GLENN DAVIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Glenn Davis appealed the revocation of his probation, arguing the trial court lacked jurisdiction because the state filed a violation affidavit after his probationary period expired. The court agreed, holding that a court loses jurisdiction over a probationer when the probationary period expires unless appropriate revocation steps are taken beforehand.
No. The court held that when a probationary period expires, the court is divested of jurisdiction over the probationer unless appropriate revocation steps were taken prior to expiration. Although a timely affidavit followed by an untimely re-averment of the same allegations may support revocation, probation cannot be revoked based on new allegations contained only in an untimely affidavit.
[1] A trial court is divested of all jurisdiction over a probationer upon the expiration of the probationary period.
[2] The filing of a separate information for an offense committed during probation does not substitute for affirmative action to revoke probation during its term.
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Join FLexlaw to unlock all legal intelligence“When a probationary period expires, the court is divested of jurisdiction over the probationer unless, prior to that time, the appropriate steps were taken to revoke or modify the probation.”
Establishes the core jurisdictional principle governing probation revocation timing.
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Join FLexlaw to unlock all legal intelligenceDavis's probation was extended for one year (ending February 20, 1993) after he admitted violations alleged in a timely affidavit filed July 28, 1991.…
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PER CURIAM.
Glenn Davis appeals an order revoking his probation. He contends that the trial court lacked jurisdiction to entertain the state’s affidavit of violation of probation and to revoke probation because the affidavit was filed after the expiration of the probationary-period. We agree.
When a probationary period expires, the court is divested of jurisdiction over the probationer unless, prior to that time, the appropriate steps were taken to revoke or modify the probation. Aguiar v. State, 593 So. 2d 1225 (Fla. 3d DCA 1992); Purvis v. Lindsey, 587 So. 2d 638, 639 (Fla. 4th DCÁ 1991). If an affidavit of violation is timely filed, and is succeeded by an untimely affidavit which merely re-avers the allegations contained in the former, the re-averred allegations may support revocation; however, probation may not be revoked on the basis of any new allegations contained only in the untimely affidavit. Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981); see also Jess v. State, 384 So. 2d 328 (Fla. 3d DCA 1980) and Kane v. State, 473 So. 2d 786 (Fla. 1st DCA 1985).
Here, an original affidavit of violation of probation (affidavit I) was timely filed on July 28, 1991. It alleged, inter alia, Davis’s failure to file a written monthly report in April 1991 and to obtain his supervisor’s consent to change his residence on May 9, 1991. Based on Davis’s admission of these allegations, at a hearing on August 7, 1991, the trial court extended Davis’s probation for one year, ending February 20, 1993. On December 14, 1992, the state, unaware of the prior hearing on August 7, filed an amended affidavit of violation (affidavit II) alleging the same violations as in affidavit I. Six weeks after the expiration of the extended probationary period, the state filed a second amended affidavit of violation (affidavit III) on April 1, 1993, this time alleging two new counts: 1) Davis’s failure to file any monthly reports after August 7, 1991, and 2) his failure to obtain consent for an undated change of residence or otherwise notify his supervisor of his whereabouts. At a hearing on the matter, the trial court found Davis guilty of probation violation, revoked his probation, and sentenced him to three and one-half years in prison.
Because the trial court was without jurisdiction to consider the allegations of the third affidavit and Davis’s probation had already been extended for his violation of the first affidavit, and the second affidavit was dupli-cative of the first, no new basis for additional court action remained.
Accordingly, we reverse the revocation of probation appealed herein.
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Manrique Estevez v. State, 705 So. 2d 972 (Fla. 3d DCA 1998)…m. Then, after expiration, the State amended the affidavit to add a new charge which did not relate back to the charges previously filed. Since the new charge was untimely, it could not be used as a basis for violating probation. See Davis v. State, 623 So. 2d 579, 580 (Fla. 3d DCA 1993). Had argument been allowed, defense counsel [*973] would have explained this and the trial court would have stricken the untimely charge. Second, defendant had the right to argue for leniency in sentencing. Here the trial co…
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Sepulveda v. State, 909 So. 2d 568 (Fla. 2d DCA 2005)…f the probation at issue or if the allegations in an affidavit filed after the expiration of the probationary period have also been alleged in an earlier affidavit timely filed before [*571] the expiration of the probationary period. Davis v. State, 623 So. 2d 579, 580 (Fla. 3d DCA 1993); Futch v. State, 605 So. 2d 954, 955 (Fla. 4th DCA 1992); McPherson v. State, 530 So. 2d 1095, 1098 (Fla. 1st DCA 1988); Clark v. State, 402 So. 2d 43, 44-45 (Fla. 4th DCA 1981). However, a timely affidavit of violation canno…
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Jett v. State, 722 So. 2d 211 (Fla. 1st DCA 1998)…4 (Fla.1994). See Boyd v. State, 699 So. 2d 295 (Fla. 1st DCA 1997); Izquierdo v. State, 693 So. 2d 1156 (Fla. 3d DCA 1997); Jones v. State, 688 So. 2d 451 (Fla. 5th DCA 1997); Delaughter v. State, 664 So. 2d 1156 (Fla. 2d DCA 1995); Davis v. State, 623 So. 2d 579 (Fla. 3d DCA 1993); Aguiar v. State, 593 So. 2d 1225 (Fla. 3d DCA 1992). In originally pronouncing sentence in Case No. 91-774 (among others) on September 19, 1991, the Honorable N. Russell Bower imposed concurrent prison terms to be followed by pr…
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
- Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981)
- Bennie Jess, Jr. v. State, 384 So. 2d 328 (Fla. 3d DCA 1980)
- Purvis v. The Honorable Hubert R. Lindsey, 587 So. 2d 638 (Fla. 4th DCA 1991)
- Kane v. State, 473 So. 2d 786 (Fla. 1st DCA 1985)
- Aguiar v. State, 593 So. 2d 1225 (Fla. 3d DCA 1992)
- Harrel F. Braddy v. State, 593 So. 2d 1225 (Fla. 4th DCA 1992)