STATE OF FLORIDA v. CHRISTOPHER WALK

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
CHRISTOPHER WALK,
Appellee.
No. 4D18-921
[March 20, 2019]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Barry M. Cohen, Judge; L.T. Case No. 502015CF009085A.
Ashley B. Moody, Attorney General, Tallahassee, and Marc B.
Hernandez, Assistant Attorney General, West Palm Beach, for appellant.
Joshua LeRoy of LeRoy Law, P.A., West Palm Beach, for appellee.
ON MOTION FOR CLARIFICATION
DAMOORGIAN, J.
We grant the motion for clarification, withdraw our previous opinion,
and substitute the following.
The State appeals the trial court’s order removing the mandatory
probation condition preventing Christopher Walk from having
unsupervised contact with a child under the age of eighteen more than
sixty days after the sentence was imposed. Because the trial court failed
to comply with section 948.30(e), Florida Statutes, it lacked the authority
to remove the mandatory condition. We therefore quash the order
modifying Walk’s probationary sentence and remand the case.
The State charged Walk with thirty-four counts of possessing,
controlling, or intentionally viewing a photograph showing sexual conduct
by a child. Walk pled guilty to three of the counts and the State agreed to
nolle prosse the remaining counts. In January 2017, Walk was sentenced
to eighteen months in prison followed by ten years of supervised sex
offender probation. As a mandatory condition of probation, Walk was
prohibited from having unsupervised contact with a child under the age of
eighteen. See § 948.30(1)(e), Fla. Stat. (2015) (for probationers who are
placed under supervision for violation of section 827.071, one of the
conditions that the court must impose is “a prohibition on contact with a
child under the age of [eighteen]” if the victim was under the age of
eighteen).
In February 2018, more than one year after the imposition of the
original sentence and before the start of the probationary portion of the
sentence, Walk moved for clarification of the probation condition regarding
no unsupervised contact with a child under the age of eighteen. Although
titled a motion to “clarify,” Walk was essentially asking the court to modify
the probationary portion of his sentence by removing that condition so that
he could live in the same house as his wife and two minor children after
his release from prison. Following a brief hearing on Walk’s motion, which
the court treated as a motion to modify probation, the court granted the
motion over the State’s objection and removed that condition of probation.
Section 948.03(2), Florida Statutes, generally allows a trial court to
rescind or modify the terms and conditions of probation at any time. But,
the trial court was not authorized to remove a mandatory condition of
probation. See State v. Springer, 965 So. 2d 270, 272–73 (Fla. 5th DCA
2007).
Section 948.30(1)(e) provides:
(e) If the victim was under the age of 18, a prohibition on
contact with a child under the age of 18 except as provided in
this paragraph. The court may approve supervised contact
with a child under the age of 18 if the approval is based upon
a recommendation for contact issued by a qualified
practitioner who is basing the recommendation on a risk
assessment. Further, the sex offender must be currently
enrolled in or have successfully completed a sex offender
therapy program. The court may not grant supervised
contact with a child if the contact is not recommended by a
qualified practitioner and may deny supervised contact with a
child at any time. When considering whether to approve
supervised contact with a child, the court must review and
consider the following:
1. A risk assessment completed by a qualified practitioner.
The qualified practitioner must prepare a written report
that must include the findings of the assessment and
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address each of the following components:
a. The sex offender’s current legal status;
b. The sex offender’s history of adult charges with apparent
sexual motivation;
c. The sex offender’s history of adult charges without
apparent sexual motivation;
d. The sex offender’s history of juvenile charges, whenever
available;
e. The sex offender’s offender treatment history, including
consultations with the sex offender’s treating, or most
recent treating, therapist;
f. The sex offender’s current mental status;
g. The sex offender’s mental health and substance abuse
treatment history as provided by the Department of
Corrections;
h. The sex offender’s personal, social, educational, and
work history;
i. The results of current psychological testing of the sex
offender if determined necessary by the qualified
practitioner;
j. A description of the proposed contact, including the
location, frequency, duration, and supervisory
arrangement;
k. The child’s preference and relative comfort level with the
proposed contact, when age appropriate;
l. The parent’s or legal guardian’s preference regarding the
proposed contact; and
m. The qualified practitioner’s opinion, along with the basis
for that opinion, as to whether the proposed contact would
likely pose significant risk of emotional or physical harm to
the child.
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The written report of the assessment must be given to the
court. . . .
2. A recommendation made as a part of the risk assessment
report as to whether supervised contact with the child should
be approved;
3. A written consent signed by the child’s parent or legal
guardian, if the parent or legal guardian is not the sex
offender, agreeing to the sex offender having supervised
contact with the child after receiving full disclosure of the sex
offender’s present legal status, past criminal history, and the
results of the risk assessment. The court may not approve
contact with the child if the parent or legal guardian refuses
to give written consent for supervised contact;
4. A safety plan prepared by the qualified practitioner, who
provides treatment to the offender, in collaboration with the
sex offender, the child’s parent or legal guardian, if the parent
or legal guardian is not the sex offender, and the child, when
age appropriate, which details the acceptable conditions of
contact between the sex offender and the child. The safety
plan must be reviewed and approved by the court; and
5. Evidence that the child’s parent or legal guardian
understands the need for and agrees to the safety plan and
has agreed to provide, or to designate another adult to provide,
constant supervision any time the child is in contact with the
offender.
The court may not appoint a person to conduct a risk
assessment and may not accept a risk assessment from a
person who has not demonstrated to the court that he or she
has met the requirements of a qualified practitioner as defined
in this section.
(emphasis added).
Here, the trial court eliminated the mandated condition of “no contact”
without considering the statutorily-required prerequisites for allowing
even supervised visitation. For this reason, we must reverse.
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As a petition for writ of certiorari is the proper vehicle by which to
challenge a trial court’s order modifying a sentence, we treat the State’s
appeal as a petition for writ, grant the petition, and quash the order
modifying Walk’s probationary sentence. See State v. Williams, 780 So. 2d
1031, 1032 (Fla. 1st DCA 2001); State v. Blue, 603 So. 2d 648, 649 (Fla.
5th DCA 1992).
Because we decide this case on the authority of the trial court to
eliminate a statutorily-mandated condition, we need not address the
alternative argument that the trial court lacked jurisdiction to modify
probation more than sixty days after the imposition of the sentence.
For the reasons expressed above, we grant the petition and remand the
case to the trial court to either comply with the dictates of section 948.30
or reinstate the condition.
GROSS and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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