ALBERT WESNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Albert Wesner appeals the trial court's denial of his motion to modify sex offender probation conditions that prohibited unsupervised contact with children under 18. The court held that the trial court erroneously believed it lacked discretion to authorize such contact prior to completion of his treatment program, when in fact the statute permitted such authorization at the court's discretion.
The trial court has discretion to authorize unsupervised contact with children under 18 prior to completion of the sex offender treatment program. The statutory language and probation condition prohibit such contact until completion unless the sentencing court authorizes it, meaning the court retains discretion to grant such authorization before treatment is completed.
[1] A trial court's order denying a motion for modification of probation is reviewable under the court's certiorari jurisdiction.
[2] A trial court departs from the essential requirements of law when it mistakenly believes it lacks the legal authority to consider a motion for modification of probation.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We read the language of condition 16 and section 948.03(5)(a)(5) as prohibiting unsupervised contact with children under eighteen until after completion of the sex offender treatment program unless, prior to completion of the program, the trial court authorizes such unsupervised contact.”
Establishes the court's interpretation that the trial court retains discretion to authorize contact before treatment completion.
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Join FLexlaw to unlock all legal intelligenceIn February 2001, Wesner pleaded guilty to lewd act on a child involving a 15-year-old victim and received 15 years of sex offender probation. The pro…
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SILBERMAN, Judge.
Albert Wesner appeals the denial of his motion for modification of probation. The trial court’s order is not appealable, see Baker v. State, 746 So. 2d 469 (Fla. 2d DCA 1997), but it is subject to review under this court’s certiorari jurisdiction. See Moya v. State, 668 So. 2d 279, 280 (Fla. 2d DCA 1996); Smith v. State, 471 So. 2d 1347, 1348 (Fla. 2d DCA 1985), approved sub nom. Abreu v. State, 660 So. 2d 703 (Fla.1995). Because the basis of the trial court’s denial was its mistaken belief that it did not have the legal authority to consider the motion, we treat this appeal as a petition for writ of certiorari and grant the petition.
In February 2001 Wesner entered a guilty plea to the offense of lewd act on a child, a violation of section 800.04, Florida Statutes (2000), in exchange for a sentence of fifteen years of sex offender probation. The record reflects that the victim was a fifteen-year-old girl who was not related to Wesner. In the plea agreement, Wesner acknowledged that all standard conditions of probation would apply as well as all additional standard conditions of probation “as set forth in the Tenth Circuit Sentencing Order pursuant to F.S. 948.03(5).”
In the written probation order, the trial court imposed condition 16 as follows: “If the victim(s) is/are under the age of 18, until successful completion of sex offender treatment, you shall have no unsupervised contact with children less than eighteen (18) years of age without the approval of the sentencing court.” This condition is worded differently than the statutory condition contained in section 948.03(5)(a)(5), Florida Statutes (2000), which provides:
If the victim was under the age of 18, a prohibition, until successful completion of a sex offender treatment program, on unsupervised contact with a child under the age of 18, unless authorized by the sentencing court without another adult present who is responsible for the child’s welfare, has been advised of the crime, and is approved by the sentencing court.
In July 2001 Wesner filed a motion to modify probation condition 16 so that he could have unsupervised contact with his six-year-old son and his grandchildren. At a hearing on the motion, the only evidence that was presented was testimony by a psychologist in support of Wesner’s request. The psychologist noted that Wes-ner had completed eight months of his four-year treatment program, and he testified that he was very comfortable with Wesner having unsupervised visitation with the family members.
The trial court denied the motion, concluding that it did not have the authority to allow for unsupervised visitation until after Wesner successfully completed a sex offender treatment program. Wesner argues that the trial court erroneously interpreted the language of section 948.03(5)(a)(5) and probation condition 16 as eliminating the trial court’s discretion until the treatment program is completed. Under our certiorari standard of review, we conclude that the trial court’s interpretation departed from the essential requirements of law.
We read the language of condition 16 and section 948.03(5)(a)(5) as prohibiting unsupervised contact with children under eighteen until after completion of the sex offender treatment program unless, prior to completion of the program, the trial court authorizes such unsupervised contact. We also note that pursuant to section 948.03(6), a trial court has the authority to rescind or modify the terms of probation or community control at any time, but absent a violation of probation or community control, it may not add new conditions or enhance the penalty. See Blair v. State, 805 So. 2d 873, 877 (Fla. 2d DCA 2001); Garvison v. State, 775 So. 2d 340, 341 (Fla. 2d DCA 2000).
By concluding that it did not have the discretion to modify Wesner’s probation to allow him to have unsupervised contact with his son and grandchildren until completion of the sex offender treatment program, the trial court departed from the essential requirements of law. Accordingly, we grant the petition for writ of certiorari and remand for the trial court to consider whether it should approve Wes-ner’s request.
Petition granted.
FULMER and COVINGTON, JJ., concur.
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Spaulding v. State, 93 So. 3d 473 (Fla. 2d DCA 2012)…v. State, 821 So. 2d 416 (Fla. 2d DCA 2002). On at least one occasion, this court has granted relief because the trial court expressly ruled that it did not have authority to modify a condition of probation in such a proceeding. See Wesner v. State, 843 So. 2d 1039 (Fla. 2d DCA 2003). We have once granted certiorari relief on the State’s concession because the defendant’s motion was denied when he failed to attend a hearing that was not properly noticed. See Alexander v. State, 816 So. 2d 778 (Fla. 2d DCA 2002…
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State v. Springer, 965 So. 2d 270 (Fla. 5th DCA 2007)…en congregate. As Mr. Springer correctly points out, the trial court’s order is not appealable. See Baker v. State, 746 So. 2d 469 (Fla. 2d DCA 1997). It is, however, subject to review under this Court’s certiorari jurisdiction. See Werner v. State, 843 So. 2d 1039, 1040 (Fla. 2d DCA 2003). Accordingly, we treat this matter as a petition for writ of certiorari and grant the petition. Mr. Springer pled no contest to various sex offenses, was designated a sexual offender, and placed on consecutive terms of sex…1 / 2
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Stuart v. State, 988 So. 2d 1287 (Fla. 2d DCA 2008)…ALTENBERND, Judge. Steven Stuart appeals the denial of his motion for modification of probation; we treat this appeal as a petition for writ of certiorari and grant the petition. See Wesner v. State, 843 So. 2d 1039 (Fla. 2d DCA 2003). Mr. Stuart is currently on probation for sexual offenses that occurred in 1994. His conditions of probation prevent him from having any contact with children. The victim of his earlier offenses was a daughter, who is now an adul…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Moya v. State, 668 So. 2d 279 (Fla. 2d DCA 1996)
- Bruno Abreu v. State, 660 So. 2d 703 (Fla. 1995)
- Smith v. State, 471 So. 2d 1347 (Fla. 2d DCA 1985)
- Blair v. State, 805 So. 2d 873 (Fla. 2d DCA 2001)
- Baker v. State, 746 So. 2d 469 (Fla. 2d DCA 1997)
- Garvison v. State, 775 So. 2d 340 (Fla. 2d DCA 2000)