A. L. A., A CHILD,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D15-5331

_____________________________/

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Appellant’s probation was revoked because she violated the condition that she 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.
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While on probation for simple battery and simple assault, Appellant again 

committed those same acts resulting in an adjudication of delinquency and postcommitment 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 
3

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, 377 So. 2d 1016 (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.” Blue, 377 So. 2d at 1017. 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 . . . .” Id. Based on 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. Id. In reversing 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.” Id. Blue’s statement of his 
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future intent—which was “dubious in sincerity”—fell “far too short of overt conduct 

to support a revocation.” Id.

In contrast 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.” Id. Moreover, the 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.