final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Jack Schramm Cox, Judge; L.T. Case No.
P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant
Regional Counsel, Office of Criminal Conflict and Civil
Regional Counsel, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Joseph D.
Coronato, Jr., Assistant Attorney General, West Palm Beach,
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
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.
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.
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.
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.
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.
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.
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 ...