FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Escambia County. Jennie M.
Thomas, Public Defender; and Steven L. Seliger, Assistant
Public Defender, for Appellant.
Jo Bondi, Attorney General; and David Llanes, Assistant
Attorney General, Tallahassee, for Appellee.
Nicole Junk was adjudicated guilty and sentenced to six
months of probation after entering a negotiated plea. She
signed a plea form agreeing to comply with all standard
conditions of probation as required by statute. She violated
her probation and was sentenced to eleven months and thirty
days in county jail, with credit for time served, which would
have been a legal sentence for her underlying offense. The
specific violations of probation alleged were as follows: (1)
failing to report to her probation officer in December 2015
and January 2016; (2) changing her residence without consent;
(3) failing to report to her probation officer on November
23, 2015; and (4) refusing to submit to drug and alcohol
with the State's concession of error, we reverse as to
the second and fourth violations for changing residence
without consent and refusing to submit to drug and alcohol
tests, because the trial court did not orally pronounce these
findings. See Maddox v. State, 619 So.2d 473, 473
(Fla. 1st DCA 1993) (remanding with instructions to amend the
written revocation order to comport with court's oral
pronouncements). We nevertheless affirm the order revoking
probation and the sentence imposed.
preponderance of the evidence standard applies. Van
Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996).
A violation of probation must be both substantial and willful
to justify revoking probation. Burgin v. State, 623
So.2d 575, 576 (Fla. 1st DCA 1993); see also Savage v.
State, 120 So.3d 619, 621 (Fla. 2d DCA 2013) (explaining
competent substantial evidence standard as threshold question
for findings of substantiality and willfulness). The trial
court's finding of substantial and willful violations is
reviewable for abuse of discretion. Lawson v. State,
969 So.2d 222, 229 (Fla. 2007) (applying abuse of discretion
standard to trial court's ultimate decision to revoke
probation). Here, defense counsel stipulated that
Appellant's violations of probation were substantial, and
argued only willfulness.
affirm the trial court's finding that Appellant willfully
violated her probation by failing to report to her probation
officer on November 23, 2015. The record reflects that
Appellant was instructed where to go for the initial meeting
with her probation officer, but went to the wrong office. She
was told that she was at the wrong office, and was told again
where to go to meet with her probation officer. She
nevertheless failed to report to the correct address and
failed to make any further contact, ever, with her probation
officer. The defense argued that Appellant's mistaken
reporting to the wrong probation field office for the initial
meeting with her probation officer exhibited an attempt to
comply and thus was not willful.
preponderance of competent, substantial evidence supports the
trial court's finding that Appellant's violation was
willful. Our conclusion is bolstered by the fact that
Appellant made no further effort to report to her probation
officer. A defendant's complete failure to report to the
assigned probation officer establishes a substantial and
willful violation. Brown v. State, 776 So.2d 329,
330 (Fla. 5th DCA 2001) (affirming order revoking probation
after appellant "failed to report at all"). In
Brown, the defendant reported to his probation
officer for an initial meeting, but the officer did not have
the defendant's file yet, and therefore told him to
contact the officer the following week. He failed to do so.
The appellate court affirmed the trial court's finding of
a substantial and willful violation of probation, describing
the defendant's "failure to report at all" as
showing "'a complete indifference to compliance with
[the] conditions of probation.'" Brown, 776
So.2d at 330 (quoting Goley v. State, 584 So.2d 139,
141 (Fla. 5th DCA 1991)). On the facts presented, we need not
evaluate separately whether Appellant's failure to report
during the two months before the probation officer filed the
affidavit of violation of probation constituted a separate
violation or impacted the sentence imposed. Appellant's
"complete lack of effort to contact [her] probation
officer and [her] complete indifference to [her]
obligations" is sufficient to support revocation of
probation. Grimsley v. State, 408 So.2d 1075, 1075
(Fla. 2d DCA 1982).
trial court was within its discretion to impose an
eleven-month, thirty-day sentence on these facts.
See § 948.06(2)(e), Fla. Stat. (2015) (allowing
trial court upon revocation of probation to impose "any
sentence which it might have originally imposed before
placing the probationer on probation"). Appellant's
counsel conceded at the hearing that Appellant faced this
sentence, but argued for leniency. The state reviewed the
facts giving rise to the violation, and Appellant's prior
record of six misdemeanors. The trial court immediately
imposed this sentence after orally adjudicating Appellant
guilty of failing to report. We therefore affirm the order of
revocation and the sentence imposed. See Grimsley,
408 So.2d at 1076 (affirming both revocation and sentence
where record satisfied appellate court that trial court would
impose the same sentence).
in part, REVERSED in part, and REMANDED for further
proceedings consistent with this opinion.
THOMAS, CJ, and KELSEY, J, CONCUR; RAY, J, CONCURS IN PART