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Harrington v. State

Florida Court of Appeals, Fourth District

February 21, 2018

BRIAN HARRINGTON, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jack Schramm Cox, Judge; L.T. Case No. 1997CF 011373AMB.

          Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.

          FORST, J.

         Appellant Brian Harrington appeals from the trial court's final order revoking probation for his failure to complete a sexual offender treatment program, a condition of his probation. He argues that the trial court's finding of a willful and substantial violation of probation is not supported by competent, substantial evidence. Appellant also argues, and the State agrees, that the trial court failed to hold a required sentencing hearing following the finding of a violation of probation. As discussed below, we affirm the trial court's determination that there was a willful and substantial violation, but reverse and remand for a proper sentencing hearing.

         Background

         Pursuant to a guilty plea to three counts of sexual activity with a child, Appellant was sentenced to prison in 1998 to three concurrent sentences of ten years in prison. After serving eight years of the sentence, he was released and placed on probation. One of the conditions of Appellant's probation was that he complete a sexual offender treatment program.

         In late 2013, the initial sexual offender treatment program to which Appellant was assigned was closed after six years. Appellant was transferred to the Comprehensive Outpatient Recovery, Treatment and Evaluation, Inc. (CORTE) program to attend treatment once a week in a group therapy setting led by Dr. Johnson. At the end of each month that Appellant was enrolled in CORTE, a progress report was prepared and sent to Appellant's probation officer detailing his participation, motivation, attitude, attendance, and any other relevant information. These progress reports allowed for four possible ratings: 1) Excellent, 2) Satisfactory, 3) Marginal or Borderline, and 4) Poor or Unacceptable.

         The stated purpose of the group therapy was to create a safe environment in which the participants could share experiences, discuss and prevent triggers, and talk about what was happening in their lives. An expert in sexual offender treatment, testifying as a defense witness, described this group therapy as an "ebb and flow" process, stating patients would have good and bad days and that what was most crucial for success was to get them to "engage" and "buy in" to the program.

         Appellant's initial reluctance to fully participate at group therapy sessions in CORTE earned him "marginal" or "poor" ratings in attitude and motivation during his first three months in this program; however, he subsequently was deemed to have improved his behavior and he received higher, "satisfactory" ratings. Dr. Johnson acknowledged in her testimony that group therapy patients normally experience a difficult initial adjustment period, requiring time to become comfortable and non-hostile and to trust the therapy and therapist.

         By his sixth month in CORTE, Appellant was receiving "satisfactory" appraisals in all respects, which he successfully maintained for six consecutive months, and Dr. Johnson's reports suggest Appellant's successful participation in therapy during that timeframe, with improved behavior and apparent "buy in" to the therapeutic program. The reports further noted that Appellant was "increasingly receptive" to group therapy, contributing in "increasingly productive" ways, and was "meaningfully engaged." These contemporaneous comments and ratings notwithstanding, Dr. Johnson testified that there was hesitation in giving Appellant these ratings and that "he was superficially engaged since his enrollment" in CORTE, had a negative attitude during meetings, was both challenging and resistant, and had failed to actively participate on numerous occasions. Dr. Johnson was also critical of Appellant's failure to disclose a relationship he was engaged in with another group member.

         During Appellant's final six weeks in CORTE, his participation and attitude toward treatment and the group regressed, and he reverted to behavior similar to when he began the CORTE program. Dr. Johnson and Appellant's expert witnesses provided testimony linking this regression to a situation involving the death of Appellant's father and what the defense experts perceived as Dr. Johnson's mishandling of the situation. Dr. Johnson conceded that this situation was a "clinically significant event" for Appellant.

         Appellant was ultimately discharged from the CORTE group. Dr. Johnson did not refer him to another group or offer additional counselling to him. Dr. Johnson's discharge summary stated Appellant was terminated from the program for two principal reasons: willful ...


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