IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

A. L. A., A CHILD,                     NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D15-5331

STATE OF FLORIDA,

      Appellee.


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Opinion filed June 24, 2016.

An appeal from the Circuit Court for Nassau County.
Adrian G. Soud, Judge.

Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public
Defender, for Appellant.

Pamela Jo Bondi, Attorney General, Jillian H. Reding, Assistant Attorney General,
and Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Office of the
Attorney General, Tallahassee, for Appellee.



PER CURIAM.

      Appellant’s probation was revoked because she violated the condition that she

“participate in and complete residential treatment” at a facility in Orlando, Florida.

She challenges the revocation order, saying that her plans to flee the facility never

came to fruition and thereby cannot constitute a violation. We disagree.
      While on probation for simple battery and simple assault, Appellant again

committed those same acts resulting in an adjudication of delinquency and post-

commitment probation. During the new probationary period, she was released to the

care of her father, but absconded within two weeks of that placement. After

admitting to a violation, she was again placed on probation with the special

requirement that she “participate in and complete residential treatment” at the

Orlando facility.

      Within a week of placement, however, Appellant told staff at the facility that

she was leaving, that she’d arranged for someone to pick her up, and that her parole

officer had been notified. Corroborating her claim that she’d arranged to be picked

up, the facility received a phone call from someone seeking to confirm the facility’s

address and the time that Appellant was to be picked up. Appellant later testified at

her revocation hearing that the caller was her friend but that she’d subsequently

called her to cancel her plans to leave and that the friend should not come to get her.

She remained at the facility until law enforcement picked her up the next day for

violating the terms of her probation.

      At her revocation hearing, the trial court found that sufficient evidence existed

to find that Appellant willfully and substantially violated a material condition of her

probation. Specifically rejecting Appellant’s testimony, the trial court explained:

      I’m not able to accept the child’s testimony that she recanted and
      instructed this individual not to come. What is clear from her testimony
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       is that ultimately she took an overt step in beginning to violate her
       probation when she called this individual to arrange to come get her,
       that is the step necessary, as this court views it, at least, to satisfy [the
       decision in Blue v. State, 

(Fla. 2d DCA 1979)], that
       some overt material step had been taken in the violation of probation.
       So as this court views it the child had willfully violated, based upon the
       testimony presented, her probation.

The trial court concluded that Appellant’s actions in arranging to leave the facility

were sufficient to establish a probation violation even though her plan “never came

to fruition.”

       We begin with Blue, which held that a defendant’s probation cannot be

“revoked solely on the basis of an expressed intention to violate its

conditions.” 

. After sentencing, a bailiff overheard Blue say

he would probably violate his probation to get a shorter prison sentence versus three

years in a county jail, a place where he “would end up having to smack [other

inmates] upside the head . . . .” 

Blue’s overheard comments, the

sentencing judge found a probation violation. Blue argued that he had committed no

overt act in furtherance of a probation violation and that his words alone were

insufficient to do so, but the trial court disagreed. 

the trial court’s

revocation order, the Second District noted that the caselaw suggests “there must be

a showing of some overt material violation—some act evidencing an intent to

contravene the good intentions of the sentencing magistrate and an inability to

comport with the restrictions that accompany probation.” 

of his

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future intent—which was “dubious in sincerity”—fell “far too short of overt conduct

to support a revocation.” 

to Blue’s mere ruminations, Appellant undertook actual steps to

remove herself from the residential treatment facility, satisfying the overt act

requirement. The State presented proof that Appellant had previously absconded

from probation, that she had expressed an intent to violate her current probation, that

she took actual steps to arrange for her departure (i.e., abscond again), and that her

actions demonstrated an inability to “comport with the restrictions [staying at the

residential   treatment   facility   until   completion]   that   accompan[ied    her]

probation.” 

trial court specifically rejected her testimony that she

had cancelled her plans to be picked up by her friend, something the trial court was

entitled to do.

      AFFIRMED.

ROWE, MAKAR, and BILBREY, JJ., CONCUR.




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