STATE OF FLORIDA, APPELLANT,
v.
STEVEN SCHAFER, APPELLEE
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Florida appeals from an order suppressing cocaine found during an arrest based on a warrant issued during an allegedly void probation extension. The court affirmed the suppression, holding that the probation extension conducted without a hearing or counsel was illegal, making the resulting warrant void and the subsequent arrest and search unconstitutional.
The court affirmed suppression of the cocaine. The probation extension conducted without a hearing or counsel was void because F.S. 948.06 does not authorize extension of probation (only modification of its terms), and a defendant cannot confer jurisdiction on the trial court by waiver or consent. Because the warrant was issued during this void probation extension period, it was void and could not serve as the basis for a lawful arrest and search.
[1] A probation extension agreed to by a defendant without a hearing or advice of counsel is a nullity.
[2] A void arrest warrant cannot serve as the basis for a legal arrest and subsequent search.
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Join FLexlaw to unlock all legal intelligence“That Defendant's agreement to extend probation, made without a hearing or advice of counsel is a nullity”
Establishes the core legal principle that probation extensions without proper procedural safeguards are void
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Join FLexlaw to unlock all legal intelligenceSchafer was placed on probation for DUI in December 1987. In May 1988, without counsel, he signed a request to extend probation by two months to compl…
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PER CURIAM.
The state appeals from an order granting appellee’s motion to suppress. We affirm.
On December 1, 1987, appellee was placed on six months probation for driving under the influence. On May 3,1988, without advice of counsel, he signed a request for extension of probation which extended his probationary period by two months to July 31, 1988, so that he could complete the Court Alcohol Substance Abuse Program (CASAP). The request for extension of probation provides that he is giving up the right to a hearing.
On May 11, 1988, the trial court entered an order, modifying appellee’s probation as outlined in his May 3, 1988, request for extension of probation. The modification order provides that his probation is extended two months to commence June 1, 1988, and to terminate July 31, 1988 in order for appellee to complete CASAP. On July 13,1988, a probation officer filed an affidavit of violation of probation. The affidavit provides that appellee failed to complete CASAP and fifty hours of community service. On July 30, 1988, the trial court issued a warrant for his arrest.
On November 10, 1989, appellee was involved in an automobile accident and was taken to Imperial Point Hospital. At that time, Officer Thomas Dickson of the Fort Lauderdale Police Department received information from the Pompano Police Department that there was an outstanding warrant for appellee’s arrest. Officer Dickson confirmed the existence of the warrant and arrested appellee at the hospital. During the booking process at the Fort Lauderdale City Jail, Detention Officer Robert Urow searched appellee and found two plastic bags of white powder in his left front pants pocket. A field test revealed that the powder in both bags was cocaine. This result was confirmed by the Broward Sheriff’s Office Crime Lab. Ap-pellee was charged with possession of cocaine by information filed on November 30, 1989.
When appellee appeared before the trial court on the warrant for violation of probation, the trial court found that he had in fact completed CASAP and community service which was required under the order of probation. It dismissed the warrant and terminated the probation because he had complied with the conditions of probation.
Appellee then filed a motion to suppress the cocaine, alleging that it was obtained as a result of an illegal search because the arrést was based on a void warrant.
The trial court granted appellee’s motion to suppress, and found that appel-lee’s probation was illegally extended because the extension was conducted without a court hearing and without representation by counsel. Additionally, the trial court found that the warrant which was issued during appellee’s illegally extended period of probation was void and could not be the basis for a legal arrest and search. The state then filed the instant appeal. We approve and adopt the trial court’s order which provided in part:
2. That Defendant’s agreement to extend probation, made without a hearing or advice of counsel is a nullity, Marsh v. State, [559 So. 2d 411 (Fla. 2d DCA 1990)]; Dover v. State, [558 So. 2d 101 (Fla. 1st DCA 1990)]; Clark v. State, [559 So. 2d 1272 (Fla. 2d DCA 1990)].
3. That the officer relied solely on the information that there was an outstand ing warrant; however, a void warrant may not be the basis for a legal arrest and search. State v. Gifford, [558 So. 2d 444 (Fla. 4th DCA 1990)]; Martin v. State, 424 So. 2d 994 (Fla. 2d DCA 1983); Pesci v. State, 420 So. 2d 380 (Fla. 3d DCA 1982).
4. That F.S. 948.06 authorizes modification of terms and conditions within the probationary period, but does not authorize extension of the period. Patrick v. State, 336 So. 2d 1253 (Fla. 1st DCA 1976).
5. That the Defendant cannot confer jurisdiction on the trial court by waiver, acquiescence, estoppel or consent. White v. State, 404 So. 2d 804 (Fla. [2d DCA] 1981).
6. That the contraband seized pursuant to this unlawful arrest should be suppressed as “fruit of the poisonous tree”. Wong Sun v. United States, 371 U.S. 407 , 488, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963).
GLICKSTEIN, C.J., and DOWNEY and FARMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Winter v. State, 781 So. 2d 1111 (Fla. 1st DCA 2001)…of the trial court. “[LJack of jurisdiction can be raised at any time.” See Booker v. State, 497 So. 2d 957 (Fla. 1st DCA 1986). Moreover, lack of jurisdiction cannot be cured by consent, nor may it be waived by the defendant. See State v. Schafer, 583 So. 2d 374 (Fla. 4th DCA 1991). The Office of the Statewide Prosecutor is a creature of the Florida Constitution and of specific Florida Statutes. See Art. IV, § 4(c), Fla. Const.; § 16.56(1)(a), Fla. Stat. (1999); Zanger v. State, 548 So. 2d 746 (Fla. 4th DC…
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State v. White, 660 So. 2d 664 (Fla. 1995)…d 4 days prior to the defendant's arrest. The trial court found that a void warrant cannot support a legal arrest and incidental search and granted White's motion to suppress the contraband. The district court affirmed pursuant to State v. Schafer, 583 So. 2d 374 (Fla. 4th DCA 1991), review dismissed, 598 So. 2d 78 (Fla. 1992); State v. Gifford, 558 So. 2d 444 (Fla. 4th DCA 1990); and Albo v. State, 477 So. 2d 1071 (Fla. 3d DCA 1985). White, 636 So. 2d at 753. We approve the decision of the court below, but…
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Evans v. State, 647 So. 2d 180 (Fla. 1st DCA 1994)…d. See Robinson v. State, 373 So. 2d 898, 902 (Fla. 1979). The parties cannot, even by stipulation, confer jurisdiction upon a court where no jurisdiction exists. Sclafani v. County of Dade, 323 So. 2d 675 (Fla. 3d DCA 1975). See State v. Schafer, 583 So. 2d 374 (Fla. 4th DCA 1991); Wilson v. State, 487 So. 2d 1130 (Fla. 1st DCA 1986); Wolfson v. State, 437 So. 2d 174 (Fla. 2d DCA 1983). “It is well settled that defendant cannot confer jurisdiction on the trial court by waiver, acquiescence, estoppel, or co…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wong SUN v. United States, 371 U.S. 471 (U.S. 1963)
- White v. State, 404 So. 2d 804 (Fla. 2d DCA 1981)
- Martin v. State, 424 So. 2d 994 (Fla. 2d DCA 1983)
- Pesci v. State, 420 So. 2d 380 (Fla. 3d DCA 1982)
- Verle Vernelle Patrick v. State, 336 So. 2d 1253 (Fla. 1st DCA 1976)
- State v. Gifford, 558 So. 2d 444 (Fla. 4th DCA 1990)
- Marsh v. State, 559 So. 2d 411 (Fla. 2d DCA 1990)
- Clark v. State, 559 So. 2d 1272 (Fla. 2d DCA 1990)
- Dover v. State, 558 So. 2d 101 (Fla. 1st DCA 1990)
- Terrie Ellen ENT v. State, 558 So. 2d 101 (Fla. 2d DCA 1990)