MICHAEL HALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A delay between filing an affidavit of probation violation and arrest does not violate due process rights, and a motion to dismiss based on such delay is untimely if not filed properly.
[1] Speedy trial considerations do not apply to probation revocation proceedings because revocation is a sentencing function, not a trial.
[2] Probation revocation proceedings must comply with due process, including notice of charges, the right to confront and present witnesses, and a hearing before a neutral bo…
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Join FLexlaw to unlock all legal intelligenceAppellant was placed on probation and a third affidavit of violation was filed. Appellant was arrested 15 months later, and on the day of the hearing,…
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WENTWORTH, Judge.
Appellant seeks review of a probation revocation order. He argues that a 15-month delay between the filing of the affidavit of revocation and his arrest violated his constitutional right to due process, and that the trial court erred in denying his motion to dismiss the affidavit. We affirm.
Appellant on July 29,1983 plead guilty to three counts of aiding in a lottery, in violation of section 849.09(l)(d), Florida Statutes, and was placed on probation for a period of five years. His probation was modified twice following the filing of two affidavits of violation of probation. A third affidavit of violation, alleging that appellant had failed to live at liberty without violating the law, was filed April 9, 1985. Appellant was arrested July 2, 1986. On the day of the probation revocation hearing appellant submitted to the court a motion to dismiss the affidavit on the ground that the 15-month delay between the filing of the affidavit and the arrest violated his due process rights. After appellant presented the legal and factual basis for the motion, the state objected to the motion as untimely in that appellant had served the motion to the state only 30 minutes prior to the hearing. The court denied the motion as untimely filed and found that any issues raised regarding appellant’s due process rights had been waived. The court then found that based on a conviction for breach of peace and disorderly intoxication, appellant had violated his probation.
Appellant incorrectly analogizes the 15-month prearrest delay in this case to the deprivation of the constitutional right to a speedy trial. Speedy trial considerations do not apply to revocation of probation proceedings because revocation is a sentencing function rather than a trial. Gonzalez v. State, 447 So. 2d 381 (Fla. 3d DCA 1984). Although probation revocation proceedings must comply with the minimal requirements of due process, those requirements involve the probationer’s right to have notice of the charges filed against him, to confront and present witnesses, and to have a hearing before a neutral and detached body. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). A probationer’s due process right to a hearing within a reasonable time after being taken into custody is held to be satisfied by the statutory requirement for a hearing within 10 days of the probationer’s arrest. Bernhardt v. State, 288 So. 2d 490 (Fla.1974). The decisions do not, however, support a similar due process right to arrest within a reasonable time following the filing of the affidavit of revocation. Because we find no due process violation in the 15-month prearrest delay in this case, we conclude that appellant’s motion to dismiss was not based upon the fundamental grounds necessary to remove it from the time requirements of Florida Rule of Criminal Procedure 3.190(c). The trial judge therefore properly denied the motion as untimely.
The order is affirmed.
BOOTH and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Kilpatrick v. State, 516 So. 2d 56 (Fla. 2d DCA 1987)…amended affidavit was obviously the affidavit with which all parties were working at the revocation hearing. Thus, the appellant knew the allegations of violations against him and was not deprived of any of his rights of due process. Hall v. State, 512 So. 2d 303 (Fla. 1st DCA 1987) (probationers’ rights to due process consist of right to notice of charges filed against them, right to confront and present witnesses, and right to a hearing before a neutral and detached body). Under these particular facts it w…
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Weyburn v. State, 763 So. 2d 1203 (Fla. 1st DCA 2000)…0). Rather than dismiss, we elect to treat the appeal as a petition for prohibition in accordance with Subervi and Florida Rule of Appellate Procedure 9.040(c). On the merits, however, we find the trial judge reached the right result. Hall v. State, 512 So. 2d 303 (Fla. 1st DCA 1987); Gonzalez v. State, 447 So. 2d 381 (Fla. 3d DCA 1984). Accordingly, the pe [*1204] tition for writ of prohibition, so treated, is denied. JOANOS, MINER and DAVIS, JJ., concur.…
Authorities Cited
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973)
- Gideon Bernhardt v. State, 288 So. 2d 490 (Fla. 1974)
- Fidel Gonzalez v. State, 447 So. 2d 381 (Fla. 3d DCA 1984)