sessions, he did not actively participate and did not complete the requisite assignments in violation of his “contract” with the program.

Mills also violated the program’s policy of allowing only one unexcused absence every 90 days by accumulating six unexcused absences in six months. The contract, signed before Mills was admitted to the program, specifically explained which excuses would be considered unexcused absences. When Mills exceeded the allowable number of unexcused absences, a meeting was held in which Hicks placed Mills on probation for thirty days and warned him he could not have any more unexcused absences in the next 90 days or he would be terminated. After this meeting, Mills had two more unexcused absences.

Mills did not deny the number of unexcused absences he had accumulated or that his “excuses” were unacceptable under the contract. In addition, Mills conceded that he had not complied with the program’s requirement that he admit his guilt. In fact, when the program’s counselors discovered that Mills was a non-admitter, they allowed him to remain in group therapy only because many sex offenders initially deny their behaviors but are able to work through their denial. However, Mills continued to deny he was a sexual offender throughout the treatment program and the VOP hearing.

The trial court found that Mills had willfully and substantially violated the conditions of his probation by failing to complete his sex offender treatment program. The court found that the absences in and of themselves amounted to a willful, material and substantial violation of Mills’ probation. However, the court also deemed Mills’ continuous lack of participation a violation. In addition, the court refused to accept defense counsel’s argument that Mills should not have been made to admit his guilt during the treatment program when he had pled no contest to the charges.

We conclude that the trial court did not abuse its discretion in revoking Mills’ probation, as, on this record, the greater weight of the evidence supported the court’s decision.

Mills argues that the court did not have the discretion to, in essence, refuse to honor his “best interest” plea by revoking his probation for not admitting his criminal conduct. However, “[a] plea of nolo con-tendere admits the facts for the purpose of the pending prosecution” and is the same as a guilty plea insofar as it gives the court the power to punish. Vinson v. State, 345 So. 2d 711, 713-15 (Fla.1977); Montgomery v. State, 821 So. 2d 464, 466 (Fla. 4th DCA 2002). Furthermore, Mills has not moved to withdraw his plea in the trial court and, as the plea “remains of record,” he cannot argue that the punishment is unjust because he is not guilty. Archer v. State, 604 So. 2d 561, 563 (Fla. 1st DCA 1992). In Archer, the appellant entered a nolo con-tendere plea and was ordered to undergo a psychosexual evaluation and to complete all recommended treatment as a condition of his probation. However, because he failed to admit he had a sexual problem, his psychologist discontinued the therapy sessions. The appellant argued that when he entered his no contest plea, he did not know he would be required to admit to his sexual problems to avoid violation of his probation. The district court reasoned that if the appellant entered his plea without a full understanding of its consequences, he should have moved to vacate either his plea or his judgment and sentence in the trial court. Because he had submitted neither motion to the trial court, his argument would not be considered on direct appeal. Id.

The Third District has also held that a defendant’s refusal to admit his guilt for purposes of completing a court-ordered treatment program was a willful violation of probation. See Arias v. State, 751 So. 2d 184 (Fla. 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 guilt for underlying offenses).

As in Archer and Arias, Mills did not express any interest in successfully completing a sexual offender program in which he would have to admit his guilt. Successful completion of the program, however, was dependent on such an acknowledgment. Therefore, the court did not abuse its discretion in finding a violation.

The court also did not abuse its discretion in revoking Mills’ probation notwithstanding the absence of a specific time period within which he was to complete the program. See Archer, 604 So. 2d at 563 (rejecting appellant’s argument that no probation violation occurred because the court had not assigned a specific time period in which he was to complete the therapy, where appellant denied committing the offenses charged and did not express a willingness to participate in the treatment program). In any event, this issue was not preserved. Counsel did not object on this basis at any time during the hearing.

Even if the issue had been preserved, Mills’ argument would, nonetheless, have failed. “Generally, un-excused absences from required therapeutic programs constitute willful violations of probation.” Marcano v. State, 814 So. 2d 1174, 1176 (Fla. 4th DCA 2002). Mills argues that because the probation order did not specify a time period within which Mills was to complete the sex offender program, his excessive unexcused absences should not be grounds for revoking his probation. For support, he cites O’Neal v. State, 801 So. 2d 280 (Fla. 4th DCA 2001), Jones v. State, 744 So. 2d 537 (Fla. 2d DCA 1999), and Salzano v. State, 664 So. 2d 23 (Fla. 2d DCA 1995). While the cited cases did involve the lack of specificity as to a time period, they are distinguishable because, in each, the conduct was not deemed willful, as the appellant had expressed a willingness to complete the program after being discharged.

Here, Mills made no effort, and demonstrated no willingness to either be reinstated into treatment or to participate in a comparable program. Mills was terminated from the sex offender treatment program on October 31, 2000, and he did not seek treatment when he had the opportunity; the VOP warrant for his arrest was not filed until February 26, 2001. We recognize that his possible reinstatement was asserted at sentencing, but this was too late.

Moreover, Mills’ conduct prevented him from successfully completing the program. Reinstatement would have been pointless. See Archer, 604 So. 2d at 563. Therefore, the conviction and sentence are affirmed.

GROSS and MAY, JJ., concur.


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Citator

Cited By (17 total)

  • Adams v. State, 979 So. 2d 921 (Fla. 2008)
    …o the offender and to society. The trial court also stressed that Adams had demonstrated a pattern of probation violations. The trial court did not abuse its discretion in finding that Adams’s violation of probation was willful. See Mills v. State, 840 So. 2d 464, 467 (Fla. 4th DCA 2003) (“Generally, un-excused absences from required therapeutic programs constitute willful violations of probation.”) (quoting Marcano v. State, 814 So. 2d 1174, 1176 [*928] (Fla. 4th DCA 2002)). We have recognized that a violat…
  • Lawson v. State, 941 So. 2d 485 (Fla. 5th DCA 2006)
    …tantial violation of probation. Rawlins v. State, 711 So. 2d 137, 137 (Fla. 5th DCA 1998) (“We conclude that a judge may find that two unexcused absences from a treatment program may indeed amount to a material violation.”); see also Mills v. State, 840 So. 2d 464 (Fla. 4th DCA 2003); Marcano v. State, 814 So. 2d 1174, 1176 (Fla. 4th DCA 2002) (“Generally, un-ex-cused absences from required therapeutic programs constitute willful violations of probation.”) (citing Boyd v. State, 756 So. 2d 1114, 1115 (Fla. 1s…
  • Staples v. State, 202 So. 3d 28 (Fla. 2016)
    …to reconcile Petitioner’s lack of notice of the admission requirement with the probation condition that Petitioner successfully complete the sex offender treatment program.6 However, upon being presented with case law— specifically, Mills v. State, 840 So. 2d 464 (Fla. 4th DCA 2003)—the trial court found that even if Petitioner did not have notice that he would be required to admit guilt as a condition of his probation, Petitioner’s best recourse upon discovering the requirement was to move to set aside his…
    1 / 2

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