MAY IT PLEASE THE COURT. MY NAME IS AL ENE ROGERS AND I REPRESENT MR . WOODSON IN THIS APPEAL.MR. WOODSON WOULD ASK THIS COURT TO RE VERSE THE FIFTH DISTRICT'S HOLDING , FI NDING THAT THE TRIAL COURT WAS CORRECT INVIOL ATING HIS PRO BATION . CORRECT, IN V IOLATING HIS PROBATION. MR. WOODSON MAINTAINS THAT THE COURT AIRED E RRED WHEN IT FOUND THAT THE COURT E RRED, WHEN IT FOUND THAT CHAPTER 48 33 REQUIRED PLEAD YACHT COMPLI ANCE . REQUIRED IMMEDIATE COMPLIANCE .

WE HAVE GOT A SITUATION WHERE A JU DGE HAS IM POSED A CON DITION OF PROBATION. IT IS STATUTE. FOR SEX UAL OFFENDERS, THAT IS VERY STRICT , AND ARE YOU CONTENDING THAT , IF , SAY , THERE WAS A TEN -YEAR PERIOD OF PROBATION , THAT SOME BODY COULD STA RT THEIR SEXUAL OFFENDER TRE ATMENT , EIGHTYEARS INTO IT, THAT THIS STATUTORY S CHEME DOE SN'T ENVISION THAT IMMEDIATELY AFTER THEY ARE PUT ON PROBATION , THAT THEY BE GIN A CTIVE TREA TMENT FOR SEXUAL OFFENDER PROBLEMS ?

I DON'T BELIEVE THE STATUTE AS IT IS WRITTEN ENVISIONS THAT. I THINK THAT, IF THE COURT

YOU THINK THEY COULD WAIT U NTIL YEAR EIGHT TO START SEXUAL OFFENDER TREATMENT?

AT THEIR PERIL , AT THEIR RISK, BECAUSE IF THEY DON'T SUCCESSFULLY COMPLETE THE SEXUAL OFFENDER

SEE, THE RI SK, THOUGH, IS NOT THEIR RISK. THE RISK IS TO SOCIETY, THAT THE ONLY REASON THAT SOMEBODY THAT HAS BEEN PUT ON THIS TY PE OF RIGOROUS TREATMENT , IS BECAUSE THEREIS A CONC ERN THAT THEY ARE, COULD BE A THREAT BUT THEY, UNDER INTENSIVE SUPERVISION , THE Y ARE GOING TO GIVE THEM ANOTHER CHANCE, AND GIVEN THAT LEGISLATIVE CONCEPT IN THE WHOLE SCHEME , I JUST FIND THE ARGUMENT TO SAY, WELL, THERE WASN'T A START DATE GIVEN BY THE JUDGE , TO BE NOT A PROPER STAT UTORY INTERPRETATION OF THE S CHEME. HOW DO YOU RESPON D TO THAT?

BECAUSE MR . WOODSON HAS DUE PROCESS RIGHTS , ANDTHERE ARE OTHER , IN THE FIRST, EXCUSE ME , IN THE SECOND DISTRICT , SPECIFICALLY, THERE ARE CASES WHICH ARE IDENTICAL TO THIS ONE, WHERE A PROBATIONER WHO IS TERMINATED, JUST AS MR. WOODSON WAS , HE WAS GOING TO HIS TREATMENT.

YOU SEE, THERE IS THE FACTUAL DISPUTE , AS TO WHETHER THERE WERE , WHETHER THE PROBATION OFFICER GAVE HIM WA RNING AND WHETHER, UNDER THESE FACTS , H E WAS FAIRLY TERM INATED , BUT I THOUGHT YOU WERE ARGUING FOR THIS BRIGHT-LINE RULE WHICHWOULD SAY THAT , UN LESS THERE IS A DATE SET FOR COMPLETION IN THE PROBATION ORDER , THAT THEY COUL DN'T BE VIOLATED. IS THAT WHAT YOU ARE ASKING U S TO DO?

NOT THAT THERE COULD NEVER BE A VIOLATION. THERE COULD BE OTHER V IOLATIONS OF PROBATION. HOWEVER , IT IS OUR POS ITION THAT, IF THE COURT DOES NOT ESTABLISH A DATE BY WHICH THIS TREATMENT IS TO BE COMPLETED , THEN THE PROBATIONER DOES HAVE THE LENGTH, IF THE STATUTE I S SILENT

SO WE WOULD HAVE TO SET UP SOMETHING LIKE A DRUG COURT FOR Z EB YOU THS ULE FOR SEXUAL OFFENDERS, WHERE THE TRIAL COURT IS THE ONE WHO IS MONITORING DO THEY START OR HAVE THEY FA LLEN OFF. THAT, OTHERWISE HOW IS THE JUDGE TO KNOW WHAT IS THE PROPER DATE THAT THIS HAS TO BE COMPLETED BY? I MEA N, IT IS ALL INDIVIDUALIZED. THAT IS THE WHOLE IDEA OF THIS TY PE OF PROBATION.

YES. AND THE JUDGE , WHEN DECIDING AND DETERMIN ING, IF THE JUDGE CHOOSES TO SET A DATE BY WHICH HE OR SHE WA NTS THIS CONDITION COMPLIED WITH , THEN THE JUDGE CAN SET THAT DATE, AND THEN YOU HAVE THE PROBATION OFFI CER DOING WHAT THE PROBATION OFFICER I S SUPPOSED TO DO AND ESTABLISH ING WHETHER OR NOT THE PROBATIONER IS IN COMPLIANCE WITH THE COURT 'S PROBATION ORDER.

DOES THIS RE ALLY CONTEMPLATE THAT THE PROBATION OFFICE R, REALLY, WOULD TAKE THE LEAD IN THESE THINGS AND TELL THE PROBATIONER , L O OK , YOU HAVE BEEN ORDERED TO DO SEX OFFENDER TREATMEN T. YOU NE ED TO START THIS PROGRAM , AND AS THE PROGRAM IS GOING AL ONG , IT IS REALLY THE PROBATION OFFICER WHO IS MONITORING THE THIS , DETERMINE ING WHETHER OR NOT YOU ARE GOING , WHETHER OR N OT YOU ARE PARTICIPATING , WHETHER OR NOT YOU AREPAYING THE COST OF THIS, ANDSO WHAT IS WRONG WITH THAT K IND OF SCHEME?

THERE IS NOTHING WRONGWITH THAT KIND OF SCHEME. IN FACT

ISN'T THAT WHAT HAPPENED HERE? THE PROBATION OFFICER DETERMINED THAT HE WAS NOT PAYING THE COST OF IT , THATHE WAS GOING AND NOT PARTICIPATING , AND THEN THEY BASICALLY SAID , YOU ARE NOT PARTICIPATING. YOU ARE NOT GETTING ANYTHING OUT OF THIS PROGRAM, AND TOLD HIM THAT HE WAS TERMINATED.

I THINK THE DIFFER ENCE HERE , IS THAT, IN LIGHT OF THE FACT THAT HE ST ILL HAD HALF OF HIS , A YEAR AND-A-HALF OF T IM E LE FT IN ORDER FOR HIM TO COMPLY WITH THESE MAND ATORY CONDITIONS, I F HE WAS IN THE SE COND DISTRICT, HE WOULDN'T HAVE BEEN FOUND IN VIOL ATION.

SO HE, SO THE PROBATION OFFICER SAID, OKAY , YOU ARE MESSING UP ON THIS PROGRAM. I AM GOING TO SEND YOU TO ANOTHER PROGRAM. BASICALLY IS WHAT YOU ARE SAYING? YOU SHOULD KEEP GIVING THE DEFENDANT SOME KI ND OF PROGRAM T O GO TO, UN TIL HIS PROBATION IS OFFICER .

- - UNTIL HIS PROBATION IS O VER.

IF THERE IS NOT A DATE CERTAIN EITHER IMPOSED BY THE LEGISLATURE OR IMP OSEDBY THE COURT.

WH Y IS THE DATE SO CRITICAL HERE , AND THAT IS I , UNDER THE FACTS OF THIS PARTICULAR CASE , IF I UNDERSTAND IT CORRECTLY , HE DID ENROLL IN A PROGRAM , SO I AM A LITTLE CONCERNED A BOUT WHET HER WE ARE UN DULY FOCUSING ON THE DATE , BECAUSE THE DATE , REALLY , IN A SENSE, IS MOOTED HERE , BECAUSE CLEARLY , THERE APPEARS TO HAVE BEEN AN AGREEMENT AND A N UNDERSTANDING THAT HE NEEDED TO ENROLL IN A PROGRAM RIGHT A WAY , AND HE DID. IS THAT CORRECT?

HE DID , YOUR HONOR.

SO I A M MORE CONCERNED ABOUT WHETHER OR NOT IT WAS THE FACT THAT HE DID ENROLL IN A PROGRAM AND HE PARTICIPATED AT SOME LEVEL, BUT, THEN , HE FA ILED TO PARTICIPATE TO THE SATISFACTION OF WHOEVER IS RUNNING THE PROGRAM , AND BECAUSE HE WASN'T DOING THESE OTHER THINGS COMPLETING HIS HOMEWORK ASSIGNMENTS OR PARTICIPATING IN CL ASS AND DOING HIS AUTOBIOGRAPHY AND THE THINGS THAT WERE AN ESSENTIAL PART OF THIS , AND HE WASN 'T PAYING THE FEE , HE WAS TER MINATED FROM A PROGRAM THAT HE DID TIMELY ENROLL IN , AND THE JUDG E HERE HAS, REALLY, FOUND THAT IT WAS HIS TERMINATION FROM THAT AND FAILURE TO SUCCESSFULLY PARTICIPATE , THAT CONSTITUTES HIS VIOLATION. SO I AM A LITTLE CONCERNED ABOUT WHETHER THE TIME IS A RED HER RING HERE, THAT IS AS O PPOSED TO , AND PERHAPS THE HIV TEST IS A BETTER EX AMPLE OF TIME , BUT T O , HE LP M E WITH, S INCE WE ARE NOT T ALKING ABOUT HE DIDN'TENROLL IN A PROGRAM , AND HE THOUGHT HE HAD PLENTY OF TIME TO ENROLL IN ONE , BECAUSE HIS PROBATION WAS STILL LONG ER. HERE WE HAVE EN ROLLMENT AND FAILURE , AND A VIOLATION OF PROBATION BASED ON THAT FAILURE. WHY DOESN'T THAT , R EALLY , REMOVE THE ISSUE OF TIMING AS A GENUINE ISSUE HERE?

THE , BECAUSE IT IS ESTABLISHED PREC EDENT IN FLORIDA, THAT WHEN YOU ARE ON PROBATION , AND YOU FAIL TO COMPLETE A SPECIAL CONDITION , IN THIS CASE A MANDATORY CONDITION, THAT, IF YOU STILL HAVE TIME REMAINING ON YOUR PROBATIONARY ORDER IN WHICHYOU COULD COMPLETE THAT PROBATION , THAT IT IS NOT A WILLFUL AND SUBSTANTIAL VIOLATION. THAT IS THE DISTINCTION.

ARE THOSE OTHER CASE S YOU ARE RE LYING ON , WHERE THE CONDITIONS WERE MAN DATORY BY STATUTE?

IN

THE CONFLICT CASES.

IN LYMAN AND LAWSON , YES , THEY WERE. IN YOUNG , THERE WAS NO 948.03 AT THAT TIME, BUT THE I DEA BE HIND IT WAS THE SA ME. IT IS IMPORT ANT

LET ME, THEN , A SK A SECOND QUESTION.

YES.

WHAT THE JUDGE FOUND HERE, WELL, THE FIRSTQUESTION IS , THE STATUTE THAT APPLIES IN THIS CASE , REQUIRES A CTIVE PARTICIPATION . RIGHT?

YES.

AND THE T R IAL JUDGE FOUNDMR. WOODSON SEND THE BENEFIT OF THE STIPULATED DOWNWARD DEPARTURE AND PART OF THE UNDERTA KING AS PART OF THE STIPULATION , WAS HIS COMPLIANCE WITH AND ACTIVELY PARTICIPATING IN A TREATMENT PROGRAM , AND IT IS THE TESTIMONY OF THE PROBATION OFFICERS AND THE COUNSELOR HERE, THAT HE DID NOT , AND THEY ARE THE ONES IN THE BEST POSITION TO AS SESS WHETHER HIS TREATMENT WAS ACTIVE, WHICH IS ANOTHER WAY OF SAYING WHETHER IT WAS GENUINE PARTICIPATION OR JUST GOING TH ROUGH THE MOTIONS, AND WHAT THE COURTFOUND , BASED ON THE TESTIMONY BEFORE HIM OR HER , WAS THAT THERE WAS NOT ACTIVE PARTICIPATION AS REQUIRED BY THE STATUTE , AND THEREFORE HE HAD VIOLATED THAT MAND ATORY PROVISION OF THE PROBATION, IS THAT CORRECT?

THAT IS CORRECT.

AND SHOULD OUR REVIEW BE WHETHER THAT FI NDING WAS AN ABUSE OF DISC RETION?

I THINK THAT SHOULD BE PART OF THE REV IEW BY THIS COURT. THE POSITION THAT WE HAVE IS THAT FINDING , FIRS T WE DO TAKE ISSUE WITH THE FINDINGTHAT HE WAS NOT ACTIVE LYPARTICIPATING , AND THAT IS A FACTUAL ISSUE. AS THE RE CORD BEARS OUT THAT THE LEVEL OF PARTICIPATIONTHAT HE WAS ENGAGING WITH , WAS COMMON AND EXPECTED FORMEN IN A G ROUP TYPE SETING FOR THIS TYPE OF COUNSELING , THIS SEXUAL BEHAVIOR COUNSELING. BUT GE TTING BACK TO, I THINK, YOUR FIRST QU ESTION , WE MAINTAIN THAT THE FACT THAT THE COURT BELIEVED THAT HE WAS NOT ACTIVELY PARTICIPATING IS A PREMATURE DECISION, IS A PREM ATURE FINDING , BECAUSE HE DID HAVE TIME LEFT ON THE PROBATION .

THAT IS WHERE TIME DOES COME IN, SO WE ARE NOTTALKING ABOUT TIME ANDBEGINNING IT , BUT THIS IDEA THAT SOMEHOW, BY SAYING HE HAD TIME TO COMPLETE I T , YOU ARE READING OUT THE PART THAT SAYS THAT HE HAS GO T TO BE ACTIVELY PARTICIPATING, AND THEN COMPLETE IT. SO IF HE IS NOT , THE UNDERLYING ISSUE IN THIS CASE WAS HIS FAILURE TO NOT ACTIVELY PARTICIPATE, WILLFUL , AND DID HE EXPRESSA WILLINGNESS T O GO INTO ANOTHER PROGRAM.N OW, THAT AS YOU HAVE ADMITTED, IS, THE TRIAL COURT FOUND THAT HE WAS NOT , THAT IT WAS INTENTIONAL AND THAT HE DIDN'T EXPR ESS A WILLINGNESS TO KEEP IT ANDTHAT IT WAS NOT GENUINE, AND THAT IS THE , SO , WHAT , WHAT WOULD YOU SAY SHOULD HAVE HAPPENED? THE JUDGE SHOULD HAVE SAID , W ELL , O VEN THOUGH YOU ARE NOT DOING IT WELL , EVEN THOUGH YOU ARE NOT DOING IT , I SE E YOU HAVE ANOTHER YEAR AND-A-HALF SO YOU HAVE GOTTO DO IT. IS THAT WHAT THE JUDGESHOULD HAVE SAID ?

INITI ALLY I WOULD LI KE TO STATE THAT HE DID EXPRESS A WILLINGNESS TO GO BACK INTO THE TREATMENT AND SAID THATHE DID THINK THAT HE WOULD BENEFIT.

DID HE SAY THAT AT THE PROBATION HEARING?

YES, HE DID.

ISN'T THAT , I MEAN , I THINK THAT, WHEN HE IS FACING, NOW , 11 YEARS , YOUKNOW, A LO T OF , THERE MIGHT BE , THAT IS WHEN, THAT ISWHEN HE SAID IT NOT TO THE PROBATION OFFICER IN, I THINK , WHAT WAS IT , TWOYEARS FROM THE TIME THAT THIS STARTED , THAT THE PROBATION WAS VIOLATED?

IT WAS VIOLATED A YEAR AND-A-HALF INTO THE PROBATION.

SO IT WAS ON GOING KBHUN KMUN INDICATION BETWEEN THE PROBATION OFFICER AND - - THERE WAS ONGOING COMMUNICATION BETWEEN THE PROBATION OFFICER AND THE PROBATIONER D URING TAKE PERIOD OF TIME .

YES, THERE WAS.

AND THE PROBATION OFFICERWAS THE ONE WHO DETERMINED THAT THERE WEREN'T ANY ATTEMPTS TO GENU INELY ACTIVELY PARTICIPATE.

BUT THAT POSITION FROM THE PROBATION OFFICER WAS ARBITRARY AND CAP RISH US, IN THAT MR. WOODSON , AGAIN, IT IS A TIME ISSUE , WAS COMPLYING WITH THE COURT'S ORDER. THE THE MANDATORY CONDITIONS OF 94 8 ARE V ARIES , VERY STRING ARE VERY , VERY STRINGENT H THERE ARE A LOT OF THEM. HE WAS IN COMPLIANCE WITH THE MAJORI TY OF THOSECONDITIONS. THE PROBATION OFFICERS OIFERB'S DETERMINE THE PROBATION OFFICER'S DETERMINATION, A FTER SIXMONTHS OF HIM HAVING REGULAR ATTENDANCE, BASED U PON THE COUNSELOR'S TE STIMONY THAT HE APPE ARED UNINTERESTED AND UNMOTIVATED , ESPECIALLY IN LIGHT OF THE FACT THAT THE COUNSELOR TESTIFIED THAT THAT IS COMMON AND TYP ICAL. IT IS AN ARBITRARY AND CAPRICIOUS VIOLATION, BECAUSE IT DOESN'T SPEAK TO WHETHER OR NOT HE WAS ACTIVELY PARTICIPATING.

WHY DID THEY TERMINATEHIM , I F YOU HAVE A SI TUATION WHERE THE COUNSELOR IS SAY IN G OH, NO, THIS IS WHAT WE EXPECT AND THAT IS , AND SO IT WOULD SEEM TO ME THAT, IF THAT IS WHAT IS GOING ON , THAT THE COUNSE LOR WOULD SAY, WELL , AND WE ARE NOTGOING TO TER MINATE IT TO TER MINATE HIM. THAT WE ARE GOING TO W O RK OUR WAY THROUGH. THAT I AM JUST CONCERNED THAT WHAT SEEMS TO ME THAT YOU ARE IN VITING BY THIS RULE OF TIME, WHEN WE DO HAVE AN ENROLL MENT IN APROGRAM RIGHT AWAY , I S THAT THE PROBATIONER, NOW, CANMORE OR LESS THUMB HIS NOSE AND SAY , LOOK , I HAVE GOT FIVE YEARS ON MY PROBATION . I CAN COMPLETE ONE OF THESEPROGRAMS IN SIX MONTHS. I HAVE ST ILL GOT FOUR YEARSTO GO , AND I AM OUT OF HERE. I AM NOT GOING TO PARTICIPATE IN THIS PROGRAM , AND I AM GOING TO WAIT UNTIL THERE IS A YEAR LEFT OR WHATEVER ON MY PROBATION, AND THEN MAY BE I WIL L TAKE IT SERI OUSLY , AND THAT SEEMS TO ME , TO BE A N ABUSE OF THE PROBATION PRIVILEGE OR PROCESS HERE, AND HELP ME WITH WHY RULING IN YOUR FAVOR WOULDN'T INV ITE THAT KIND O F DISRESPECT TO THE PROBATION?

I UNDERSTAND YOUR POSITION, AND I WA NT TO EXPRESS , A GAIN , THAT SITUATION DID NOT HAPPEN HERE. HE WAS GOING , AND HE WAS T RYING TO DO THE BEST THAT HE COULD, AND EVEN WITH THAT FEAR, IT DOES NOT WARRANT THE POSITION THAT THE F I FTH DISTRICT TOOK , BY READING INTO THIS LEGISLATION A COMPONENT THAT REQ UIRES IMMEDIATE COMPLIANCE , SO SOMEBODY ON THIS PROBATION , SEX OFFENDER PROBATION IN THE FIFTH DISTRICT, M UST IMMEDIATELY RE PORT AND BEGIN COMPLIANCE. SOMEBODY IN ANOTHER DISTRICT DOESN'T HAVE TO. I DON'T SEE THE DISTINCTION BETWEEN THIS TYPE OF PROBATION AND EVERY OTHER

THIS COMES BAC K TO THE ISSUE ABOUT WHETHE R OR NOT THERE IS A DIFFERENCE BETWEEN THIS CONDIT ION.

YES.

AND, PERHAPS , SOME OTHER, YOU KNOW, AN GER MANAGEMENT OR

ABSOLUTELY.

WHILE CLEARLY THERE WOULD APPEAR TO BE SOME CONSISTENT POLICY RULES THAT THE S O ONER THE BETTER, IF SOMEBODY HAS GOT A PROBLEM WITH ANGER , OR DRUGS , OR ALCOHOL, THE SOONER, YOU KNOW , B UT HERE IT APP EARS THAT, BECAUSE THIS IS A VERY ST RICT LEGISLATIVE MANDATED CONDITION , THAT THERE WAS AN INTENTION THAT THERE BE AN IMMEDIATE ENROLLMENT , SO THAT THIS IS PART OF THE SAFEGUARD THAT THIS DEFENDANT IS GOING TO ASSURE THE PUBLIC, YOU KNOW , THROUGH THE COURTS , BY PARTICIPATING IN THIS , AND THEREFORE REDU CING THE DANGER THAT HE MIGHT CONSTITUTE, TO THE GENERAL PUBLIC, SO ISN'T IT , ISN'T THERE , PERHAPS , A GO OD REASON FOR THERE TO AND DIFFERENCE?

I DISAGREE , Y OUR HONOR. I DON'T THINK THAT THERE IS A VA LID ARGUMENT TO BE MADE THAT ME AD COMPLIANCE WITH THIS THAT IM MEDIATE COMPLIANCE WITH THIS TYPE OF PROBATION, VERSUS IMMEDIATE COMPLIANCE WITH DRUG OFFENDER OR SOME OTHER TYPE OF ANGER MANA GEMENT , I DON 'T SEE THE DISTINCTION THAT THERE IS ANYMORE DANGER TO BE HAD.

YOU DON'T THINK THAT THE LEGISLATURE AND THE PU BLIC GENERALLY , IS MORE CONCERNED WITH, I MEAN , CLEARLY FROM THE PANO PLY OF LAW S AND HERE WE END UP WITH A LAW THAT YOUR CLIENT MAY WELL BE EXPOSED TO , UNDER THE "JIMMY RYCE" ACT .

SHE IS I N HER REBUTTAL AND JUSTICE CANTERO HAD AQUESTION.

IN THIS CASE, DIDN'T THE PROBATION OFFICER SPECIFICALLY TEST IFY , A LSO , THAT SHE IMPOSED CERTAIN REQUIREMENTS ON THEDEFENDANT.SHE SAID , I WANT YOU TO B RING YOUR HI V TEST BY X DATE AND HE DIDN'T DO IT. HE N EVER G AVE HER AN EX CUSE FOR NOT DOING T SHE REPEATED THE ADMONITION BRING YOUR HIV TEST. HE DIDN'T BR ING IT IN. HE DIDN'T OFFE R AN EXCUSE FOR NOT BRINGING IT IN , AND I F WE HOL D IN YOUR FAVOR, AREN'T WE JUST SAYING IT DOESN'T MATTER WHAT THE PROBATION OFFICER REQUIRES T MATTERS WHAT THE STATUTESAYS. THE STATUTE DOESN'T PRE SENTANY TIME DEADLINES. THE JUD GE DIDN'T G IVE ANY TIME DEAD LINES , SO THE PROBATION OFFICER CAN'T GIVE ANY TIME DEAD LINES.

YOUR HONO R, IF YOU HOLD IN MY FAVOR , W HAT YOU ARE SAY ING IS THE PROBATIONOFFICERS, AS THEY HAVE ALWAYS BEEN REQUIRED TO D O, MUST UP HOLD THE IN ITIAL ORDER OF PROBATION F R OM THE TRIAL COURT , AND

SINCE THE INITIAL PROBATION ORDER DID NOT CONTAIN A TIME, THE PROBATION OFFICER HAD NO DISCRETION WHATSO EVER, TO SAY YOU NE ED TO BRING YOUR HIV TEST WITHIN SIX MONTHS , WITHIN A YEAR. YOU CAN'T SAY THAT , BECAUSE THE JUDGE DIDN'T SAY WITHIN A YEAR, SO SHE CAN'T GIVE ANY KIND OF DEADLINE?

SHE DOESN'T HAVE THE AUTHORITY TO ORDER SOMETHING THAT IS NOT I N THE ORIGINAL COURT ORDE R. THAT WAS FOR THE JUDGE TO DETERMINE.

AND THAT IS WHER E WE GETBACK TO THE STATUTE , IS SPECIFIC AS TO THE ACT OF PARTICIPATION, AND IF YOUWANT TO SAVE TIME FOR REBUTTAL.

YES, I DO. THANK YOU .

MAY IT PLEASE THE COURT. MY NAME IS PAM KOLLER AND I REPRESENT THE ATTORNEY GENERAL IN THIS APPEAL.

WOULD YOU GIVE US AN IDEA, FROM THE TIME THAT THIS PROBATION WAS IMPOSED , EXACTLY WHAT THE PROBATION OFFICER TESTIFIED AND WHAT THE RECO RD SHO WS, AS TO THE INTERACTION BETWEEN THE PROBATIONER AND THE PROBATION OFFICER , AND THE REASON I AS K THAT , IS BECAUSE IF YOU L OO K AT THIS VERY S PECIFIC STATUT ORY SCHEME, YOU KNOW , YOU HAVE SEXUAL OFFE NDER PROBATION OFFICERS WHO HAVE RED UCED CASELOADS. THEY EMPHASIZE TREATMENT AND SUPERVISION. AND INDIVIDUALIZED TREATMENT , AND THEY HAVE TO HAVE SPECIALIZED TRAINING, SO WE DON'T, WHAT I AM AFRAID OF THAT I WAS SEE ING IN THIS RECORD WAS SOME HOW A PROBATION OFFICER THAT WAS SAYING, WELL, YOU DIDN'T GO TO THAT PROGRAM , SO, YOU KNOW, AND YOU HAD NO EXCUSE SO NOW I AM TERMINATING YOU , AS O PPOSED , OR I AM GOING TO TELL THE JUDGE THAT YOU ARE NOW IN WILLFUL VIOLATION , AS O PPOSED TO REALLY UNDERSTANDING THAT YOU ARE DEALING WITH A U N IQUE KIND OF OFFENDER AND THAT, MAYBE , HE NEE DED AN INDIVIDUALIZED PROGRAM OR WHAT EVER, S O IF YOU CAN SORT OF TELL US HOW , WHAT KIND OF INTENSIVE SUPERVISION THERE WAS AND WHY THIS VIOLATION WAS WILLFUL .

CERTAINLY. WHEN HE ORIGINALLY WAS SENTENCED ON JULY 31 , HE WAS INFORMED OF HIS CONDITIONS. ONE OF WHICH WAS THAT HE WOULD SUB MIT TO SEX OFFENDER COUNSELING. WHEN HE WENT BACK TO SPEAKWITH HIS PROBATION OFFICER, AGAIN HE HAD TO S IGN A FORM SAYING THAT HE UNDERSTOOD THAT THAT WAS ONE OF THE CONDITIONS OF HIS PROBATION. HE EN TERED A PLEA AGRE EMENT TO SEX OFFENDER PROBATION FOR THREE YEARS. HE WAS RE FERRED TO A SEX OFF ENDER TREATMENT COUNSELING PROGRAM BECAUSEHE WAS REQUIR ED TO D O IT . APPARENTLY HE WAS APPEARING , I GU ESS , IN A FIVE-MONTH PERIOD, THEY SAID HE SHOWED UP, MAYBE , 17 , 18 TIMES. HE DID NOT SHOW UP FOR THREE TIMES.HE WOULD SHOW UP AND BASICALLY NOT PARTICIPAT E AT ALL. INTACT, HE EVEN SLEPT - - IN FACT, HE EVEN SL EPT D URING SOME OF THE CLASSES.

DURING THAT TIME PERIOD WHEN HE WASN'T, REALLY , SEEMED TO BE MOTIVATED , DID THE COUNSELOR GET BACK WITH THE PROBATION OF FICER , TO TELL HIM OR HER THAT H E WASN'T ACTI VELY PARTICIPATE SOMETHING .

THE REC ORD INDICATES , OBVIOUSLY, THAT THE COUNSELOR DID SPEAK TO THE DEFENDANT AND SAY YOU ARE N OT PARTICIPATING. YOU ARE NOT DOING YOUR HOMEWORK. YOU NEED TO DO BE TTER OR YOUARE NOT GOING TO PROGRESS I N THIS PROGRAM. THE PROBATION OFFICER, APPARENTLY IN HER VIOLATIONREPORT, INDICATES SHE TOLD THE DEFENDANT HERSELF, YOU ARE NOT PARTICIPATING. YOU ARE NOT DOING WHAT YOU ARE SUPPOS ED TO. YOU COUL D GET VIOLATED IF YOU DON'T DO THIS. HE DIDN'T CHANGE HIS BEHAVIOR AT ALL. HE CONTIN UED TO NOT PARTICIPATE AND NOT APPEAR INTERESTED AND HE WAS EVENTUALLY VIOLATED FOR THAT.

WAS THERE A TIME WHERE THE PROBATION OFFICER SA T, BECAUSE, AGAIN , WHAT WAS , LET ME ASK YOU WHAT WAS HIS INDIVIDUALIZED TREATMENT PLAN? IS THERE ONE IN THE RECORD AS TO, WHAT HOW HE WAS , YOU KNOW, INDIVIDUALLY TO BE TREATED?

HE WAS SUPPOSED TO PARTICIPATE IN GROUP THERAPY. THE COUNSELOR TESTIFIEDTHERE WAS NOTHING PSYCHOLOGICALLY PROHIBITING THE DEFENDANT FROM BENEFITING FROM A GR OUP THERAPY SITUATION. WHEN THE DEFENDANT TOLD HIMI DON'T LIKE IT, H E SAID , WELL, NO BODY DOES , BUT YOUHAVE GOT TO DO IT ANYWAY , IN ORDER TO PROGRESS IN THIS PROGRAM. AND HE SAID , IN FA CT, IF YOU DO WHAT YOU ARE SUPPOSED TO DO, IF YOU FINISH YOUR MODULES, AS THEY CALL THEM, YOUR HOMEWORK ASSIGNMENTS , HE SAID, YOU GET A FINAL EXAM, AND THEN IF YOU PASS THAT FINAL EX AM, YOU ONLY HAVE TO SHOW UP ON CE A MONTHFOR A CHECKUP. YOU DON'T HAVE TO BE HERE EVERY WEEK FOR COUNSELING.

SO FOR THE 17 TIMES HE WAS GOING , WAS THAT ONCE A WEEK?

YES.

SO THAT WAS OVER , FROM THE TIME THE PROBATION STARTED , UN TI L THE L AST THREE TIMES , HOW MANY MON THS HAD ELAP SED?

WELL , THIS COUNSELOR ONLY KNEW ABOUT FIVE MONT HS OF IT , BECAUSE HE WAS REFERRED, ITHINK HE STA RTED IN AUGUST.

SO HE DID STAR T. HE STARTED IMMEDIATELY.

RIGHT. HE STARTED IMMEDIATELY. THIS COUNSELOR ONLY SUPERVISED HIM, I THINK , FOR FIVE MONTHS OF THAT PERIOD , THE LAST FIVE MONTHS OF IT.

SO , BUT , SO HOW MANY , UNTIL, HE STARTED UNTIL HE WAS TOLD THAT HE COULDN'T CONTINUE IN THAT PROGRAM , HOW MANY MONTHS HAD GONE BY?

HE WAS TERM INATED FROM THE PROGRAM MAY 30. SO HE STARTED IN AU GUST OR SEPTEMBER.

AND THEN WAS HE, DID HE INDICATE AT THAT T IME , DID THE PROBATION OFFICER GO RIGHT AWAY , TO COURT TO VIOLATE HIM , O R WAS THERE ANY ATTE MPT TO SEE A BOUT HIMGOING BACK INTO THAT PROGRAMOR TO ANOTHER PROGRAM?

HE WAS TERMINATED 3450 I. THE DEF ENDANT WAS TERMINATED MAY 306789 THE DEFENDANT WAS SUPPOSED TO SHOW UP WITH AN HIV TEST PROOF IN JUNE. APPARENTLY SHE WOULD SEE HIMAT THE PROGRAM. SHE WOULD SEE HIM AT THE TREATMENT THER APY PLACE AND T ALK TO HIM AND TELL HIM.

IS THAT IN YOUR RECORDS?

YES. SHE SAID SHE SAW HIM NUMEROUS TIME AND TOLD HIM I NEED PROOF OF HIV TESTING , I NEED PROOF OF HIV TESTIN G, AND FINALLY SHE SENT HIM A LETTER SAYING I HAVE TO HAVE THIS BY JUNE 5 OR YOU AREGOING TO BE IN TROUBLE , AND HE ST ILL DIDN'T SHOW UP ON JUNE 5 WITH PROO F OF IT, EVEN THOUGH HE CLAIMED HAD HE TA KEN THE TEST TWICE.

ACTUALLY HE WAS SENTENCED IN JULY 2000.

CORRECT.

AND THEN HE GOT A NEWOFFICER IN '01.

I THINK IT WAS JULY 2 001.

20 01. SO I AM SAYING FOR THE FIRSTYEAR OF PROBATION, THERE IS NO EVIDENCE THAT I SEE THATHE DID ANY SEX OFFENDER TREATMENT PROGRAM.

IT SAID THAT HE WAS REFERRED. I KNOW HE WAS EVALUATED ON A UGUST 6.

BOTTOM LINE , HE DIDN'T GET VIOLATED, THE VIOLATION WAS NOT FILED UNTIL THE SUMMER OF '02 AND HE WAS PLACED ON , TWO YEARS EARLIER.

CORRECT. NO. ONE YEAR EARLIER .

HE WAS SENTENCED IN JULY OF

2001.

WAS IT IT 2001?

YES.

SO HE STARTED THIS PROGRAM AL MOST IMMEDIATELY A FTER SENTENCING, IS THAT CORRECT?

THAT IS WHAT IT APPEARS. I CAN' T BE S U RE.

HELP ME W ITH THE PROPOSITION, YOU KNOW , THERE ARE CONFLICTING THINGS GOING ON HERE. EVEN THE TRIAL COURT , OFCOURSE, SAID THE BETTER PRACTICE IS TO HAVE TIME STANDARDS HERE, BUT HE WAS CONCERNED AB OUT THE STATUTORY SCHEME.

SURE.

AND CL EARLY TIME STANDARDS DO , OBVIOUSLY , HELP, AS THE SE COND DIST RICT HAS INDICATED IN A NUMBER O F TIMES. I AM TRYING TO GET, THOUGH, TO SORT OF THE MEAT OF COCONUT , AND THAT IS DO WE HAVE A SITUATION HERE , WHERE THE COUNSELOR , WHO I ASSUME WOULD BE THE MOST IMPORTANT WITNESS IN T HIS CASE , REALL Y , IS TESTIFYING TO THE TRIAL COURT JUDGE THAT , JUDGE , YOU KNOW , WE HAVE T RIED TO WORK WITH THIS FELLOW, AND IT ISN'T WO RKING , AND HE SHOULD BE TERMINATED , BECAUSE HE IS NOT COOPERATING , AND REALLY IT IS NOT A MA TTER OF TIME. IT IS A MATTER O F FA ILURE , AND SO THAT WOULD SEEM TO ME , TO BE , IF A TRIAL JUDGE, THEN, BASED ON THAT KIND OF EVIDENCE AND TESTIMONY , THAT THIS PERSON IS JUST REJECTING THIS REQUIREMENT , THAT THAT SEEMS TO BE THE K IND OF SITU ATION THAT THEY PROBABLY SHOULD BE VIOLATED , YOU KNOW , AND NOW I AM CONCERNED ABOUT THAT , TH OUGH, AS O PPOSED TO , WELL , HE IS ATTENDING THE SESSIONS, BU T IS HE NOT DOING SOME OF THE THINGS THAT HE SHOULD DO, AND THIS IS WHAT WE TYPICALLY SEE , IS THAT INITIALLY , THEY RESIST , AND THEY DON'T WANT TO SAY OUT L OUD, YOU KNOW, THAT THEYHAVE GOT A PROB LEM OR W RITE IT DOWN , AND , IN A N AUTOBIOGRAPHY OR WHAT EVER , AND IF HE WILL COME , THAT WE CAN WORK OUR WAY THROUGH THIS , AND THAT THAT IS , REALLY, YOU KNOW , WHAT WE WANT TO DO. HELP ME, IF WE CAN CHARACTERIZE THIS CASE IN ONE PLACE OR THE OTHER HERE.

THIS ACTUALLY KIND OF GETS BACK TO WHAT MY MAIN POSITION IS, WH ICH IS AL L WE HAVE HERE IS AN ABUSE OF DISCRETION CASE. I MEAN , THIS, THESE ARE F ACTUAL DISP UTES. THIS IS BAS ICALLY A TRIAL JUDGE HOLD ING A HEARING AND LISTENING TO ALL OF THESE DIFFERENT TYPES OF F ACTS, WHETHER OR NOT H E HAD JUST STARTED HIS PROBATION FOUR MONTHS AND HADN'T BEEN TERMINATED, IS THAT AVIOLATION , BUT H E WASN'T PARTICIPATING , IS THAT A VIOLATION. IF HE HAS BEEN ON PROBATIONFOR TWO YEAR S AND HE HASN'T SIGNED UP FOR THE CLASS , ALL OF THESE THINGS ARE DIFFERENT FACTS , BUT THAT IS WHY WE HAVE A HEARING AND THAT IS WH Y WE HAVE AN ABUSE OF DISCR ETION STANDARD.

BUT WE WAN T THIS STUFF TO WORK. OKAY. W E CAN HAVE AN ABUSE OF DISCRETION STANDARD , WHERE WE MAY HAVE ONE TRIAL JUDGE THAT, BY GOSH , YOU DON'T F ILE ONE RE PORT , AND I DON'T CARE WHETHER YOU GOT IN AN AUTOMOBILE WR ECK THE DAYTHAT YOU WERE HEA DING DOWN THERE TO FILE IT , B OY , I AM GOING TO N AIL YOU, THAT IT WAS A PRIVILEGE THAT YOU GOT ON PROBATION, KIND OF THING TO BE GIN , WITH AS OP POSED TO ANOTHER JUDGE THAT BENDS OVER BACKWA RDS OR SOMETHING. WE WANT THIS TO W ORK , REALLY , IS WHAT

SURE.

SO TELL ME WHAT THE STRONGEST EVIDENCE WAS HERE , F ROM THE COUNSELOR OR OTHERWISE , THAT THIS PERSON , R EALLY , WAS WILLFULLY IGNORING THESE REQUIREMENTS OF HIS PROBATION. WHAT WAS THE STRONGEST EVIDENCE THAT, DID IT THE COUNSELOR SAY SOMETHING THAT , JUDGE , IT IS NOT GOING TO WORK WITH THIS GUY?

THE COUNSELOR SAID , YES , HE WAS MA KING N O PROGRESS , T HAT HE WAS UNMOTIVATED, UNINTERESTED. HE HAD SPOKEN TO THEDEFENDANT ABOU T IT AND THE DEFENDANT DID NOTHING TO CHANGE IT.

SO THAT WAS THE TESTIMONY.

YEAH , AND THERE WAS NO TES TIMONY HE HAD EVER BEEN ASKED OR THERE WAS ANY INQUIRY WHET HER OR NOT THE DEFENDANT COULD GET BACK INTO THE PROGRAM. THE ONLY TIME WE EVER HEARD ANYTHING ABOUT THAT IS HIS LAWYER SAID DO YOU NEED COUNSELING AT THE HEARING. YEAH. I NEED COUNSELING. WOULD YOU GO BACK? YES, I WOULD .

LET ME TALK ABOUT THE CONFLICT IS SUE. WHEN YOU C ITED THE SUPPLEMENTAL AUTHORITY OF THE MIL LS CASE OUT OF THE FOURTH DISTRICT , AND THEY S EEM TO CHARACTERIZE THAT ALL OF THESE CASES ARE ACTUALLY , R EALLY , NOT IN CONFLICT.

CORRECT.

THEY SAY THAT GENERALLY UNEXCUSED AND SE NSES FROM REQUIRED THERAPEUTIC PROGRAMS CONSTI TUTE WILL FUL VIOLATIONS, AND THEN THERE ARE CITA TIONS TO SOME CASESINCLUDING SOME FROM THE SECOND DIST RICT, AND TH EY SAY WH ILE THE CITED CASES DID INVOLVE THE LA CK OF SPECIFICITY AS TO A TIME PERIOD, THEY ARE DISTINGUISHABLE , BECAUSE IN EACH CASE THE CONDUCT WAS NOT DE EMED WILLFUL , AT PERSON HAD EXPRESSED WILLINGNESS TO COMPLETE THEPROGRAM.

CO RRECT.

DO YOU THINK THE SECOND DISTRICT ENUNCIATED ABRIGHT-LINE R ULE ABOUT , BECAUSE THERE IS NO DATE FOR COMPLETION, YOU CAN'T VIOLATE SOME BODY BE FORE THE E ND OF THE PROBATIONARY PERIOD?

I DON'T THINK SO.BECAUSE IF YOU LOOK AT YOUNG, THE CASE T HAT THE FI FTH C ITED CONFLICT WITH , IT WAS DIFFERENT FA CTS. A LL THE DEFENDANT WAS ORDERED TO DO IN THAT CASE WAS COMP LETE MDO COUNSELING.HE WAS NEVER TOLD TO ACTIVELY PARTICIPATE I N COUNSELING. IN THAT ONE HE HAD A PERSONALITY CONF LICT WITH HIS COUNSELOR. THE COUNSELOR TESTIFIED I WILL TA KE HIM BACK. THE DEFENDANT AS KED FOR A CONTINUANCE TO GET INTO ANOTHER PROGRAM. WE HAVE NONE OF THESE FACTS IN THIS CASE, AND THIS IS SUCH A FACT-INTENSIVE SITUATION AS YOU STATED IN STATE V CARTER, IT IS ACASE-BY-CASE ANALYSIS , ANDSO THE FACT S ARE SO IMPORTANT IN THIS THESE CASES AND THE FACTS ARE V ERY DIFFERENT BETWEEN THIS CASE AND YOUNG AND LAWSON. THEY ARE VERY DIFFERENTFACTS, AS FAR AS WHAT WE HAVE.

IT SEEM S THAT MOST OF THE FOCUS WAS ON WHETH ER HE WAS ACTUALLY PAYING AS HE WE NT , AND YOU KNOW , THIS PERSON CLEARLY HAD SOME ET CETERA, BUT YOU KNOW , AGAIN , I N TERMS , IT I S A SIGNIFICANTDECISION, WHEN SOMEBODY WHO IS GLITCHES ESSENTIALLY A YEAR I N IS G IVEN ESSENTIALLY A YEAR IN JAIL IS NOW GOING TO B E SENT ENCED OR I AS SUME NOW IS SERVING T IME , EL EVEN YEARS , AND YET A GAIN, IF HE , SO WAS THE FOCUS ON THE NOT PAYING AS HE WENT , IS THAT REALLY WHYHE WAS DISCHARGED?

NO. THAT IS WHAT THE COUNSELOR EXPLAINED.HE SAID, WE CAN TERMINATE PEOPLE THE PROGRAM WHEN THEY ARE $75 IN A R REARS , WHICH WOULD BE THREE WEEKS OF COUNSELING NOT PAID FOR. HE SAID WE WAITED UNTIL HE WAS ALMOST $600 IN ARREARS. I TRIED TO WORK WITH THIS MAN.I KNEW HE HAD FINA NCIAL PROBLEMS. HE WAS NOT PROGRESSING SO WE TERMINATED . IF HE HAD BEEN PROGRESS ING AND DOING HIS HO MEWORK , HEWOULD HAVE STILL KEPT HIM.

DID IT GO 3450EDLY TO THE VIOLATION IMMEDIATELY TO THE VIOLATION OF PROBATION , OR WAS THERE ANY DISCUSSION BETWEEN PROBATION OFFICERAND THE DEFENDANT ABOUT THE CONSEQUENCES OF THIS TERMINATION? TIME NOT SURE.THERE IS NO TESTIMONY. HE WAS TERMINATED MAY 30E. I KNOW HE WAS IN , TALKING TO HIS PROBATION OFFICER ON JUNE 5, BECAUSE THAT WASWHEN HE WAS SUPP OSED TO B RING HIS HIV TESTING PRO OF, AND THEN HE WAS TERMINATED OR VIOLATED IN AUGUST.

DID HE EVER GET THE RESULTS OF THE , I KNOW THAT HE ALLE GEDLY HAD

NO, SIR, AND H E EVEN ADMITTED AT THE HEARING, R EALLY , THE ONLY EVIDENCE THIS COURT HAS , THAT I DIDTAKE THE TE ST, IS MY TESTIMONY.THAT IS THE ONLY THING YOUHAVE GOT IN FRO NT OF YOU. HE NEVER PROVIDED.

I THOUGHT HE HAD A RECEIPT.

HE CLAIMED IT WAS A RECEIPT BUT HE ADMITTED I T SAID NOTHING ABOUT HIV TESTING. SO I ME AN THAT , IS IDEA STATE OBJECTED AND SAID IT DOESN'T EVEN SAY ANYTHING A BOUT HIV TESTING SO ALL WE HAVE IS YOUR TESTIM ONY, AND HE SAID , Y EAH, THAT IS ALL YOU HAVE GOT.

ARE TRIAL JUDGES AROUND THE STATE, WITH THIS TYPE OF SEXUAL OFFENDER PROBATION, ARE THEY, ARE ANY JUDGES P UTTING MORE SPECIFIC LANGUAGE IN THE OR DER ? AND HAVING ANY TYPE OF MONITORING, YOU KNOW, WHERE THEY COME BACK IN SIXMONTHS?

I THINK A COUPLE OF THE CASES THAT THE FIFTH DCA CITED IN THEIR OP INION , DO TALK ABOUT TIME LIMIT ATIONSTHAT WERE GIVEN TO DEFENDANTS. I DON'T KNOW ABOUT SEX OFF ENDER PROBATION.

I AM TA LKING SPECIFICALLY ABOUT SEX OFFENDER PROBATION.

NOT THAT I KNOW O F PERSONALLY. NOT THAT I KNOW OF.

ISN'T IT REALLY , UNTIL YOU GET THE EVALUATION ANDKNOW THE TYPE OF COUNSELING NEEDED, THAT IT IS REALLY SO INDIVIDUALIZED.

CORRECT.

THAT IT IS HARD , UN LIKE ANGER MANAGEMENT , WHICH IS A NINE-WEEK PROGRAM OR DOMESTIC VIOLENCE , 24 OR 26 WEEK PROGRAM OR WHAT EVER.

RIGHT.

MY UNDERSTANDING IS IT IS SO INDIVIDUALIZED, IT WOULD BE HARD TO DO IT UNLESS YOU GOT THEM EVALUATED AND BROUGHT THEM BACK AND WENT THROUGH A MODIFICATION PROCESS.

R I GHT.THAT IS WHY YOU DO AN EVALUATION TO BEGIN WITH.

IN THIS CASE T HERE WAS AN EVALUATION AND THEN ATREATMENT PLAN WAS PUT INTO PLACE.

YES.

IN THE TREATMENT PLAN , IT SAID YOU ARE GOING TO GO TO THIS PARTIC ULAR PROGRAM.

PRESUMABLY.

IT IS NOT IN THE RECORD.

THERE IS NOTHINGSPECIFIC. HIS COUNSELOR SAID HE WASEXPECTED TO SHOW UP FOR HISGROUP THERAPY. HE WAS EXPECTED TO PARTICIPATE.

IT FEELS A LI TTLE BIT L IKE THE PROBATION OFFICER WAS GOING THROUGH THE MOTIONS. AGAIN , WHEN YOU READ THE STATUTORY SCHE ME, YOU KIND OF HAVE THIS MORE OF AN IMPRESSION THAT IT IS GOINGTO WORK LIKE DRUG COURT , WHERE THERE IS GOING TO BE A LOT OF INTENSIVE INTERACTION.

THERE WAS TESTIMONY THAT SHE WAS SAY ING SEEING HIM AT HIS TREATMENT FACILITY QUITE OF TEN . SHE SAID EVERY TIME I RANINTO HIM AT HIS SEX OFFENDER COUNSELOR PROGRAM, I TALKED TO HIM.

RUNNING INTO SOMEBODY IS NOT THE SA ME

HE WAS SHOWING UP AT HER OFFICE, TOO. HE WAS REQUIRED TO SHOW UP AT HER OFFICE AND TAL K TO AND SU BMIT MONT HLY REPORTSAND THAT IS W HEN SHE WAS TELLING AM I NEED TO SEE YOUR HIV TESTS AND, L OOK , I HEAR YOU ARE NOT PARTICIPATING IN YOUR COUNSELING. YOU NEED DO SOMETHING OR YOU ARE GOING TO GET RIGHTED. SHE WAS COUNSELING AND TO GET VIOLATED.SHE WAS COUNSELING AND TRYING TO WORK WITH HIM.

IN THE PROGRAM , IT LO OKS LIKE IN THE PROGRAM, IT L OOKS LIKE THERE SHOULD BE SPECIALIZED TRAINING AND IT IS UP TO THE OFFICER TO IMPLEMENT AND DEVELOP THE SUPERVISED TREATMENT PLAN, SO, AGAIN, I AM ENVISIONING WHE N I LOOK AT THIS , THAT THIS IS MORE LIKE THE OFFICER IS A DRUG COURTJUDGE , KEEPS ON MONITORING AND HELPING TO MAKE SURE YOU KNOW, THAT THIS IS BEING ACTIVELY DONE, BECAUSE, AGAIN , WE ARE NOT REALLY, IAM NOT AS CONCERNED ABOUT WHETHER THIS PROBATIONER GETS VIOLATED OR NOT.I AM CONCERNED THAT IN THE INTERIM , THIS COULD BE A THREAT TO THE PUBLIC , I F HE IS NOT ACTIVELY DOING WHAT HE NEEDS TO DO TO GET BETTER.

WELL , OBVIOUSLY THAT WAS NOT A CONCERN TO THE PARTIES BELOW. NOBODY WAS ASKING ABOUT IT. NOBODY WAS WANTING TO KNOW DID YOU DO WHAT YOU WERE SUPPOSED TO DO , TO THE PROBATION OFFICER. PRESUMABLY THEY WERE ALLHAPPY WITH HOW THINGS WERE BEING HANDLED, SO THAT WASNEVER RA ISED OR NEVERDISCUSSED OR QUESTIONED BELOW. OBVIOUSLY OUR MAIN POINT IS THAT THERE IS NO JURISDICTION WITH THIS COURTBECAUSE THERE IS NO CONF LICT WITH EITHER YOUNG OR LINE A.M. OR LA WSON . O R LYNUM OR LAWSON. EACH CASE IS GOING TO BE DIFFERENT AS RESULT , B ASED ON EACH DIFRAENT DEFENDANT'S DIFFERENT D EFENDANT'S ABILITY AND INABILITIES ANDSO FORTH AND BASICALLY ALL WE HAVE TO PRO VE IS THAT THERE WAS COMP ETENT SUBSTANTIAL EVIDENCE TO SUPPORT HIS FINDINGS THAT THE DEFENDANT WAS WILLFULLY IN VIOLATION OF HIS PROBATION SUBSTANTIALLY ANDI THINK THERE IS EVIDENCE OF THAT IN THIS CASE.

WHY DIDN'T THE DCA FIND THAT?

BASICALLY ALL THEY FOUNDWAS THE TRIAL COURT DID NOT ABUSE ITS DISCRETION AND TALKING ABOUT PO LICY REA SONS AS FAR AS SEX OFFENDER BEING A LITTLE BIT DIFFERENTBECAUSE IT IS STATUTORY-REQUIREDCONDITIONS, BUT THIS IS SLAFERP FINDING THAT THERE WAS NO AND SIMPLY A FINDING THAT THERE WAS NO ABUSE OF DISCRETION BY THE TRIAL COURT , BY THE FIFTH DCA.

THAT IS WHY THEY INTERPRET , THERE IS LANG UAGEIN THE SE COND DISTRICT OPINION THAT WOULD APPEAR TO STATE, BECAUSE THERE WASN'T A TIME SET FOR COMPLETION,THAT YOU COULD NOT BE IN VIOLATION OF YOUR PROBATION , UNLESS THERE WAS A TIME SET, SO WHETHER IT IS THE FACTS ARE DIFFEREN T, THERE SEE MS TO B E THAT BROAD UNDERSTANDING IN THE SECOND DISTRICT, THAT, AS MS. ROGERS SEEMS TO SAY , THAT YOU HAVE REALLY UNTIL THE END OF YOUR PROBATION TO COMPLETE IT, SO IF YOU HAVE BEEN TERMINATED , YOU SHOULD BE GIVEN AN OTHER CHANCES ESSENTIALLY.

WHICH DOES NOT COMP ORT WITH FLORIDA LAW, BECAUSE AS MRS. CARTER SAID , THERE ARE NO PER SE RU LES. I T IS A CASE-BY-CASE ANALYSIS AND IT IS THE PARTICULAR DEFENDANT ANDTHAT SITUATION OF THE DEFENDANT, IF HE HAS GOT TRANSPORTATION PROB LEMS OR PSYCHOLOGICAL PROBLEMS OR WHATEVER IT MAY BE THAT INTERFERES WITH HIS AB ILITY TO COMPLY WITH HIS CONDITIONS. THAT IS UP FOR THE TRIAL JUDGE TO HEAR ABOUT AND MAKE A DETERMINATION.

BUT THE PO INT IS, DON'TWE HAVE TO RESOLVE THAT QUESTION AS TO WHETHER, WHERE THE STATUTE DOESN'T GIVE A CERTAIN DATE AND THE JUDGE DOESN'T GIVE A CERTAIN DATE, WHETHE R THE DEFENDANT CAN BE VIOLATED WHERE H E DOESN'T COMPLETE IT WITHIN AFEW MONTHS?

I DON'T THINK SO. I THINK IT JUST DEPENDS ON EACH, IT IS A CASE-BY-CASE ANALYSIS , AND I MEAN, IN THIS CASE THE DEFENDANT CLEARLY WASN 'T GOING TO FINISH HIS COUNSELING OR SUCCESSFULLY COMPLETE HIS COUNSELING, BECAUSE HE WASN'T PARTICIPATING. HE WASN'T DOING HIS HOMEWORK. THEY GAVE HIM PLENTY OF OPPORTUNITY AND HE DIDN'T DO IT, WHETHER OR NOT HE HADTIME. OBVIOUSLY A TIME LI MITATION HELPS SHOW A WILLFUL VIOLATION. THE TRIAL COURT COULD IM POSE IT. THE LEGISLATURE COULD IMPOSE SOME SORT OF TIME LIMITATION.

DOESN'T THE TIME LIMITATION, REALLY , DEPENDON WHAT KIND OF PROGRAM YOU GET IN.

EXACTLY .

BECAUSE DIFFERENTPROGRAMS, I WOULD IMAGINE , TAKE DIFFERENT TIMES TO COMPLETE, SO DEPENDING ON WHAT INDI VIDUAL PROGRAM THE DEFENDANT, THE PARTIC ULAR DEFENDANT IS REQUIRED TO PARTICIPATE IN, WOULD DEPEND ON THE TIME THAT HE NEED S TO COMPLETE IT. WOULDN'T IT?

ABSOLUTELY, AND SEX OFF ENDER COUNSELING IS DIFFERENT, I MEAN, AS JUSTICE BE LL WAS EXPLAINING. IT IS DIFFERENT FROM A SHOPAHOLIC CLASS, WHICH IS A CERTAIN NUMBER OF DATES THAT YOU HAVE TO S HOW UP FOR. THAT SORT OF THING. THIS IS DIFFERENT , BECAUSE EACH PERSON HAS THEIR O WN FANTASIES AND THINGS THAT TRIGGER THIS BEHAVIOR THAT THEY ARE TR YING T O PR EVENT , AND SO IT IS V ER Y DIFFERENT FOR EACH DEFENDANT .

CHIEF JUSTICE: THA NK YOU.

IF THERE ARE NO FURTHERQUESTIONS, THANK YOU.

CHIEF JUSTICE: REBUTTAL.

THANK YOU . THE ISSUE HERE , I S THAT SOMEBODY PLACED ON SEX OFFENDER PROBATION IN THE FIFTH DIST RICT , M UST IMMEDIATELY BE GIN THE MANDATORY CONDITIONS, IF THE TRIAL COURT DOES NOT SET A SPECIFIC DATE .

OK AY .

DOESN' T IT SEEM AS TH OUGH WE , REALLY, ARE TALKINGABOUT WHY THIS DIDN'T HA PPEN WITHIN A TIME PERIOD, BECAUSE IT APPEARS, CERTAINLY, THAT IF YOU HAD HAD OTHER FACT ORS THAT PREVENTED THE PERFORMANCE , SUCH AS ILLNESS OR OTHERKINDS OF THINGS , WE WOULDN'T EVEN BE HERE TO DAY , W OULD W E ? BECAUSE THEN YOU WOULD HAVE , S TILL, JUST A P URE TIME ISSUE. THIS IS NOT REALLY A PURE TIMING KI ND OF PROBLEM , IS IT?

IT IS. IT BECOMES A PURE TIMING ISSUE, BECAUSE OF THE NATURE OF THIS TYPE OF PROBATION. IT IS NOT SOME THING, AS PROVIDED BY THE TESTIM ONY FROM THE STAT E'S WITNESS, IT IS NOT THE TYPE OF PROBATION WHERE THE PROBATIONER JU MPS IN AND SAYS , HERE I GO. I AM REA DY T O PARTICIPATE. THERE IS AN ADJUSTMENT . THERE IS A PERI OD OF TIME. I DISAGREE WITH THE STATE'S CHARACTERIZATION O F MR . FALTER, THE THERAPIES'S TESTIMONY.HE DID NOT INDICATE THAT IT WAS A HOPELESS CASE. HE SAID THAT THE PROBATIONER , MR. WO ODSON , WAS NOT VIOLATED BECAUSE OF FA ILURE TO APPEAR. IT WASN'T HIS BEHA VIOR. HE WASN'T DISRUPTIVE . HE WAS HAVING, AS IS VERY TYPICAL AND COMMON AND AS IS EXPECTED , A DIFFICULT TIME WITH THIS TYPE OF PROBATION. I, ALSO , DISAGREE THAT THEREIS A DIFFERENCE

NOW WAIT A MIN UTE.IF HE SAID THAT , HE IS THE EXPERIENCED COUNSELOR AND HE KNOWS THAT PEOPLE HAVE , SO WHAT WAS HIS REASON FOR TERMINATING THIS PARTICULAR PERSON, IF HE UNDERSTANDS THAT THERE IS DIFFICULTIES THAT ARE IN THIS TYPE OF SITUATION?

HE WAS VERY CL EAR THAT, ALSO THE FACT THAT M R . WOODSON WAS IN AR REARS FINANCIALLY , WAS A CONTRIBUTOR TO WHY HE VIOLATED HIM, WHY HE TERMINATED HIM, EXCUSE ME , FROM THE G ROUP .

THIS TIME ING THING , REALLY, THAT YOU KEEP ARGUING , REALLY BOTHERS ME , BECAUSE WHAT YOU ARE REALLY SAYING IS THAT A DEFENDANT IS PUT ON THIS SEXUAL OFFENDER PROBATION. HE IS EVALUATED. HE IS TOLD WHAT KIND OF THERAPY HE NEEDS TO HAVE , AND HE SAYS , Y EAH , OKAY , BUT HE GE TS TO CHOOSE WHEN TO START IT ? I MEAN, IF H E DECIDES IDON'T WANT TO START IT TODAY , I WANT TO START IT A YEAR FROM TODAY , THAT WOULD BE O KAY, BECAUSE HE ST ILL HAS TIME LE FT ON HIS PROBATION?

THIS M A Y BE A PROBLEM THAT NEEDS TO BE F I XED , BUT IT IS NOT FOR THE FIFTH TO FIX IT. OUR PO SITION IS THAT E ITHER

IF THE PROBATION OFFICER SAYS THERE IS A PROGRAM THAT STARTS THREE MONTHS FROM NOW THAT YOU CAN GET IN TO, THE K IND OF PROGRAM THAT YOU N EED, THE DEFENDANT SAYS IWANT TO WAIT UNTIL THE PROGRAM THAT STARTS 18 MONTHS FROM NOW , THAT WOULD BE OKAY?

UNDER THE LAW A S IT IS TODAY , UNDER THE LAW AS WE HAVE IT , WITHOUT A DATE CERTAIN FROM THE COURT OR FROM THE LEGISLATURE , YES .

CHIEF JUSTICE: JUSTICE LEWIS . YOUR TIME HAS HE CAN P IRD. THANK YOU VERY MU CH. TO BOTH PARTIES, FOR A HELPFUL ORAL AR GUMENT , AND THE COURT WILL BE IN ITS MORNING RE CESS O F 15