FRANKLIN AMAYA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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This case involves a defendant who violated probation multiple times. The appellate court found that the trial court lost jurisdiction to sentence on one charge because probation had already terminated and that the trial court erred in imposing a harsher sentence than agreed upon due to a minor delay in surrender.
No, the trial court lost jurisdiction to revoke probation and sentence the defendant on the first charge because probation had terminated before the violation affidavit was filed. Yes, the trial court erred in imposing a harsher sentence than agreed upon due to a minor delay in the defendant's surrender.
[1] A trial court loses jurisdiction to revoke probation if the probation period has terminated before an affidavit of violation is filed.
[2] A de minimis deviation from a surrender time does not warrant additional punishment when the defendant otherwise complies with the terms of a plea agreement.
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Join FLexlaw to unlock all legal intelligence“Upon examination of the record and the state’s confession of error, we agree with Amaya’s argument that because probation in case 91-38527 terminated on November 25, 1993, the trial court lost jurisdiction to revoke, adjudicate, and sentence in that case on the basis of an affidavit of violation of probation filed February 11, 1994, which alleged offenses occurring January 22, 1994.”
Establishes the reasoning for reversing the sentence in one of the cases due to loss of jurisdiction.
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Join FLexlaw to unlock all legal intelligenceFranklin Amaya pled nolo contendere to burglary and grand theft charges and was placed on probation with restitution. He subsequently violated probati…
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On Motion for Clarification and Rehearing
PER CURIAM.
Appellee moves for clarification and rehearing. We deny the motion for rehearing but grant the motion for clarification. Accordingly, we withdraw our opinion of March 1, 1995 and replace it with the following:
On November 20, 1991, the State filed a one-count information charging Franklin Amaya with burglary of an unoccupied dwelling in case 91-38527A. On February 10, 1992, the state filed a two-count information charging Amaya with burglary of an unoccupied dwelling and grand theft in case 92-3870. Amaya pled nolo contendere to both cases. The trial court entered orders finding guilt and withholding adjudication and placing Amaya on probation. As a special condition of probation in case 92-3870, Amaya was also ordered to pay restitution in the amount of $2,600.
On January 12, 1993, Amaya’s probation officer filed an affidavit for ease 91-38527A, alleging that Amaya had failed to pay his supervision costs. On the same day, the probation officer also filed an affidavit for case 92-3870, claiming that Amaya had violated probation by failing to pay supervision costs and failing to make restitution. After hearing, where Amaya claimed that, he was unable to legally work due to his residency status, the trial court waived the arrearage and extended Amaya’s probation for six months in both eases with early termination upon Amaya’s payment of the restitution due. The probation was to have ended on November 25, 1993.
Several days before that date, Amaya’s probation officer again filed an affidavit of violation of probation in case 92-3870, alleging the restitution had yet to be paid. At the hearing held thereafter, the trial court dismissed the affidavit of violation and extended probation for one year with early termination upon payment of restitution, with Amaya’s termination of probation date extended to December 13, 1994. On February 7, 1994, the state filed a two-count information charging Amaya with possession of cocaine, and obstructing justice, in case 94-2351. Ama-ya’s probation officer then filed another affidavit of probation violation on February 9, 1994 for cases 91-38527A and 92-3870, alleging that Amaya violated his probation by committing the offenses as alleged in the information in case 94-2351.
On May 12, 1994, another hearing was held. At this hearing, in exchange for a plea, the state offered Amaya 364 days of jail, completion of the TASC program and a criminal order of restitution. Amaya accepted the state’s offer. The trial judge granted Amaya a requested furlough; the judge also agreed to sentence Amaya to four and one-half years with the understanding that he would mitigate his sentence to the above-stated terms if Amaya surrendered at 9:00 a.m. on May 23,1994. Amaya then admitted violating probation in cases 91-38527A and 92-3870, and pled nolo contendere in cases 91-38527A, 92-3870, and 94-2351. On the morning of May 23, 1994, Amaya was not present at the appointed 9 a.m. time of surrender. When Amaya appeared at 3:30 p.m. that afternoon, saying he had been at a clinic with his child, the trial judge refused to mitigate Amaya’s 4½ year sentence.
Upon examination of the record and the state’s confession of error, we agree with Amaya’s argument that because probation in case 91-38527 terminated on November 25, 1993, the trial court lost jurisdiction to revoke, adjudicate, and sentence in that case on the basis of an affidavit of violation of probation filed February 11, 1994, which alleged offenses occurring January 22, 1994.
Further, we conclude that the trial court erred in imposing what amounted to an additional three and one-half year sentence where Amaya arrived some hours late on the day of his surrender. In the instant case those few hours were a de minimis deviation. Under the circumstances, the start of serving his sentence several hours after the 9:00 a.m. report time did not warrant the additional punishment. See, e.g., State v. Perez, 587 So. 2d 630 (Fla. 3d DCA 1991).
Accordingly, the revocation, adjudication and sentence in case no. 91-38527 are set aside and that case remanded with directions to enter a termination of probation. The sentences in cases 92-3870 and 94-2351 are reversed and the cause remanded with directions to impose the bargained-for concurrent sentences of 364 days incarceration with TASC, with credit for time served.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Searcy v. State, 971 So. 2d 1008 (Fla. 3d DCA 2008)…2003) (finding violation de minimis where the defendant overslept and appeared six hours late); Eulo v. State, 786 So. 2d 43 (Fla. 4th DCA 2001) (finding violation de minimis and involuntary where defendant was fifteen minutes late); Amaya v. State, 653 So. 2d 1112 (Fla. 3d DCA 1995) (finding delay de minimis where defendant reported six-and-one-half [*1013] hours late due to child’s hospitalization); Johnson v. State, 501 So. 2d 158 (Fla. 3d DCA 1987) (finding defendant’s non-appearance involuntary where he h…
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Eulo v. State, 786 So. 2d 43 (Fla. 4th DCA 2001)…fter the court sentenced appellant, it agreed to mitigate it if appellant fulfilled the condition of her furlough. She did not. While this result may seem unduly harsh, it is not a sentencing error. This case is distinguishable from Amaya v. State, 653 So. 2d 1112 (Fla. 3d DCA 1995), because as I read that opinion, Amaya was not sentenced until he came back from furlough. Moreover, there is nothing in that opinion which indicates that Amaya specifically agreed to the exact time of his surrender. Additional pu…1 / 2
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Navedo v. State, 847 So. 2d 585 (Fla. 3d DCA 2003)…COPE, J., specially concurring. If we were writing on a clean slate, I would affirm the trial court ruling. In Amaya v. State, 653 So. 2d 1112 (Fla. 3d DCA 1995), however, this court held that a voluntary surrender at 3:30 p.m. (when the defendant was supposed to have surrendered at 9:00 a.m.) was a de minimis deviation, and that the defendant was entitled to have his sentence mitigated in…1 / 2
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Perez, 587 So. 2d 630 (Fla. 3d DCA 1991)