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Abaunza v. State

Florida Court of Appeals, First District

July 29, 2019

Alvaro Ignacio Abaunza, Appellant,
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Okaloosa County. Terrance R. Ketchel, Judge.

          Andy Thomas, Public Defender, and Greg Caracci, Assistant Public Defender, Tallahassee, for Appellant.

          Ashley Moody, Attorney General, Daniel Krumbholz, Assistant Attorney General, and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Appellee.

          KELSEY, J.

         Appellant challenges a November 2017 order[1] determining that he was not entitled to a full trial on whether he should be discharged from commitment as a sexually-violent predator. Because the trial court's order was supported by competent substantial evidence, we affirm. We reject on the merits and without further comment Appellant's constitutional attack on his commitment, and discuss only the trial court's determination that Appellant had not demonstrated probable cause entitling him to a full trial.

         The Governing Statute.

         Florida's Involuntary Civil Commitment of Sexually Violent Predators Act, formerly called the Jimmy Ryce Act, [2] sets forth a procedural path for determining when those committed for treatment are eligible for release. § 394.918, Fla. Stat. They receive an examination of their mental condition at least once a year; and they may retain, or receive at public expense, a qualified professional to perform an examination. § 394.918(1). Examination results are furnished to the trial court that committed the individual, and the court "shall conduct a review of the person's status." Id. The individual may petition for release over the objection of the facility's director. § 394.918(2). As amended in 2014, the statute gives the individual the right to have counsel and to be present at the probable-cause hearing, which is a bilateral evidentiary hearing at which the trial court is expressly authorized to "weigh and consider" competing evidence:

The court shall hold a limited hearing to determine whether there is probable cause to believe that the person's condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged. The person has the right to be represented by counsel at the probable cause hearing and the right to be present. Both the petitioner and the respondent may present evidence that the court may weigh and consider. If the court determines that there is probable cause to believe it is safe to release the person, the court shall set a trial before the court on the issue.

§ 394.918(3). If the court finds probable cause on the safety and re-offending issues, the court conducts a bench trial to determine the individual's entitlement to release. § 394.918(3), (4).


         Appellant attended the probable-cause hearing, and was represented by appointed counsel. As permitted under the statute, and without objection, both Appellant and the State presented solely documentary evidence at the hearing. The State presented the facility's treatment progress report, and Appellant presented a written professional evaluation report by Dr. Shadle. The trial court reviewed both reports, heard argument of counsel, and ruled that Appellant had failed to demonstrate "probable cause to believe it is safe to release" him. See id. § 394.918(3).

         The facility's report and professional evaluation noted that Appellant was committed with diagnoses of a rape fantasy disorder, a personality disorder with narcissistic and antisocial features, alcohol and cocaine use disorders, and antisocial personality disorder. The facility report noted that behaviors related to these disorders were largely in remission due to Appellant's commitment. After three years of commitment, Appellant was still in the first of four phases of treatment. He failed to progress due to excessive absences, some of his choice and some because he was in secure management, either at his own request or due to disciplinary actions (of which there were six in a six-month period). He had difficulty staying in open population, often making unsubstantiated allegations against other residents and staff, and asserting food poisoning. The facility physician's report concluded that Appellant had not yet addressed relevant treatment issues and therefore that he should continue treatment in the civil commitment center.

         Dr. Shadle's report reached the opposite conclusion, tracking the statutory language that it was safe for Appellant to be at large and he likely would not re-offend. The majority of Dr. Shadle's report was devoted to criticizing the civil commitment center and its programs: the programs were not in line with current psychiatric literature, and were ineffective and unnecessary; and the facility was riddled with internal problems. To the limited extent he addressed Appellant individually, Dr. Shadle noted that Appellant was "a habitual criminal offender from his mid-teens to his early forties with some 45 arrests and nine terms in the DOC." Appellant's records indicate that he committed multiple kidnappings and four violent sexual assaults on young women between 1987 and 2010, in between periods of incarceration on various crimes. Dr. Shadle noted that none of Appellant's disciplinary reports were related to his sexual offenses, and that his previous behavior had not occurred at the commitment center-emphasizing that Appellant did not "currently" present with symptoms of the disorders for which he was committed. Dr. Shadle observed that there is no acceptable treatment for psychopaths, so it did not help to keep Appellant at the facility for that. He reported that Appellant considered confinement at the ...

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