STATE OF FLORIDA, APPELLANT,
v.
LARRY G. WIMBERLY, APPELLEE
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The State appealed a trial court's dismissal of probation revocation proceedings against Wimberly. The court held that the revocation process was timely initiated when both an affidavit and arrest warrant were issued before the probation period expired, even though the affidavit was not formally filed with the clerk until after expiration.
The court held that the revocation process was timely set in motion because both the affidavit was submitted to the court and an arrest warrant was issued prior to the expiration of the probation period, making the subsequent filing date immaterial. The trial court therefore erred in dismissing the proceedings.
[1] A trial court lacks jurisdiction to revoke probation for violations occurring during the probationary period unless the revocation process is initiated before the period…
[2] The probation revocation process is set in motion by the issuance of an arrest warrant by the trial judge prior to the expiration of the probation period.
Previewing 2 of 3 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“A trial court lacks jurisdiction to revoke probation for violations which occur during the period of probation unless the revocation process is set in motion during the probationary period.”
Establishes the controlling legal standard for jurisdiction over probation revocation proceedings.
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Join FLexlaw to unlock all legal intelligenceWimberly's probation was set to expire on December 17, 1988. On December 15, 1988, his probation officer signed an affidavit charging him with failure…
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RYDER, Acting Chief Judge.
The State of Florida seeks review of the trial court’s order dismissing the revocation of probation proceedings against Wimberly. We reverse.
Wimberly’s probation period was to expire on December 17, 1988. However, on December 15, 1988, Wimberly’s probation officer signed an affidavit charging Wim-berly with failure to make reports and payments required of him as a condition of his probation. The affidavit was then submitted to the court and on Friday, December 16, 1988, the trial judge signed and issued a warrant ordering Wimberly’s arrest for violation of probation and forwarded both documents to the office of the clerk. Although the affidavit was stamped “filed” by the court clerk’s office on Monday, December 19, 1988, at 9:00 a.m., the copy of the warrant contained in the record on appeal indicates that it was “filed” with the clerk on February 15, 1989, after service was attempted. That service was attempted on January 5, 1989, but was returned as Wimberly was not at the stated address.
On March 15, 1990, Wimberly moved to dismiss the violations charged because the affidavit was filed after the probation period had expired. The state argued that the probation revocation was timely because the process had been set in motion by the signing of the affidavit and the issuance of the warrant. The trial court agreed with Wimberly and dismissed the revocation proceedings.
A trial court lacks jurisdiction to revoke probation for violations which occur during the period of probation unless the revocation process is set in motion during the probationary period. Rodriguez v. State, 511 So. 2d 444 (Fla. 2d DCA 1987); White v. State 410 So. 2d 588 (Fla. 2d DCA 1982); Gardner v. State, 412 So. 2d 10 (Fla. 2d DCA 1981).
Wimberly relies on this court’s opinion in Rodriguez, in which we held that the mere signing of an affidavit by a probation officer prior to the expiration of the probation period was not sufficient to set the revocation process in motion. The affidavit in Rodriguez was later filed with the clerk of court four days after the expiration of the period.
The case sub judice is distinguishable from Rodriguez, because here, not only was the affidavit submitted to the court prior to the expiration of the period, but an arrest warrant was issued also prior to the expiration of the period of probation. Thus, by these actions, the revocation process was set in motion before the probation period expired. See Fryson v. State, 559 So. 2d 377 (Fla. 1st DCA 1990). Accordingly, the case is reversed and remanded for further proceedings consistent with this opinion.
Reversed and remanded with instructions.
THREADGILL and PARKER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Gardner v. State, 412 So. 2d 10 (Fla. 2d DCA 1981)
- Fryson v. State, 559 So. 2d 377 (Fla. 1st DCA 1990)
- Rodriguez v. State, 511 So. 2d 444 (Fla. 2d DCA 1987)
- White v. State, 410 So. 2d 588 (Fla. 2d DCA 1982)