Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT In re Commitment of Raymond Drake. ) ___________________________________) ) RAYMOND DRAKE, ) ) Appellant, ) ) v. ) Case No. 2D19-2285 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed March 3, 2021. Appeal from the Circuit Court for Pinellas County; Paul A. Levine, Judge. Howard L. Dimmig, II, Public Defender, and Carol J. Y. Wilson, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Blain A. Goff, Assistant Attorney General, Tampa, for Appellee. SLEET, Judge. Raymond Drake, who is currently involuntarily committed pursuant to the Involuntary Civil Commitment of Sexually Violent Predators Act,1 challenges the trial 1§§ 394.910-.932, Fla. Stat. (2019). court's Order on Probable Cause Hearing, in which the court determined that there was not probable cause to believe that Drake's condition as a sexually violent predator had so changed that it was now safe for him to be at large. Based on that determination, the trial court denied Drake a trial to determine the legality of his continued detention as a sexually violent predator. We reverse. Pursuant to section 394.918(1), Florida Statutes (2019), a person involuntarily committed as a sexually violent predator "shall have an examination of his or her mental condition once every year or more frequently at the court's discretion." Then "[t]he results of the examination shall be provided to the court that committed the person," and "the court shall conduct a review of the person's status." Id. The committed person then has the "right to petition the court for release," § 394.918(2), and pursuant to section 394.918(3), [t]he 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. . . . 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. Drake was first detained as a sexually violent predator in 2013. At the limited probable cause hearings conducted as part of his 2017, 2018, and 2019 annual reviews, Drake presented two expert witnesses who both testified that due to his age— he was born in 1950—and his diagnosis with stage 4 chronic obstructive pulmonary disease (COPD), Drake is no longer physically able or mentally likely to commit a sexually violent crime. And at each hearing, the State relied on the written report of an expert who opined that Drake still presented a danger to society. -2- The order on appeal in this case came out of the 2019 proceeding. However, Drake previously appealed the 2017 and 2018 orders in which the trial court also found no probable cause and denied him a trial, and this court reversed the trial court and remanded for a trial on the legality of Drake's continued commitment. See Drake v. State, 295 So. 3d 1269 (Fla. 2d DCA 2020). In that opinion, this court concluded as follows: Drake's evidence regarding his deteriorating physical condition and advancing age met [the probable cause] threshold. . . . [I]n order to continue to detain Drake, the State must demonstrate not only that his mental condition remains unchanged, but also that if released he is likely to engage in acts of sexual violence. Drake's evidence and argument focus[] on changes to the latter, not the former. In other words, his argument is that regardless of whether he continues to be a sexual sadist, he is now physically unable to commit acts of sexual violence and thus cannot be deemed likely to engage in acts of sexual violence. . . . [A]ll section 394.918(3) requires is for a detainee to produce sufficient evidence "to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the committed person's condition has changed" so that it is safe for him to be [at] large. Drake did this. Id. at 1272 (citations omitted). Accordingly, this court reversed the trial court's 2018 order.2 Id. Our review of the record in the instant case indicates that the evidence before the trial court here was essentially the same as that presented by Drake in his 2017 and 2018 probable cause hearings. See id. at 1271. As such, based on the same 2In that appeal, which "consolidated Drake's appeals of the orders entered in 2017 and 2018," this court noted that "our reversal is based on the record of Drake's 2018 review hearing" and concluded that "[b]ecause we are reversing based on what transpired in 2018, we need not reach the merits of Drake's appeal of the order rendered in 2017." 295 So. 3d at 1270 n.1. -3- reasoning, we reverse the trial court's 2019 order finding no probable cause and remand for trial pursuant to section 394.918(4). Reversed and remanded. LaROSE and SMITH, JJ., Concur. -4-