          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-5181
                  _____________________________

ALVARO IGNACIO ABAUNZA,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


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.

                 _____________________________

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


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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