WILLIE B. WARE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a probationer's probationary period is tolled when they abscond from supervision, and the trial court retained jurisdiction to consider violations filed after the original expiration date.
[1] A probationer's probationary period is tolled when the probationer absconds from supervision.
[2] A trial court lacks jurisdiction to entertain an amended affidavit of probation violation that includes a violation occurring after the probationary period has expired, u…
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Join FLexlaw to unlock all legal intelligenceAppellant Ware was placed on probation for firearm possession. An affidavit of violation was filed alleging failure to report, changing employment/res…
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BARFIELD, Judge.
Willie B. Ware appeals from the final judgment and sentence resulting from a revocation of probation. We affirm the judgment of conviction but reverse and remand for resentencing.
The defendant was charged on December 3, 1977 with aggravated battery and possession of a firearm by a convicted felon. The state nolle prossed the aggravated battery charge; appellant pled guilty to the possession charge and was placed on probation for three years, the probationary period to commence upon the expiration of the sentence he was then serving. The probationary period apparently commenced on May 7, 1979.
On July 23, 1980, an affidavit of violation of probation was filed, alleging that 1) appellant failed to file written monthly reports in June and July of 1980; 2) appellant changed his employment without permission; and 3) appellant changed his residence without permission, “absconded from supervision, and his present whereabouts are unknown to his probation supervisor.” The probation officer’s report form recommended that “warrant should be issued and revocation hearing held when the defendant is apprehended.”
On April 6, 1984, appellant pled guilty to second degree murder in Manatee County and was sentenced to twelve years. An amended affidavit of violation of probation and an amended warrant were filed on May 31, 1984, which included the three previous violations and added the second degree murder conviction.
A probation revocation hearing was held on July 13, 1984, at which appellant admitted all four allegations in the amended affidavit. The trial court revoked appellant’s probation based upon all four alleged violations. Appellant requested immediate sentencing. Because of scheduling conflicts, a different public defender represented him at the sentencing.
The public defender who had represented appellant during the plea proceedings had requested that appellant be sentenced under the guidelines. Appellant’s counsellor at sentencing noted that no guidelines worksheet had been prepared and requested the court to instruct the office of parole and probation to prepare one. The court’s reply indicates an intent to sentence appellant first and allow him to decide afterward whether to elect sentencing under the guidelines.
Appellant’s probationary period which commenced on May 7, 1979 would ordinarily have expired on May 6, 1982. He concedes that the trial court had jurisdiction to entertain the original affidavit of violation of probation filed in 1980, but asserts that the court lacked jurisdiction to entertain the amended affidavit filed in 1984 which included a violation which occurred after his probation had expired. The decisions relied upon by appellant, Jess v. State, 384 So. 2d 328 (Fla. 3d DCA 1980) and Williams v. State, 406 So. 2d 86 (Fla. 1st DCA 1981) are not controlling as they are distinguishable from the case under consideration. In neither of those cases had the defendant “absconded from supervision.”
The question to be decided is whether, under the circumstances of this case, appellant’s probationary period had expired at the time the amended affidavit was filed. It is suggested by the state, and we agree, that whenever a probationer absconds from supervision his probationary period is tolled. We have found no Florida case law directly on point. Although this appears to be a question of first impression in Florida, case law of other jurisdictions, as well as simple logic, indicates that where a probationer “absconds from supervision,” the probationary period is tolled until he is once more placed under probationary supervision.1
The record indicates that appellant elected to be sentenced under the guidelines. The trial judge must make an initial determination of the recommended range for a defendant’s crime, and only then may he make a determination that the circumstances justify departure. Gage v. State, 461 So. 2d 202 (Fla. 1st DCA 1984). The trial judge could not have made this initial determination, because he had no score-sheet before him when he passed sentence. See also Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984).
The decision of the trial court is AFFIRMED in part, REVERSED in part, and REMANDED for resentencing.
BOOTH, C.J., and WIGGINTON, J., concur. . United States v. Workman, 617 F. 2d 48 (4th Cir.1980); Nicholas v. United States, 527 F. 2d 1160 (9th Cir.1976); Hall v. Schaeffer, 556 F.Supp. 539 (E.D.Penn.1983); United States v. Green, 429 F.Supp. 1036 (W.D.Texas, 1977); Rauch v. Gray, 346 F.Supp. 284 (E.D.Wis.1972); United States v. Gerson, 192 F.Supp. 864 (E.D. Tenn.1961), affirmed, 302 F. 2d 430 (6th Cir.1962); O’Shea v. State, 683 P. 2d 286 (Alaska Ct.App.1984); Gillespie v. State, 17 Wash.App. 363, 563 P. 2d 1272 (1977).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991)…of the letters from the Flagler County probation officer. However, probation is not normally suspended or tolled retroactively unless the probationer absconds from supervision. Cf. Watson v. State, 497 So. 2d 1294 (Fla. 1st DCA 1986); Ware v. State, 474 So. 2d 332 (Fla. 1st DCA 1985), rev. denied, 484 So. 2d 10 (Fla.1986). Defendant is not objecting to that portion of the order reinstating probation which sets the two monthly payments at a minimum of $25 each. With the exception of setting the two minimum m…
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Williams v. State, 202 So. 3d 917 (Fla. 4th DCA 2016)…supervision.”); Williams v. State, 529 So. 2d 366, 367 (Fla. 2d DCA 1988) (“[W]hen a probationer absconds from supervision, the probationary period is tolled until the probationer is once more placed under probationary supervision.”); Ware v. State, 474 So. 2d 332, 333 (Fla. 1st DCA 1985) (“[Whenever a [*921] probationer absconds from supervision his probationary period is tolled.”). We follow our supreme court and our sister courts to hold that when a probationer absconds from supervision, the probationary…
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Porter v. State, 585 So. 2d 399 (Fla. 1st DCA 1991)…inconsistent with the rehabilitative concept of probation which presupposes that the probationer is not in prison confinement. Any term of probation presumed to run when the defendant cannot be supervised would be a nullity. See e.g. Ware v. State, 474 So. 2d 332 (Fla. 1st DCA 1985) that “where a probationer absconds from supervision the probationary period is tolled until he is once more placed under probationary supervision.” (emphasis supplied) Similarly, in the instant cases, the actions of the defendant…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984)
- Bennie Jess, Jr. v. State, 384 So. 2d 328 (Fla. 3d DCA 1980)
- Gage v. State, 461 So. 2d 202 (Fla. 1st DCA 1984)
- Nicholas v. United States, 527 F.2d 1160 (9th Cir. 1976)
- United States v. Gerson, 302 F.2d 430 (6th Cir. 1962)
- Williams v. State, 406 So. 2d 86 (Fla. 1st DCA 1981)
- United States v. Perlie Donald Workman, 617 F.2d 48 (4th Cir. 1980)