LARRY EUGENE FAISON

v.

STATE OF FLORIDA

NORDBY, J.

Larry Eugene Faison challenges the revocation of his probation following the trial court’s determination that Faison willfully failed to undergo a required mental health evaluation.

We conclude that this finding is not supported by competent, substantial evidence. We therefore reverse the trial court’s revocation order and remand for the reinstatement of Faison’s probation.

I. Faison pleaded guilty to tampering with a victim, violation of a no-contact order, resisting an officer without violence, and aggravated battery on a pregnant person. As part of his plea agreement, he received forty-eight months on probation, with a suspended sentence of forty-eight months’ imprisonment. Faison also agreed to several conditions, one of which was to undergo a mental health evaluation and counseling at the direction of his probation officer. Before the entry of this plea, the trial court had found Faison indigent with a take home income of $0.00 and no assets. Faison ultimately entered a payment plan agreement, under which he would pay at least $45.00 a month towards satisfaction of his court costs and fines (which totaled just under $1900.00).

Four months after his sentencing, in June 2021, Faison’s probation officer, Linda Purvis, filed a technical violation notice alleging that Faison did not complete the mental health evaluation at her direction. In her violation notice, Purvis explained that she had instructed Faison twice to complete a mental health evaluation at an organization called CARE, but he had not yet done so. Purvis noted that Faison was instructed to undergo a scheduled evaluation at CARE in March 2021 but had twice rescheduled it for later dates “due to not having the funds for his copay.” (Faison would have had to pay $50.00 for the CARE evaluation).

In response to this notice, the trial court directed Purvis to provide a detailed violation report accompanied by an affidavit and warrant. The subsequently filed violation report (filed in July 2021) further detailed that Purvis instructed Faison to obtain the evaluation, but Faison “stated that he did not have the funds to do so.” So Purvis “instructed [Faison] to go ahead and schedule the evaluation and by the time the appointment came around he should have the money” as Faison was employed then. At the violation of probation hearing, Faison testified that he did not have the money for the evaluation, as he was paying court costs (under his payment plan), rent, and child support for his four children. Purvis testified that she had tried to get Faison to complete the mental health evaluation at least four times. She confirmed that Faison had told her that he needed to reschedule because he did not have the funds for the evaluation. Purvis also noted that Faison had attempted to provide an earlier-conducted mental health evaluation from a different organization, Life Management, but she did not accept it because it had been performed before his probation term started. Purvis acknowledged she would have approved him going to Life Management for another evaluation (which would have been free) instead of CARE, but because Faison did not ask her about it, she did not offer that as an option. She also confirmed that Faison was employed, but she could not answer whether his employment meant that he would no longer be considered indigent.

The trial court found that Faison was in willful violation of his probation. It concluded that Faison’s testimony was not credible. It also determined that, based on Purvis’s testimony, “it was only after he was ready to be violated that he began to claim the indigency status with Ms. Purvis.” Based on this willfulness finding, the trial judge revoked Faison’s probation and sentenced him to forty-eight months in the Department of Corrections. This appeal followed.

II. There are two relevant standards guiding our review in this case. See Thompson v. State, 250 So. 3d 132, 136 (Fla. 1st DCA 2018). We afford deference to the trial court’s ultimate decision to revoke probation, reversing only when an abuse of discretion has occurred. Id. (citing Del Valle v. State, 80 So. 3d 999, 1009 (Fla. 2011); Savage v. State, 120 So. 3d 619, 621–24 (Fla. 2d DCA 2013)). Yet before a trial court may exercise its discretion and revoke probation, it must first find that a willful and substantial violation has occurred; that finding must be supported by competent, substantial evidence. Id. (citing Brown v. State, 221 So. 3d 731, 733–34 (Fla. 1st DCA 2017)).

On appeal, Faison first argues that there was a discrepancy between the oral pronouncement and the written order of probation instructing him to obtain a mental health evaluation. Faison asserts that the trial court did not orally pronounce that he was responsible for the cost of the mental health evaluation, and so it was not a valid condition. Since this issue was not raised in the lower court, however, it is not preserved for our review here.

Faison next challenges the trial court’s determination that his failure to obtain a mental health evaluation was a willful violation of his probation. For a trial court to revoke a defendant’s probation, the violation must be “willful and substantial.” Odom v. State, 15 So. 3d 672, 675 (Fla. 1st DCA 2009) (citing Burgin v. State, 623 So. 2d 575, 576 (Fla. 1st DCA 1993)).

If a defendant “makes reasonable efforts to comply with a condition of [his] probation, violation of the condition cannot be deemed ‘willful.’” Meade v. State, 799 So. 2d 430, 432 (Fla. 1st DCA 2001) (quoting Van Wagner v. State, 677 So. 2d 314, 317 (Fla. 1st DCA 1996)).

When factors beyond a defendant’s control cause his non-compliance, the violation is not willful. Soto v. State, 727 So. 2d 1044, 1046 (Fla. 2d DCA 1999) (citing Jacobsen v. State, 536 So. 2d 373, 375 (Fla. 2d DCA 1988)).

Relevant to our inquiry here, when a monetary obligation is a condition of a defendant’s probation, his failure to pay is willful if he “has, or has had, the ability to pay the obligation and purposefully did not do so.” King v. State, 268 So. 3d 936, 938–39 (Fla. 1st DCA 2019) (quoting Aviles v. State, 165 So. 3d 841, 843 (Fla. 1st DCA 2015)). In other words, a defendant’s failure to satisfy a condition of probation is not willful if he failed to do so because he could not pay for it. See id. at 939 (citing Selig v. State, 112 So. 3d 746, 750 (Fla. 2d DCA 2013)).

Before the trial court, the State has the initial burden of showing a defendant’s nonpayment and willfulness. Thompson v. State, 250 So. 3d 132, 135 (Fla. 1st DCA 2018). Once the State has met this burden, the defendant must prove that he made “sufficient bona fide efforts” to make the required payments but still did not have the resources to do so. Id. at 135–36 (first quoting § 948.06(5), Fla. Stat.; then citing Del Valle, 80 So. 3d at 1002, 1015). If the trial court finds that there was a willful and substantial violation, it then has the broad discretion to revoke a defendant’s probation. Id. at 136 (citing Brown, 221 So. 3d at 733).

III.

We agree with Faison that the trial court’s finding of a willful violation lacks evidentiary support. Setting aside Faison’s own testimony below as to his inability to pay for the evaluation (which the trial court found not credible), Purvis’s testimony confirmed that Faison’s delay in obtaining the evaluation reportedly was due to his lack of funds. Purvis testified that she instructed Faison to complete the mental health evaluation at CARE at least four times. His response to her was that he had to reschedule because he did not have the money to pay for the evaluation.

The trial court based its finding of a willful violation on Purvis’s testimony, explaining that “the record evidence” before it was “that it was only after [Faison] was ready to be violated that he began to claim the indigency status with Ms. Purvis.” But this statement of the “record evidence” conflicts with Purvis’s actual testimony. It also stands at odds with the June violation notice, which documented that Faison had reported his inability to pay before any violation documents were filed with the trial court. This means there is no record evidence to support the finding that Faison only claimed indigency status as a pretense when faced with the risk of violation. The State thus did not show that Faison willfully failed to undergo the required mental health evaluation. Based on Purvis’s own testimony, Faison communicated to her that he did not have the funds to pay for the evaluation at CARE. It is true that Faison was aware of an alternate free option at Life Management (as he had obtained an evaluation from there before), but Purvis never instructed him to complete the evaluation there. Rather, because he did not ask for it, she did not offer it as an option. Instead, Purvis continued to direct him to go to CARE.

Accordingly, the availability of a free, alternate option does not change our analysis. Nor did the State introduce any evidence that Faison had the money for the evaluation and purposefully did not complete it. Without such evidence––and the opportunity for rebuttal––the trial court could not determine that Faison willfully violated his probation.

Thus, the State failed to meet its burden of showing willfulness. Because there is no competent substantial evidence supporting the trial court’s finding that Faison willfully violated his probation, the trial court reversibly erred in revoking Faison’s probation.

Thus, we reverse the revocation order and remand for the reinstatement of Faison’s probation. REVERSED and REMANDED.

B.L. THOMAS, J. concurs; KELSEY, J., dissents with opinion.