Alvaro Ignacio Abaunza v. State of Florida

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-5181

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ALVARO IGNACIO ABAUNZA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Okaloosa County.

Terrance R. Ketchel, Judge.

July 29, 2019

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.

1 This appeal has been delayed significantly by the parties’

extensions and supplementation of the record. In the meantime,

Appellant has also appealed the order on the probable cause

hearing following his 2018 annual review, in which the trial court

reached the same conclusion as in the 2017 order: that Appellant

is not yet eligible for release. That case is not yet briefed. See Case

No. 1D19-932.

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

2 The Act was originally named for the 9-year-old victim of a

kidnapping, rape, and murder. For an overview of the Act and its

history, see Morel v. Wilkins, 84 So. 3d 226, 232–33 (Fla. 2012).

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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).

Facts.

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

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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

facility a real deterrent to any future re-offending; Appellant

recognized there was a consequence to his actions. Dr. Shadle

noted that statistically, the odds of post-commitment recidivism in

Appellant’s age class were roughly equal to the odds of the same

crimes’ being committed by individuals in the general public.

The trial court’s oral ruling and subsequent written order

reflected that the court rejected Dr. Shadle’s trivialization of

recidivism rates, finding the likelihood of re-offense unacceptably

high. The court found it important that Dr. Shadle admitted that

psychopaths cannot be treated successfully, an opinion that would

support a likelihood of re-offending. Further, the court noted that

Dr. Shadle’s report expressed surprise that Appellant was not

engaging in improper sexual acts even in commitment, given his

disorders. The court agreed with the facility’s assessment that this

“remission” from sexual acting-out was occurring only because the

commitment circumstances did not lend themselves to new

offenses of that kind. The court noted that Appellant was not even

trying to participate fully in treatments offered at the facility and

had not progressed satisfactorily. The court found probable cause

had not been established.

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Analysis.

The threshold question is our standard of review. Appellant

argues that the standard of review is de novo, citing only cases

arising under the pre-2014 statute. See, e.g., Westerheide v. State,

888 So. 2d 702 706 (Fla. 5th DCA 2004) (holding that under the

previous statute, trial courts were not authorized to weigh

conflicting evidence, but rather were limited to evaluating the

sufficiency of petitioners’ evidence). Before the amendment, the

statute did not allow committed individuals to attend the probable

cause hearing or be represented by counsel, and did not authorize

trial courts to weigh conflicting evidence. That changed with the

2014 amendment, as the Third District explained in Barron v.

State, 217 So. 3d 1088, 1091 (Fla. 3d DCA 2017):

In 2014, the Florida Legislature amended section

394.918(3). See Laws of Florida 2014, chapter 2014–2, § 6.

The amended version provides that the petitioner has the

right to be present at the probable cause hearing, and

further provides that both the petitioner and the State

may present evidence for the court to consider:

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 but the person is not entitled 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.

(Added language underlined; deleted language indicated

by strikethrough.)

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The Barron court thus concluded that under the plain and

ordinary meaning of the statute as amended in 2014, the trial

court was authorized to “weigh and consider” conflicting evidence

in a probable cause hearing under the sexually violent predators

act. The court affirmed the trial court’s assessment and conclusion

that probable cause had not been shown. Id.

Because the statute now in effect (and in effect at the time of

Appellant’s adjudication and commitment as a sexually violent

predator and at his probable cause hearing) gives committed

individuals the right to be present at probable cause hearings,

allows both sides to present evidence, and authorizes trial courts

to weigh and consider that evidence, probable cause hearings are

akin to other non-jury evidentiary hearings at which trial courts

hear and weigh conflicting evidence. In such proceedings, our

standard of review limits us to determining whether the trial

court’s conclusion was supported by competent substantial

evidence. See Teffeteller v. Dugger, 734 So. 2d 1009, 1017 (Fla.

1999) (“The standard of review applicable to a trial court decision

based on a finding of fact is whether the decision is supported by

competent substantial evidence.”) (quoting Philip J. Padovano,

Florida Appellate Practice, § 9.6, at 155 (2d ed. 1997); Clegg v.

Chipola Aviation, Inc., 458 So. 2d 1186, 1187 (Fla. 1st DCA 1984)

(“The resolution of factual conflicts by a trial judge in a nonjury

case will not be set aside on review unless totally unsupported by

competent substantial evidence.”) (quoting Concreform Sys., Inc. v.

R.M. Hicks Constr. Co., 433 So. 2d 50, 50 (Fla. 3d DCA 1983)); see

also Mitchell v. State, 98 So. 3d 694, 696 (Fla. 1st DCA 2012) (“The

trial court’s determination of the weight and credibility of

competing expert opinions in chapter 394 proceedings will not be

overturned unless clearly erroneous.”).

We find that the trial court’s ruling is supported by competent

substantial evidence as set forth above. Even if our review were de

novo, our conclusion would be the same on the evidence presented

here. We view the evidence as did the trial court, as falling short

of establishing probable cause. We find it particularly troubling

that Appellant refuses or fails to participate in available

treatment. We reject Dr. Shadle’s opinion and Appellant’s

argument that Appellant and others similarly situated should be

released into the general population because in their view, the

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entire concept of civil commitment, the treatment offered, and the

facility itself are ineffectual. The Legislature has concluded

otherwise. We will apply the law as written. We note as well that

the trial court subsequently reached the same conclusion about

Appellant in the more recent 2018 annual review and probable

cause hearing, lending weight to the conclusion that as of his 2017

review and hearing, Appellant had not satisfied the statutory

requirements for establishing probable cause.

AFFIRMED.

WOLF and WINOKUR, JJ., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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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.

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