FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2022-2978

LT Case No. 2007-MH-19713

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MICHAEL DONOVAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Brevard County.

Christina Serrano, Judge.

Matthew J. Metz, Public Defender, and George D.E. Burden, 

Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Douglas T. 

Squire, Assistant Attorney General, Daytona Beach, for Appellee.

July 26, 2024

EISNAUGLE, J.

In this Jimmy Ryce Act1 case, Michael Donovan appeals the

trial court’s annual review order that found probable cause did not 

1 The Jimmy Ryce Act, presently codified at sections 394.910-

932, Florida Statutes (2021), provides for the involuntary civil 
2

exist to believe Donovan’s condition has so changed that it is safe 

for him to be at large, and that he will not engage in acts of sexual 

violence if released. We affirm.

Section 394.918 provides that a committed person, such as 

Donovan, is entitled to an examination of his or her mental 

condition at least once every year, and that the person may

“petition the court for release over the objection of the director of 

the facility where the person is housed.” § 394.918(1)–(2), Fla. 

Stat. (2021). Thereafter, the trial court will “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.” § 394.918(3). “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.” Id.

At the limited hearing in this case, Donovan’s expert, Dr. 

Robin Wilson, testified that Donovan’s condition had so changed 

that he would not reoffend if released. To support his conclusion, 

Dr. Wilson identified two specific reasons that Donovan has 

changed. 

First, a substantial amount of time has passed since 

Donovan’s sexual offenses. Dr. Wilson testified that “crime is a 

young man’s game,” so Donovan has changed because he “is now 

59 years old” and therefore less likely to commit crime.2 

commitment of persons who are deemed sexually violent 

predators. 

2 Dr. Wilson explained that once Donovan turns 60, for 

instance, his Static-99R score (a measure of the likelihood that a 

person will sexually reoffend) will decrease by three points. 

According to Dr. Wilson, the Static-99R score is based on an 

offender’s history, so “once scored, [it] is largely unchangeable. 

Unless, while the person is incarcerated, they move through 

certain age bands, which would change the score.”
3

Second, Dr. Wilson concluded, quite vaguely, that Donovan’s 

condition has changed because he “has done a bunch of the 

ancillary programs . . . that are not specifically related to the sex 

offending element, but are certainly things that would help him 

become . . . a better person.”

Notwithstanding his opinion, Dr. Wilson acknowledged that 

Donovan continues to have the same personality disorder that 

drove his sexual offenses, and that this same disorder has caused 

Donovan to refuse to participate in treatment or develop a safety 

plan for his release. Moreover, Dr. Wilson also conceded that 

Donovan still has an “enhanced degree of risk” to be involved in a 

violent crime, but nevertheless opined that Donovan did not pose 

an enhanced risk of sexual violence.

For its case, the State attempted to enter a “Treatment 

Progress Report” prepared by Dr. Carrole DePass into evidence. 

Although the trial court sustained Donovan’s objection, it took 

“judicial notice of the entire court file,” including the report in 

question. 

The DePass report, in pertinent part, opined:

At present, Mr. Donovan has yet to fully address 

relevant treatment issues (i.e.: sexual interests, distorted 

attitude and behaviors, socio-affective issues and selfmanagement) that are associated with his offending 

history; therefore, it is recommended that Mr. Donovan 

continue treatment while he is housed at the Florida Civil 

Commitment Center until such time that the court deems 

him appropriate for release.

In its order finding that probable cause did not exist, the trial 

court initially observed that Dr. DePass concluded “Mr. Donovan 

has failed to fully address relevant treatment issues, including 

sexual interests, distorted attitude[] and behaviors, socio-affective 

issues and self-management that are associated with his offending 

history.” 
4

The trial court then discussed how Dr. Wilson established that 

Donovan’s personality disorder continues to “drive [his] actions.” 

The trial court explained:

Dr. Wilson candidly stated to the Court that “it is clear 

that Mr. Donovan is never going to do that treatment 

program because Mr. Donovan cannot make the rules 

himself to follow.” Mr. Donovan even refuses to 

participate in creating a safety plan if he were to be 

released. Dr. Wilson explained that Mr. Donovan still has 

a personality disorder with narcissism and antisocial 

features that drives Mr. Donovan’s actions, as shown by 

Mr. Donovan’s steadfast refusal to participate in the 

recommended sex offender treatment. Dr. Wilson further 

explained that Mr. Donovan desires to follow only the 

rules that Mr. Donovan creates or wants to follow. Mr. 

Donovan’s personality disorder has manifested itself to 

Dr. Wilson and is evidenced by four disciplinary reports 

since Mr. Donovan’s last review.

Importantly, the trial court considered Dr. Wilson’s testimony 

that “as men get older, they are less likely to engage in criminal 

activity,” but determined that this general factor did not outweigh

the evidence that Donovan’s personality disorder continues to 

drive his actions. The trial court concluded, “Mr. Donovan’s 

behavior has not changed in positive ways.”

On appeal, Donovan raises three arguments.

3 Donovan 

argues that the trial court erred (1) because Donovan “presented 

sufficient evidence to establish probable cause that he no longer 

met the criteria for continuing commitment,” (2) when it based a 

finding of no probable cause on the fact that Donovan has not 

completed treatment, and (3) in relying on the DePass report 

because it does not address “whether Mr. Donovan continues to 

meet commitment criteria.”

3 We limit our inquiry to the issues raised in the initial brief.
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Donovan’s Expert (Dr. Wilson)

Donovan argues that the trial court’s order is in error because 

he presented sufficient evidence to find probable cause relying, in 

part, on our decision in Holder v. State, 123 So. 3d 136 (Fla. 5th 

DCA 2013). In Holder, we stated that, at the limited hearing in 

that case, “the court must assume the petitioner’s evidence is true”

and the trial judge “must not make credibility determinations or 

weigh the petitioner’s evidence against that presented by the 

State.” Id. at 138–39. Instead, we instructed that a trial court’s 

task was to “determine whether there is sufficient evidence . . . to 

conscientiously entertain a reasonable belief that the committed 

person’s mental abnormality or personality disorder has so 

changed that the person is safe to be at large.” Id. at 139 (citation 

omitted). 

But the statute has changed since Holder. At the time of the 

limited hearing in Holder, section 394.918 did not expressly 

authorize the state to present evidence and did not permit the trial 

court to weigh evidence. 

Section 394.918(3) now provides that “[b]oth the petitioner 

and the respondent may present evidence that the court may 

weigh and consider.” As a result, our analysis to the contrary in 

Holder no longer applies, and arguing on appeal that a committed 

person presented “sufficient” evidence cannot, standing alone, 

demonstrate error. See Cox v. Great Am. Ins. Co., 203 So. 3d 204, 

205 (Fla. 4th DCA 2016) (“[O]n appeal the duty rests upon the 

appealing party to make error clearly appear.” (citations omitted)).

Donovan’s Failure to Complete Treatment

Donovan argues that the trial court erred by concluding that 

he must complete treatment. While it is true that the statute does 

not require a committed person to complete treatment, Spivey v.

State, 100 So. 3d 1254, 1256 (Fla. 5th DCA 2012), that is not how 

we read the trial court’s order. 

Instead, the trial court’s decision is based on the fact that 

Donovan’s personality disorder not only continues to exist but is
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also actively driving his actions. The trial court did not reason that 

Donovan must complete treatment before he can receive a full 

trial. Instead, the trial court concluded that his failure to 

participate in treatment, his four recent disciplinary reports, and 

his refusal to create a safety plan are all caused by his existing 

personality disorder. 

On appeal, Donovan does not challenge the trial court’s 

finding, based on entirely undisputed evidence, that his 

personality disorder remains unchanged, or that his failure to 

participate in treatment is evidence that his disorder continues to 

drive his actions. As such, Donovan has not demonstrated error 

on this point either. See Cox, 203 So. 3d at 205.

In any event, Donovan’s comparison of this case to our 

decision in Spivey is unpersuasive. In Spivey, the petitioner

developed a “Relapse Prevention Plan that was appropriate and 

thoughtful,” and also demonstrated that his “behavior had 

changed in positive ways, as a result of his participation in the 

treatment program.” Spivey, 100 So. 3d at 1257 (emphasis added). 

As such, we reasoned the evidence in Spivey supported a finding of 

probable cause because the statute does not require a committed 

person to complete treatment. Id. at 1256 (“Section 394.918(3), 

Florida Statutes (2010), contains no requirement that the 

committed person must complete the treatment program 

established by the Florida Civil Commitment Center.”). 

The situation in Spivey stands in stark contrast to Donovan’s

condition in this case. Here, Donovan did not substantially

participate in treatment, he refused to develop a safety plan, and 

his behavior has not changed “in positive ways”—all because he 

continues to suffer from the same personality disorder that caused 

his offenses in the first place. 4

4 We are also aware that Spivey was decided based on the prior 

version of section 394.918, Florida Statutes.
7

The State’s Report (Dr. DePass)

Finally, Donovan appears to argue that the trial court erred 

when it relied, in part, on the report of Dr. DePass because that 

report does not opine on “whether Mr. Donovan continues to meet 

commitment criteria.” Even if the DePass report would not be 

sufficient, on its own, to support a finding of no probable cause, we 

conclude that the report was relevant because it addressed 

Donovan’s failure to “fully address relevant treatment issues (i.e.: 

sexual interests, distorted attitude and behaviors, socio-affective 

issues and self-management) that are associated with his 

offending history.” We cannot say that the trial court erred when 

it relied, in part, on relevant portions of the DePass report.

In conclusion, Donovan has failed to establish reversible error

on appeal. We must therefore affirm.

AFFIRMED. 

LAMBERT and PRATT, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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