          Supreme Court of Florida
                                      ____________

                                   No. SC14-2485
                                   ____________

                              WARREN STAPLES,
                                 Petitioner,

                                          vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                  [October 6, 2016]

QUINCE, J.

      Warren Staples seeks review of the decision of the Fifth District Court of

Appeal in Staples v. State, 161 So. 3d 561 (Fla. 5th DCA 2014), on the ground that

it expressly and directly conflicts with decisions of the First, Second, and Fourth

District Courts of Appeal in Bennett v. State, 684 So. 2d 242 (Fla. 2d DCA 1996),

Bell v. State, 643 So. 2d 674 (Fla. 1st DCA 1994), and Diaz v. State, 629 So. 2d

261 (Fla. 4th DCA 1993), on a question of law. We have jurisdiction. See art. V,

§ 3(b)(3), Fla. Const. For the reasons that follow, we approve the Fifth District’s

holding in the instant case and disapprove the conflict cases to the extent that they

are inconsistent with our decision.
                                      FACTS

      On August 28, 2012, Petitioner Warren Staples pleaded guilty to one count

of traveling to meet a minor under section 847.0135(4)(b), Florida Statutes (2011).1

Petitioner was adjudicated guilty and, as part of a stipulated downward departure

sentence, was sentenced to six days time served and five years of sex offender

probation. Condition 17 of Petitioner’s sex offender probation required Petitioner

to actively participate in and successfully complete a sex offender treatment

program. See § 948.30(1)(c), Fla. Stat. (2011). Neither “active participation” nor

“successful completion” is defined by statute. See §§ 948.30(1)(c), 948.001, Fla.

Stat. (“Definitions”).

      From November 2012 to March 2013, Petitioner attended a sex offender

treatment program with ITM Group. However, on March 22, 2013, Petitioner was

discharged from the program for refusing to admit to any sexual misconduct

necessitating treatment.2 As a result of being terminated, Petitioner was charged

with violating Condition 17 of his probation. Staples, 161 So. 3d at 562-63.

Petitioner was not alleged to have violated his probation on any other grounds.



      1. Petitioner was also charged with solicitation of a minor via computer, §
847.0135(3)(b), Fla. Stat. (2011), and attempted lewd or lascivious battery, §§
800.04(4)(a), 777.04. However, the State entered a nolle prosequi on those counts.

       2. Admitting fault or some form of deviant sexual misconduct is a required
part of ITM Group’s sex offender treatment program.


                                        -2-
      At the violation of probation hearing, Petitioner’s therapist, Jack Stultz,

testified that Petitioner was first admitted into the program on a trial basis to

determine his amenability for treatment. This trial period typically lasts for two

months but was extended in Petitioner’s case to give him an opportunity to admit

responsibility for any deviant or inappropriate behaviors to be addressed as part of

the program.3 Dr. Stultz also testified that Petitioner actively participated in the

program and had not missed any sessions since January, when Petitioner was

transferred to Dr. Stultz’s sessions.4 Petitioner’s probation officer testified that

Petitioner was substantially in compliance with the other conditions of his

probation and that he was found to be in violation solely because of his continued

denial of any deviant conduct.

      Petitioner testified that he entered his guilty plea because he felt it was in his

best interest. Both the transcript and judgment form from Petitioner’s original plea

hearing indicate that Petitioner pleaded guilty. The judgment form included

options for pleading “Guilty-Best interest” and nolo contendere, but neither option



      3. Dr. Stultz opined that a client is not amenable to treatment if that client is
not willing to admit that he or she has a problem.
       4. Petitioner began treatment with another therapist in the ITM Group, but
was transferred to Dr. Stultz after a change in employment required that he attend
night sessions instead. Petitioner provided the only testimony about his attendance
while being treated by the first therapist in November and December and stated
that he could not remember having any absences.


                                          -3-
was selected. Upon entry of his guilty plea, Petitioner was not required to admit in

court that he had actually committed the charged offense, nor was he advised prior

to the entry of his plea that the ITM Group treatment program would require him to

admit some sexually deviant behavior. Staples, 161 So. 3d at 562. Before his

admittance into the treatment program, Petitioner’s probation officer instructed

Petitioner on the conditions of his probation, including Condition 17. However,

those conditions did not expressly include the requirement that Petitioner admit

any wrongdoing, nor did the probation officer disclose this program requirement

until later on during Petitioner’s treatment. Nonetheless, Petitioner and his

probation officer both acknowledged that before his discharge, Petitioner was

made aware that continuing to deny sexual misconduct could result in his

termination from the program, thereby violating his probation. Petitioner testified

that he was willing to finish the program, despite its financial strain on him.

Neither Petitioner nor his probation officer investigated or discussed alternative

programs Petitioner could attend that would not require an admission of guilt or

wrongdoing.5




       5. Notably, this record does not demonstrate that any such programs exist.
Dr. Stultz only testified that he knew other programs existed but did not know what
their requirements were. Petitioner testified that no one indicated to him whether
other programs not including the admission requirement existed.


                                         -4-
      At the conclusion of the testimony, the trial court initially struggled to

reconcile Petitioner’s lack of notice of the admission requirement with the

probation condition that Petitioner successfully complete the sex offender

treatment program.6 However, upon being presented with case law—specifically,

Mills v. State, 840 So. 2d 464 (Fla. 4th DCA 2003)—the trial court found that even

if Petitioner did not have notice that he would be required to admit guilt as a

condition of his probation, Petitioner’s best recourse upon discovering the

requirement was to move to set aside his plea on that basis. Thus, the court

revoked Petitioner’s probation, finding that the State presented sufficient evidence

of a violation.

      The Fifth District affirmed the revocation:

      On appeal, Staples argues that his dismissal from the sex offender
      treatment program based on his repeated refusal to admit to engaging
      in deviant sexual behavior cannot constitute a willful and substantial
      violation of probation where he was never advised, prior to the entry
      of his plea, that his admission to such behavior would be required.
      Although Staples may not have been aware of this requirement at the
      time of the entry of his plea, the record reflects that he was made
      aware of the necessity to acknowledge his offending behavior months
      before he was dismissed from the program. Upon learning of the full

       6. The trial judge’s first impression was that the probation order “leaves out
any requirement for admitting. And although [Petitioner’s probation officer] and
ITM might have said he has to admit[,] I can’t violate somebody for orders created
by probation or by counseling services. I can only violate for orders created by, in
this case, Judge Polodna and this Court.” He also stated, “Probation doesn’t have
the authority to create conditions of probation. I can’t violate him for a condition
of probation that probation tells the defendant he has to do.”


                                         -5-
      consequences of his plea, Staples’ remedy was to either file a written
      motion to withdraw his plea, or a motion to vacate his judgment and
      sentence pursuant to Florida Rule of Criminal Procedure 3.850.
      Because Staples did neither, we conclude that the trial court could
      properly revoke his probation.

Staples, 161 So. 3d at 562 (footnotes omitted). The district court found that given

the treatment program’s requirement that an offender admit sexual misconduct in

order to complete the program, it was Petitioner’s “decision to refuse to take the

steps necessary to complete the treatment program” and accepting Petitioner’s

argument “would, in essence, excuse [Petitioner] from performance of a

legislatively mandated probation condition.” Id. at 563. Petitioner appeals this

decision on the basis of conflict jurisdiction.

                                     ANALYSIS

      Petitioner argues that the trial court abused its discretion when it found that

Petitioner willfully and substantially violated his probation by refusing to admit to

some type of deviant behavior to be addressed by the sex offender treatment

program. Whether a violation of probation is willful and substantial and has been

demonstrated by the greater weight of the evidence is a question of fact for the trial

court. State v. Carter, 835 So. 2d 259, 262 (Fla. 2002). The decision to revoke

probation based on a willful and substantial violation is reviewed for an abuse of

discretion. Id. However, where the issue presented is a question of law, the

standard of review is de novo. Adams v. State, 979 So. 2d 921, 925 (Fla. 2008);


                                          -6-
Lawson v. State, 969 So. 2d 222, 229 (Fla. 2007). While we will need to

determine whether the trial court abused its discretion, the conflict issue here

presents the legal question of whether a refusal to admit sexual misconduct can

constitute a violation of probation. As such, this initial question of law is reviewed

de novo.

                               I. The Conflict Issue

      The trial court and the Fifth District in the instant case found the refusal to

admit wrongdoing to be a violation of the probation condition requiring successful

completion of a sex offender treatment program because such refusal results in the

offender’s discharge from the program he was required to successfully complete.

See Mills, 840 So. 2d at 467 (“Mills did not express any interest in successfully

completing a [sex] offender program in which he would have to admit his guilt.

Successful completion of the program, however, was dependent on such an

acknowledgment. Therefore, the court did not abuse its discretion in finding a

violation.”); Arias v. State, 751 So. 2d 184, 186 (Fla. 3d DCA 2000) (finding that

probationer’s refusal to accept full responsibility for his criminal conduct

“obviously precludes his successful completion of this program”); Archer v. State,

604 So. 2d 561, 563 (Fla. 1st DCA 1992) (“Archer adamantly maintained at the

hearing that he had no sexual problem and expressed no willingness to . . . comply

with the condition of probation.”). Courts following this approach have found the


                                         -7-
refusal to admit wrongdoing a willful and substantial violation because upon

becoming aware of the admission requirement, the offender should have made a

motion to withdraw the plea or vacate the judgment. Staples, 161 So. 3d at 562;

Mills, 840 So. 2d at 466-67; Archer, 604 So. 2d at 563. Having done neither, the

offender can have his or her probation revoked by the trial court, regardless of

whether the offender was made aware of the requirement prior to the entry of the

plea. Staples, 161 So. 3d at 562; Mills, 840 So. 2d at 466-67; Archer, 604 So. 2d at

563.

       On the other hand, the conflict cases consider the program requirement of

admitting wrongdoing to be a new, additional condition of probation, not imposed

by the trial court. Bennett, 684 So. 2d at 243 (recognizing that probation condition

required probationer to “enter into and successfully complete” a sex offender

treatment program, but finding that “no condition of probation was imposed that

required him to admit to a counselor the sexual acts charged”); Bell, 643 So. 2d at

675 (“The probation order did not require that [probationer] admit to the

underlying charges.”); Diaz, 629 So. 2d at 262 (“No specific condition of probation

was imposed requiring [probationer] to admit to a counselor the specific acts

charged.”). Accordingly, those courts find that the refusal to admit is not a willful

and substantial violation because (1) a trial court cannot revoke probation for

violation of a condition that was imposed by someone other than the trial judge,


                                         -8-
i.e., a probation officer or therapist;7 and (2) the probationer had no notice prior to

the entry of the plea that he or she would be required to admit sexual misconduct.

Bennett, 684 So. 2d at 243; Bell, 643 So. 2d at 675; Diaz, 629 So. 2d at 262.8 This

second rationale appears to be based on the idea that “a defendant could not



      7. See Kiess v. State, 642 So. 2d 1141, 1142 (Fla. 4th DCA 1994)
(“Violation of a condition which is imposed by a probation officer, rather than an
express condition of the trial court, cannot serve as a basis for revocation of
probation.”).
       8. Respondent argues that these cases are distinguishable in several ways.
First, he asserts that they are distinguishable because they each require the
probationer to accept responsibility for or admit to the crime charged; whereas in
this case, Petitioner was required only to admit wrongdoing or deviant sexual
behavior in general. However, it is not clear from the record in this case whether
Petitioner was required to admit guilt or simply acknowledge deviant behavior.
Further, if this factor distinguishes the conflict cases, it also distinguishes the very
case upon which Respondent himself relies because the offender in Mills was also
required to “take responsibility for his offending behaviors” and “admit his guilt.”
Mills, 840 So. 2d at 466; see also Arias, 751 So. 2d at 186-87.
       Respondent also argues that the cases are distinguishable because they
involve probationers who were not on sex offender probation but instead received,
as special conditions of their probation, conditions with language similar to the
successful completion condition of sex offender probation. However, Respondent
does not explain why such fact precludes the reasoning from being applied
similarly to other types of probation cases. See Adams, 979 So. 2d at 926-27
(applying principle from drug offender probation case to sex offender probation
case).
       Lastly, Respondent argues that Bell and Diaz are distinguishable because the
conditions in both cases required something less than “completion” of treatment.
Bell, 643 So. 2d at 674 (requiring that offender “submit to” counseling); Diaz, 629
So. 2d at 261 (requiring offender to “receive” treatment or counseling). However,
in neither case was that fact relevant to the way the district court decided the
willful and substantial violation issue. As such, the conflict cases cited by
Petitioner are not distinguishable on the bases offered by Respondent.


                                          -9-
willfully violate a condition of probation without being on adequate notice of the

conduct that is prohibited.” Lawson, 969 So. 2d at 230.

      We reject the rule from Bennett, Bell, and Diaz that requiring an offender to

admit sexual misconduct is an impermissible third-party condition that cannot

serve as the basis of a revocation. Instead, we recognize the admission

requirement not as a probation condition on its own but as an internal, program-

specific requirement that may or may not cause an offender to violate the

“successful completion” condition of sex offender probation.

      We also reject the rule from Bennett and Diaz that where a probationer is not

told prior to the entry of a plea that an admission of wrongdoing is required, the

probationer does not have sufficient notice of the admission requirement for the

probationer’s refusal to admit sexual misconduct to be a willful violation. Sex

offender treatment programs will always have program-specific requirements not

embodied by the generic language of the probation condition requiring “successful

completion” of the program. Bennett and Diaz rob the trial court of its discretion

to make fact-specific determinations as to whether a probationer had notice of

those program-specific requirements. Without discretion, courts would have to

specifically delineate, in each probation order, the program to which an offender is

being sent and that program’s internal requirements—an approach we have

implicitly rejected. Lawson, 969 So. 2d at 235 (holding that “[p]robation orders


                                        - 10 -
need not include every possible restriction so long as a reasonable person is put on

notice of what conduct will subject him or her to revocation” and that “[a]lthough

the conditions should be clearly set out and must mean what they say, every detail

need not be spelled out and the language should be interpreted in its common,

ordinary usage”). Thus, we disapprove Bennett, Bell, and Diaz.

                                    II. This Case

      This Court reviews the trial court’s revocation of probation for an abuse of

discretion and must affirm the revocation unless “the trial court acted in an

arbitrary, fanciful or unreasonable manner.” Carter, 835 So. 2d at 262. Here, the

trial court found that even if Petitioner did not have notice that he would be

required to admit guilt as a condition of his probation, under Mills, Petitioner’s

best recourse upon discovering the requirement was to move to set aside his plea

on that basis. Thus, the trial court found that the State presented sufficient

evidence that Petitioner willfully and substantially violated his probation. The

Fifth District affirmed, also finding that Petitioner’s proper remedy was to file a

motion to withdraw his plea or vacate his judgment and sentence. Staples, 161 So.

3d at 562. Both courts are correct that Petitioner could have moved to set aside his

plea or vacate his judgment and sentence.

      As to whether the violation was substantial, Dr. Stultz testified that a client

would not be amenable to treatment in the ITM program if that client were not


                                        - 11 -
willing to admit that he or she has a problem. Arias, 751 So. 2d at 186 (finding

that probationer’s refusal to accept full responsibility for his criminal conduct

“obviously precludes his successful completion of this program”). Therefore,

Petitioner’s refusal to admit the need for help completely foreclosed his ability to

successfully complete ITM’s sex offender treatment program. Further, this Court

has previously found a violation of sex offender probation to be substantial based

on the importance of treatment to the sex offender and society. Adams, 979 So. 2d

at 928 (“[S]ex offender probation and the treatment programs are essential not only

to [the offender’s] well-being and rehabilitation, but also to the protection of

society and any potential future victims.”).

      Regarding willfulness, a probationer cannot willfully violate a condition of

probation unless that probationer has adequate notice of what conduct is

prohibited. Lawson, 969 So. 2d at 230. Here, Dr. Stultz testified that ITM

extended Petitioner’s trial period by about three months in order to give Petitioner

an opportunity to identify any deviant or inappropriate behaviors that needed to be

addressed as part of the program. Petitioner rejected this opportunity. More

importantly, Petitioner was made aware, before being discharged, that continuing

to deny sexual misconduct could result in his termination from the program and

thereby violate his probation. Yet Petitioner did not file the appropriate motion

with the trial court to avoid the violation. The trial court did not abuse its


                                         - 12 -
discretion in revoking Petitioner’s probation for his willful and substantial

violation of probation. Accordingly, we approve the Fifth District’s holding in the

instant case.

                                  CONCLUSION

      We disapprove Bennett, Bell, and Diaz to the extent that they are

inconsistent with our decision. We approve the Fifth District’s decision in Staples

v. State, 161 So. 3d 561 (Fla. 5th DCA 2014), affirming the trial court’s revocation

of Petitioner’s probation.

      It is so ordered.

LEWIS, CANADY, and POLSTON, JJ., concur.
PARIENTE, J., dissents with an opinion, in which LABARGA, C.J., and PERRY,
J., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

PARIENTE, J., dissenting.

      In this case the defendant entered a best interest plea so that he was not

required to admit the crime to which he pled guilty—traveling to meet a minor.

More importantly, he was not required to admit—and did not actually admit in

court—that he engaged in sexually deviant behavior. While I agree that the

defendant need not be put on notice of every program-specific requirement of

probation, I disagree with the majority’s attempt to characterize the substantial

requirement, that is admitting to sexually deviant behavior, as merely “an internal,

                                        - 13 -
program-specific requirement” of probation. Majority op. at 10. Without notice of

this substantial probation requirement to admit to sexually deviant behavior he did

not admit to in court, the defendant could not have willfully and substantially

violated his probation by later failing to admit to such behavior in a sex offender

probation treatment program, and his probation should not have been revoked on

that basis. See State v. Meeks, 789 So. 2d 982, 987 (Fla. 2001) (A violation of

probation “must always be willful and substantial to produce a revocation.”)

(emphasis omitted).

      Additionally, I dissent because I disagree with the majority’s conclusion that

the defendant’s proper remedy to avoid violating his probation when the State

failed to convey this substantial probation requirement was moving to withdraw his

plea. Majority op. at 11. In this case where the defendant lacked notice of the

probation requirement in the first place, that remedy would have improperly

shifted the burden of proof in a violation of probation proceeding from the State to

the defendant. Accordingly, I dissent.

      Sex offender probation under section 948.30(1)(c), Florida Statutes (2011),

requires “[a]ctive participation and successful completion of” a sex offender

treatment program. However, as the majority acknowledges, the statute does not

further define the “successful completion” requirement as mandating that the

defendant admit sexual misconduct. Majority op. at 2.


                                         - 14 -
      We explained in Lawson v. State that an essential part of due process in the

revocation of probation is that “the probation order must [] adequately place the

probationer on notice of conduct that is both required and prohibited during the

probationary period.” 969 So. 2d 222, 230 (Fla. 2007). As the majority points out,

in Lawson we recognized that due process considerations do not require that the

probation order “include every possible restriction so long as a reasonable person

is put on notice of what conduct will subject him or her to revocation.” Majority

op. at 11 (quoting Lawson, 969 So. 2d at 235) (emphasis added).

      I have no quarrel with the majority’s rejection of a bright-line rule that a trial

court must advise a defendant of every program specific requirement that will

subject him or her to revocation. Id. at 10. I disagree, however, that the

requirement that one admit to engaging in sexually deviant behavior when one was

not required to admit such behavior in court can be characterized as an “internal,

program specific requirement,” not warranting notice prior to the entry of the plea.

Id.

      The issue we considered in Lawson was whether the State was required to

put the defendant on notice of the number of attempts the defendant would have to

successfully complete a drug treatment program, which is precisely the type of

program specific requirement that does not need to be specified when imposing the

condition of probation. 969 So. 2d at 228. Certainly in the present case, it is


                                        - 15 -
reasonable to conclude that the probationer was on notice that to successfully

complete his probation, he would have to actually attend the sex offender treatment

program.

       In stark contrast to the issue in Lawson, it is not a reasonable construction of

the probation condition at issue here that the probationer was on notice that

“successfully completing” the treatment program would also require admitting to

sexual misconduct—something the probationer was “not required to admit” in

court. See majority op. at 4. Thus, under this Court’s precedent in Lawson, due

process considerations do not allow the revocation of Staples’s probation for

noncompliance of a critical, yet unspecified, aspect of a probation condition that

Staples—or any reasonable person—did not have notice of and would not have

been expected to know could “subject him or her to revocation.” 969 So. 2d at

235.

       In short, if the condition of probation required the defendant to admit that he

engaged in sexually deviant behavior, then that requirement should have been

communicated to him before the time of the plea. This communication is even

more critical when considering that in this case, although the defendant pled guilty,

he asserted that it was a best interest plea, and he “was not required to admit in

court that he had actually committed the charged offense.” Majority op. at 4.

                   Withdrawal of Plea is an Improper Remedy


                                         - 16 -
      I also disagree with the majority’s conclusion that the defendant’s proper

remedy in this case for avoiding a violation of his probation “was to file a motion

to withdraw his plea or vacate his judgement and sentence.” Majority op. at 11

(citing Staples v. State, 161 So. 3d 561, 562 (Fla. 5th DCA 2014)). It defies logic

to require a defendant to withdraw his plea to avoid violating a probation condition

that was never communicated to him when that remedy is, as the Fifth District

explained, typically available for a defendant who does “not understand the

consequences of his plea.” Staples, 161 So. 3d at 564; see also Mills v. State, 840

So. 2d 464, 466 (Fla. 4th DCA 2003); Archer v. State, 604 So. 2d 561, 563 (Fla.

1st DCA 1992). A defendant cannot plausibly lack an understanding of the

consequences of his plea when those consequences were never communicated to

him so that he could form such an understanding in the first place.

      Further, such a remedy inverts the burden of proof in a violation of

probation proceeding, where the State must prove, by a preponderance of the

evidence, that the defendant willfully and substantially violated a condition of

probation. See Meeks, 789 So. 2d at 987; see also Walker v. State, 966 So. 2d

1004, 1006 (Fla. 5th DCA 2007) (“To establish a violation of probation, the State

must prove, by a preponderance of the evidence, that a probationer willfully

violated a substantial condition of probation.”). By requiring the defendant to

move to withdraw his best interest plea to avoid violating his probation, and then


                                        - 17 -
prove the necessary requirements to meet the withdrawal standard, the trial court

shifted the burden to the defendant to prove that he did not willfully and

substantially violate a substantial requirement of probation, even when the State

failed to put the defendant on notice of the substantial probation requirement. See

Sheppard v. State, 17 So. 3d 275, 283 (Fla. 2009) (noting that defendant bears the

burden of proving a manifest injustice in a motion to withdraw a plea after

sentencing).

      Under the specific facts of this case, I would conclude that the defendant’s

failure to admit that he engaged in sexually deviant behavior did not constitute a

willful and substantial violation of probation because he did not have notice before

he entered his plea that “successful completion” of a sex offender treatment

program would require admitting to sexual misconduct. If the requirement of

admitting that he engaged in sexually deviant behavior was a prerequisite of

“successful completion” of a “sex offender treatment program,” then that condition

should have been communicated to the defendant before he entered his plea.

Accordingly, I would approve the conflict decisions in Bennett v. State, 684 So. 2d

242 (Fla. 2d DCA 1996), Bell v. State, 643 So. 2d 674 (Fla. 1st DCA 1994), and

Diaz v. State, 629 So. 2d 261 (Fla. 4th DCA 1993), and quash the Fifth District’s

decision in Staples v. State, 161 So. 3d 561 (Fla. 5th DCA 2014).

LABARGA, C.J., and PERRY, J., concur.


                                        - 18 -
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions

      Fifth District - Case No. 5D13-3573

      (Osceola County)

James S. Purdy, Public Defender, and Christopher Sinclair Quarles, Assistant
Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Wesley Harold Heidt,
Bureau Chief, and Marjorie J. Vincent-Tripp, Assistant Attorney General, Daytona
Beach, Florida,

      for Respondent




                                      - 19 -
