DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2012
WILLIAM OERTEL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D11-221
[February 29, 2012]
POLEN, J.
William Oertel timely appeals the order of the trial court, finding that
h e willfully and substantially violated his probation. We affirm but
remand for entry of a written order of violation of probation.
After a jury trial, Oertel was found guilty of four counts of possession
of child pornography, and sentenced to thirteen months in prison,
followed by eighteen months of sex offender probation.
A special
condition of his probation was that he “complete successfully on the first
try any recommended treatment.” Thereafter, an affidavit of violation of
probation was filed, alleging that Oertel h a d violated this special
condition by being discharged from the CORTE program.1
At the violation of probation hearing, Brooke Bauman, Oertel’s
primary counselor at CORTE, testified that Oertel failed to sufficiently
participate in the program and became “extremely argumentative to the
point where it was starting to interfere with the progress of the other
offenders.” She explained that Oertel “would try to argue the innocence
of other offenders in the program who were admittedly open to discussing
their offenses and expressing their needs for treatment,” and that “he
would try to find justifications as to why they were innocent or why they
shouldn’t be there.” According to Bauman, Oertel “was just overall
disruptive in the program.” She further testified that Oertel tried to
convince her that child pornography was art. Because she did not
CORTE is a private mental health counseling program that contracts with the
Department of Corrections (DOC).
1
believe Oertel was making a genuine effort to complete the program,
Oertel was terminated. Bauman testified that she has treated over 100
patients at CORTE and that Oertel was the third patient she had asked
to leave the program.
The defense called Jack Fleischman, Oertel’s trial attorney, who
testified that CORTE forces people to admit guilt or be terminated, and
that he had other clients with the same problem. Fleischman described
the CORTE program as “a violation waiting to happen.” Dr. Eric Imhof, a
licensed clinical psychologist specializing in the treatment of sex
offenders, testified that Oertel’s lack of participation in CORTE may have
been due to being placed in the wrong program. Oertel testified that he
began to have conflicts with Bauman over his refusal to admit guilt, and
that he explained to Bauman that he had not pled guilty, had gone to
trial and lost, and that his case was pending on appeal. Otherwise, he
testified, he participated in group. He further testified that Bauman took
a very hostile, aggressive approach, but that he continued to attend and
pay for the sessions. Bauman testified that she did not require Oertel to
admit guilt.
Following the hearing, the trial court found Oertel in violation:
All right. This isn’t really even a difficult decision. I’m going
to find that the CORTE treatment program is an appropriate
treatment program for sex offenders, a n y ty p e of sex
offenders, it’s widely accepted in the community. It’s one of
the two programs that are used, to my knowledge, most
often, it’s even specified to be used in most orders. But I am
finding that that’s an appropriate treatment program.
....
If people don’t want to get better or don’t want to change,
and that’s the situation I feel is here, the behavior wants to
continue, that’s a reason why you’d want to get out of a
program that isn’t going to tolerate non-compliance. And
that’s what we have here. We keep focusing on that he goes
to every session. What’s the difference between being absent
and going and doing nothing or going and doing things to
contraindicate or contradict any of the types of treatment
methods that are going on. It’s just not that different.
....
-2-
I don’t believe that personality clash exists with Ms.
Bauman. I think it’s more of a clash with the restrictiveness
of this program and the requirements of the program.
....
So, I’m going to find that h e willfully violated his
probation. I know it’s just proof beyond – the doubt is a lot
less than beyond a reasonable doubt, but I don’t have a
reasonable doubt even. I have no doubt at all as a matter of
fact.
This appeal followed.
Oertel, relying on Slovak v. State, 862 So. 2d 875 (Fla. 2d DCA 2003),
argues that the trial court erred in finding that he willfully and
substantially violated his probation because h e was inappropriately
placed at CORTE, h a d a perfect attendance record, paid for every
session, committed no new substantive offenses and was not alleged to
have violated any other conditions of probation. The State argues that
the trial court properly found a willful and substantial violation because
the evidence established that Oertel refused to participate in therapy.
The State submits that Archer v. State, 604 So. 2d 561 (Fla. 1st DCA
1992), is identical to the case at bar.
“In order to support a revocation of probation, the State has the
burden of proving b y the greater weight of the evidence that the
probationer’s violation was both substantial and willful.” Fulton v. State,
871 So. 2d 1037 (Fla. 4th DCA 2004) (quoting Anderson v. State, 711 So.
2d 106, 108 (Fla. 4th DCA 1998)). However, a finding of a “substantial”
violation must be made after “considering all of the terms of probation
imposed.” Rathburn v. State, 353 So. 2d 902, 903 (Fla. 4th DCA 1977)
(citations omitted). “On appeal, the trial court’s order is reviewed under
an abuse of discretion standard.” Davis v. State, 796 So. 2d 1222, 1225
(Fla. 4th DCA 2001) (citing Matthews v. State, 736 So. 2d 72, 75 (Fla. 4th
DCA 1999)).
In Slovak, Slovak was placed o n three years of probation with a
condition requiring that he “attend sex offender counseling.” Slovak,
862 So. 2d at 876 (emphasis added). An affidavit was filed, alleging that
Slovak violated probation because he was terminated from sex offender
counseling. Id. At the hearing, Slovak testified, and the program
director agreed, that Slovak was placed in a counseling group whose
members had committed more serious offenses that were different from
-3-
Slovak’s offense. Id. Slovak testified that he participated the best he
could but his participation was hampered because he was uncomfortable
with the issues raised by the group. Id. The program director testified
that he terminated Slovak from the program because although Slovak
attended, he did not really participate in the group therapy. Id. On
appeal, the Second District held that the evidence did not show a willful
and substantial violation of the condition that he attend sex offender
counseling. Id. (emphasis in original).
In Archer, a special condition of probation required Archer to undergo
a psychosexual evaluation and successfully complete a n y and all
recommended treatment; no time frame for completion of this condition
was included in the order. Archer, 604 So. 2d at 562 (emphasis added).
Archer began treatment but was terminated for failing to cooperate with
his counselor. Id. He was then referred to a psychologist, who
conducted a psychosexual evaluation; as a result of the evaluation, the
psychologist placed Archer in a treatment program. Id. Essential to the
successful completion of the treatment program was Archer’s
acknowledgment that he had trouble controlling his sexual impulses. Id.
After four weeks of therapy, the psychologist discharged Archer because
he refused to acknowledge that he had a sexual problem; Archer was
subsequently arrested for violation of probation. Id. At the hearing, the
psychologist testified that, in light of Archer’s unwillingness to
acknowledge his problem and his failure in the program, additional
therapy sessions would be useless. Id. The trial court revoked Archer’s
probation. Id. On appeal, the First District affirmed based on the
psychologist’s testimony and because “Archer adamantly maintained at
the hearing that he had no sexual problem and expressed no willingness
to participate in a treatment program or otherwise comply with the
condition of probation.” Id. at 563.
In Bell v. State, 643 So. 2d 674 (Fla. 1st DCA 1994), Bell was
sentenced to probation, with the condition that h e “submit to
Psychosexual counseling as directed by [his] Probation Officer.” Id. at
674. Bell was evaluated a n d recommended to a sexual offender
treatment program; however, he was terminated from the program by his
counselor for refusing to admit to the charges against him, which was a
requirement for continuation in the program. Id. at 674-75. An affidavit
of violation of probation was filed for failing to complete psychosexual
counseling per his instructions and for being terminated from counseling
for refusing to admit his involvement in the offense committed. Id. at
675. His probation was revoked. Id.
-4-
On appeal, the First District reversed:
Bell’s probation order merely required that he “submit to”
psychosexual counseling – a requirement which he satisfied
by attending eight weekly counseling sessions before being
terminated therefrom by his counselor for refusing to admit
to the underlying charges. The probation order did not
require that he admit to the underlying charges or that he
complete the counseling at issue. These additional
requirements imposed respectively by Bell’s counselor and
probation officer amounted to a n unauthorized and
impermissible upward modification of Bell’s probation
conditions, and Bell cannot now be penalized for failing to
abide b y them. A s such, we reverse Bell’s probation
revocation and remand to the trial court with directions that
Bell’s probation be reinstated.
Id. at 675 (citation omitted). The court added:
We emphasize that this holding does not conflict with our
recent decision in Archer, in which we affirmed a probation
revocation order u n d e r analogous, b u t by no means
identical, circumstances. Significantly, the Archer decision
involves at least three important factual distinctions. First,
the probation condition at issue in Archer required that the
appellant successfully complete (as opposed to “submit to”)
psychological treatment. Id. at 562. Second, the Archer
appellant’s lack of desire to complete counseling was
relevant to the specificity of his probation condition requiring
him to complete counseling. Id. at 563. Again, because the
probation conditions at issue here do not require Bell to
complete counseling, his lack of desire to do so is irrelevant.
Third, the appellant in Archer was discharged from
counseling because he refused to acknowledge that he had a
sexual problem. Id. at 562. In contrast, Bell was discharged
from counseling for failing to admit his guilt in the
underlying crimes.
Id. at n.1 (citation omitted).
Here, the special condition to Oertel’s probation states:
Additional instructions ordered: Within 30 days. Defendant
must complete successfully o n th e first try any
-5-
recommended treatment and treatment must be completed
at least 90 days before the end of probation.
We conclude that Slovak is distinguishable because in that case the
condition of probation was that Slovak attend counseling, which he did;
here, Oertel’s condition is to complete counseling, which he did not. We
also find Archer to b e distinguishable because in that case the
probationer “adamantly maintained at the hearing that he had no sexual
problem and expressed n o willingness to participate in a treatment
program or otherwise comply with the condition of probation.” Here,
Oertel testified that he was open to treatment and willing to continue
treatment with another provider. Moreover, in Archer, the psychologist
testified that she did not believe there was any therapy that would be
beneficial. Here, Dr. Imhof testified that other more holistic treatment
approaches would be better suited for Oertel. However, like Archer and
unlike Bell, Bauman testified that she did not require Oertel to admit his
guilt.
“When a decision in a non-jury trial is based on findings of fact from
disputed evidence, it is reviewed on appeal for competent, substantial
evidence” because “the trial judge is in the best position to evaluate and
weigh the testimony and evidence based upon its observation of the
bearing, demeanor and credibility of the witnesses.” Acoustic Innovations,
Inc. v. Schafer, 976 So. 2d 1139, 1143 (Fla. 4th DCA 2008) (citations and
quotations omitted). Based on the testimony adduced at the hearing in
this case, we must affirm the trial court’s finding that Oertel willfully and
substantially violated his probation. However, although the trial court
orally pronounced the violation of probation, it did not enter a written
order. Consequently, we remand for entry of a written order. See King v.
State, 46 So. 3d 1171, 1172 (Fla. 4th DCA 2010) (“If a trial court revokes
a defendant’s probation, the court is required to render a written order
noting the specific conditions of probation that were violated.”); Robinson
v. State, 74 So. 3d 570, 572 (Fla. 4th DCA 2011) (“Even though the
record is clear, a formal, written order specifying each condition of
probation violated must be entered in this case. Therefore, we remand
for entry of an order in conformity with this opinion.”).
Affirmed.
TAYLOR and HAZOURI, JJ., concur.
*
*
-6-
*
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Amy L. Smith, Judge; L.T. Case No. 2008CF001639AMB.
Carey Haughwout, Public Defender, and Richard B. Greene, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela J o Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
-7-
