Opinion
Case No. 5D19-534
05-15-2020
Curt Raymond GAITHER, Appellant, v. STATE of Florida, Appellee.
James S. Purdy, Public Defender, and Roman A. Faizorin and Nancy Ryan, Assistant Public Defenders, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
James S. Purdy, Public Defender, and Roman A. Faizorin and Nancy Ryan, Assistant Public Defenders, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
ORFINGER, J. In exchange for his plea to several felonies, Curt Raymond Gaither agreed to successfully complete the Hernando County drug court program. The trial court deferred sentencing and Gaither executed a drug court participation agreement, which included the following condition:
Failure to attend counseling, remain drug and alcohol free, demonstrate progress in treatment, commit a new law violation, or strictly adhere to the rules and regulations of drug court will result in review of my case by the Hernando County drug court judge to determine my continued participation in the drug court program or the imposition of sanctions including incarceration.
Compliance with this condition was a challenge for Gaither, who, shortly thereafter, was arrested and charged with another felony along with other violations. After pleading no contest to the new felony, the State and the trial court again agreed to defer sentencing and allow Gaither to continue in the drug court program with residential treatment.
After successfully completing residential treatment, Gaither was again arrested and charged with resisting an officer without violence. Gaither was issued a notice of non-compliance with the conditions of drug court and came before the drug court judge. Gaither's counsel objected to the hearing procedure, arguing that Gaither was entitled to a hearing at which the State would have to prove a substantial and willful violation of his drug court participation agreement before being terminated from drug court and sentenced to prison. Over that objection, the drug court judge, considering only Gaither's history of non-compliance and the new arrest affidavit, terminated him from the drug court program and sentenced him to 53 months in prison. On appeal, as he did below, Gaither argues that he was denied due process prior to being terminated from the drug court program and sentenced to prison.
We review de novo a claim of deprivation of procedural due process. Jenkins v. M.F., 280 So. 3d 507, 510 (Fla. 5th DCA 2019). Due process is a flexible concept and requires only that the proceedings are essentially fair. Carillon Cmty. Residential v. Seminole Cty., 45 So. 3d 7, 9 (Fla. 5th DCA 2010) (citing Gilbert v. Homar, 520 U.S. 924, 930, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) ). The extent of procedural due process protection varies with the character of the interest and the nature of the proceeding involved. Id. Thus, due process does not lend itself to a single, static test to determine whether its requirements have been met. Id. Instead, courts must consider the individualized facts of each case. Id.
In this case, we must determine whether Gaither was afforded an appropriate level of due process protection at the drug court hearing before he was terminated from the program and sentenced to prison. The parties have not directed us to, and our independent research has not located any Florida case that specifically addresses the due process that defendants participating in a drug court program pursuant to a plea agreement are entitled to prior to termination from drug court. Gaither urges us to adopt the same due process requirements afforded defendants in probation revocation proceedings. A trial court may order a defendant to complete a drug court program as a special condition of ordinary probation, as a condition of drug offender probation under section 948.20, Florida Statutes (2019), or as a part of a treatment-based drug court program under section 397.334, Florida Statutes (2019). See Lawson v. State, 969 So. 2d 222, 231 (Fla. 2007). If an individual is participating in drug court as a condition of probation, he or she is entitled to notice of an alleged violation and a hearing before being terminated. § 397.334(3)(b), Fla. Stat. (2019) (providing that offenders, who are participating in drug court program as condition of probation or community control, are entitled to hearing if substantial violation is alleged); see Hines v. State, 358 So. 2d 183, 185 (Fla. 1978) (explaining that probation revocation procedures must comply with minimal requirements of due process); McCloud v. State, 249 So. 3d 739, 741 (Fla. 1st DCA 2018) (reiterating that as matter of due process, probationers are entitled to notice of which laws probationer is alleged to have violated and opportunity to present defense to them).
Here, Gaither was not on probation, but was participating in the drug court program pursuant to a plea agreement. Generally, the State is required to prove the violation in a plea agreement by a preponderance of the evidence. Neeld v. State, 977 So. 2d 740, 744 (Fla. 2d DCA 2008). We see no reason why a drug court participant in this status should be afforded less due process before termination, than an individual in drug court as a condition of probation. We find support for this conclusion from courts in other states that have considered this question and held that drug court participants are entitled to the same due process protections as probationers, prior to termination. See National Drug Court Institute, The Drug Court Judicial Benchbook § 8:4, at 163–64 (2011).
For instance, in State v. Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011), the Nebraska Supreme Court held that the conditional liberty interest of a drug court participant is analogous to a probationer, and drug court participants must be accorded the same due process protections that are afforded to probationers in termination hearings:
The majority of other courts considering the issue have determined that participants facing termination from post-plea diversion programs, such as the drug court program, are entitled to the same due process protections as persons facing termination of parole or probation. We agree. While restrictions upon the liberty of drug court participants may depend on their individual program plans, participants are not imprisoned, and, like parolees or probationers, they may still do a wide range of things. Participants are generally allowed to live at home and maintain gainful employment. They are allowed to be with family and friends and form the other enduring attachments of normal life, so long as these relationships are not a detriment to their rehabilitation. The termination of the conditional liberty granted drug court participants inflicts a "grievous loss" similar to the loss of parole or probation.
....
Applying these standards, we conclude that Shambley's termination hearing did not comport with the minimal due process to which a drug court participant is entitled. The drug court coordinator's letter and its attachments, considered without establishing foundation or reliability and containing statements made without personal knowledge, were insufficient
to sustain the State's burden of proof.
795 N.W.2d at 894-95 (footnotes omitted); see, e.g., State v. Rogers, 144 Idaho 738, 170 P.3d 881 (2007) (holding drug court termination proceedings required same due process protections provided to probationers); People v. Anderson, 358 Ill.App.3d 1108, 295 Ill.Dec. 557, 833 N.E.2d 390 (2005) (holding due process circumscribes summary dismissal from drug court program); Gosha v. State, 931 N.E.2d 432 (Ind. Ct. App. 2010) (holding participant in drug court program is entitled to due process, including evidentiary hearing, with written notice of claimed violations, disclosure of evidence against participant, opportunity to be heard and to present evidence, and right to confront and cross-examine witnesses before court may terminate from drug court program); State v. Brookman, 460 Md. 291, 190 A.3d 282, 300-01 (2018) (holding that when drug court judge considers terminating participant from drug court program, it must provide certain minimum due process protections, including notice, opportunity to be heard, right to representation by counsel, and must have opportunity to confront and contest adverse evidence and opportunity to have judge consider mitigating factors); State v. Perkins, 378 S.C. 57, 661 S.E.2d 366, 368 (2008) (concluding that drug court participant was entitled to notice and hearing to determine whether he violated conditions of suspended sentence before sentence may be imposed); State v. Cassill-Skilton, 122 Wash.App. 652, 94 P.3d 407 (2004) (holding that before terminating participant from drug court, due process required court to provide notice and hearing where defendant would have opportunity to contest basis of termination and creating record of evidence relied on to terminate participation).
We agree that a defendant participating in drug court pursuant to a plea agreement is entitled to the same due process as a probationer, before being terminated from the drug court program. For these reasons, we reverse Gaither's sentence and remand this matter for a hearing with written notice to Gaither of the alleged violations of his drug offender participation agreement, an opportunity to be heard and to present evidence, and the right to confront and cross-examine witnesses.
We do not suggest that drug court sanctions short of termination require the same level of due process. Due process is a flexible concept, and lesser sanctions do not implicate the same due process concerns.
REVERSED and REMANDED.
EVANDER, C.J., and WALLIS, J., concur.