GAYLE A. GURGANUS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed a probation revocation because the probation officer lacked authority to unilaterally extend the probation term without a judicial hearing and due process.
A probation officer cannot extend a probationary term without a judicial hearing and due process, and any such extension is invalid.
[1] A probation officer lacks authority to extend a probationary term without a judicial hearing and due process, and any such extension is void.
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is not for a probation supervisor to make agreements with probationers about the length of the term of probation. In fact, even a judge cannot extend the probationary term without a hearing, with due process, and having the accused violator before the court.”
The court explaining the limits of probation officer authority and judicial requirements for extending probation.
Gurganus was placed on probation for one year on April 10, 1978. On April 9, 1979, the probation officer extended the term six months without a hearin…
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DAUKSCH, Chief Judge.
This is an appeal from an order revoking probation. On April 10, 1978, appellant was placed on probation for one year. On April 9, 1979, the term of the probation was extended six months without a hearing and only because the probation officer said she talked to the appellant and it was agreed the probation could be extended in lieu of a hearing on alleged violations. It is not for a probation supervisor to make agreements with probationers about the length of the term of probation. In fact, even a judge cannot extend the probationary term without a hearing, with due process, and having the accused violator before the court. Sec. 948.06, Fla.Stat. (1979); Patrick v. State, 336 So. 2d 1253 (Fla. 1st DCA 1976). Appellee’s argument that appellant waived the notice and hearing is without merit. There is no showing that there was a knowing, intelligent and voluntary waiver, properly made and before the court. In fact, there is a good possibility the appellant had a valid legal defense to the first allegation of violation. Holt v. State, 385 So. 2d 1133 (Fla. 5th DCA 1980); Baran v. State, 381 So. 2d 323 (Fla. 5th DCA 1980); Freiberger v. State, 343 So. 2d 57 (Fla. 4th DCA 1977). This defense was from the testimony of the probation supervisor who said the appellant failed to make some required payments because she was out of work.
The court lacked jurisdiction to revoke the putative probation because the attempted extension was invalid. Thus the order revoking probation is reversed and the appellant is ordered discharged.
REVERSED.
ORFINGER and COBB, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Clark v. State, 579 So. 2d 109 (Fla. 1991)…ourt relied on cases holding that a probationer cannot agree with his probation officer to an extension of probation in lieu of compliance with the procedures of section 948.06. Carter v. State, 516 So. 2d 331 (Fla. 1st DCA 1987); Gurganus v. State, 391 So. 2d 806 (Fla. 5th DCA 1980); Patrick v. State, 336 So. 2d 1253 (Fla. 1st DCA 1976).2 The trial court erred in this case by enhancing the terms of Clark’s community control without notice and hearing. Section 948.06, Florida Statutes (1987), provides the so…
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Holcombe v. State, 553 So. 2d 1337 (Fla. 1st DCA 1989)…provides the sole means by which a probationary term may be modified_ A probationer cannot agree with his probation officer to an extension in lieu of compliance with the procedures set forth in § 948.06. (Citations omitted). In Gurganus v. State, 391 So. 2d 806, 807 (Fla. 5th DCA 1980), it was held: It is not for a probation supervisor to make agreements with probationers about the length of the term of proba [*1340] tion.... even a judge cannot extend the probationary term without a hearing, with due pro…
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Carter v. State, 516 So. 2d 331 (Fla. 1st DCA 1987)…onary term may be modified. Patrick v. State, 336 So. 2d 1253 (Fla. 1st DCA 1976). A probationer cannot agree with his probation officer to an extension of probation in lieu of compliance with the procedures set forth in § 948.06. Gurganus v. State, 391 So. 2d 806 (Fla. 5th DCA 1980). Therefore Carter’s probation terminated in July 1984, and the court was without jurisdiction to consider any violation purportedly occurring at any point thereafter. The order revoking probation is reversed and Carter is ordered…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Holt v. State, 385 So. 2d 1133 (Fla. 5th DCA 1980)
- Verle Vernelle Patrick v. State, 336 So. 2d 1253 (Fla. 1st DCA 1976)
- Freiberger v. State, 343 So. 2d 57 (Fla. 4th DCA 1977)
- Baran v. State, 381 So. 2d 323 (Fla. 5th DCA 1980)