MICHAEL TATUM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Tatum appealed his probation revocation, contending the trial court lacked jurisdiction because the revocation process was not commenced until after his probationary term expired. The court agreed and reversed, holding that delivery of an arrest warrant to the sheriff—not filing of an affidavit—is the determinative event for commencing a probation revocation proceeding.
The trial court lacked jurisdiction to revoke Tatum's probation. Delivery of the arrest warrant to the sheriff for execution—not the filing of an affidavit—is the necessary condition precedent and determinative event for commencing a probation revocation proceeding.
[1] A probation revocation proceeding is not commenced until the arrest warrant is delivered to the sheriff for execution, even if an affidavit alleging a violation is filed…
[2] Failure to commence a probation revocation proceeding before the expiration of the probationary term is a jurisdictional defect.
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“when the affidavit alleging a violation of probation or community control is filed is legally irrelevant; the determinative event for purposes of commencing the revocation process is delivery of the arrest warrant to the sheriff for execution.”
Establishes the legal standard for what constitutes timely commencement of a probation revocation proceeding.
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Join FLexlaw to unlock all legal intelligenceTatum was on probation and faced allegations of violating the terms of his probation. An affidavit alleging the violation was filed before Tatum's pro…
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WEBSTER, J.
In this direct criminal appeal, appellant contends that the trial court lacked jurisdiction to revoke his probation and to sentence him to ten months in the county jail because the probation revocation process was not commenced until after his probationary term had expired. We agree and, accordingly, reverse.
In Boyd v. State, 699 So. 2d 295, 298 (Fla. 1st DCA 1997), this court certified to the supreme court as a question of great public importance the following:
WHEN AN ARREST WARRANT IS SIGNED BY A JUDGE BASED UPON AN AFFIDAVIT ALLEGING A VIOLATION OF PROBATION OR COMMUNITY CONTROL, IS DELIVERY OF THE WARRANT TO THE APPROPRIATE COUNTY SHERIFF FOR EXECUTION A NECESSARY CONDITION PRECEDENT TO COMMENCEMENT OF THE REVOCATION PROCEEDING FOR THE PURPOSE OF DETERMINING WHETHER THE PROCEEDING HAS BEEN COMMENCED BEFORE THE EXPIRATION OF THE TERM OF PROBATION OR COMMUNITY CONTROL?
That question was answered in the affirmative by a unanimous supreme court. State v. Boyd, 717 So. 2d 524 (Fla.1998).
In this case, the state concedes that the arrest warrant was not delivered to the sheriff until after appellant's probationary term had expired. Notwithstanding that fact, the state argues that the trial court had jurisdiction because an affidavit alleging that appellant had violated his probation was filed before the end of appellant’s probationary term. As the supreme court’s answer to the question posed by this court in Boyd clearly establishes, when the affidavit alleging a violation of probation or community control is filed is legally irrelevant; the determinative event for purposes of commencing the revocation process is delivery of the arrest warrant to the sheriff for execution. Accordingly, the state’s argument is without merit.
The revocation process was not timely commenced in this case. This is a jurisdictional defect. Boyd, 717 So. 2d at 526. Therefore, it may be raised for the first time on appeal. E.g., Polk County v. Sofka, 702 So. 2d 1243 (Fla.1997); 84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994). Accordingly, we reverse, and remand with directions that the order revoking probation and the judgment and sentence entered subsequent thereto be vacated; that the affidavits alleging a violation of probation be dismissed; and that appellant be discharged.
REVERSED and REMANDED, with directions.
MINER and LAWRENCE, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Elvin Otis Morgan v. State, 757 So. 2d 618 (Fla. 2d DCA 2000)…McNeal v. State, 741 So. 2d 1205 (Fla. 1st DCA 1999). We note that because the trial court lacked subject matter jurisdiction, see Hoffman v. State, 729 So. 2d 421 (Fla. 1st DCA 1999), Morgan could raise this defect at any time. See Tatum v. State, 736 So. 2d 1214 (Fla. 1st DCA 1999); C.W. v. State, 637 So. 2d 28 (Fla. 2d DCA 1994). The trial court had no jurisdiction to impose Morgan’s new terms of community control and probation- on February 17, 1998. Consequently, we must vacate the prison sentence that M…
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Crain v. State, 914 So. 2d 1015 (Fla. 5th DCA 2005)…the affidavit of violation of probation must be delivered for execution before the probationary period expires — even when the affidavit of violation of probation itself is filed within the probationary period.”) (citations omitted); Tatum v. State, 736 So. 2d 1214, 1215 (Fla. 1st DCA 1999) (“As the supreme court’s answer to the question posed by this court in Boyd clearly establishes, when the affidavit alleging a violation of probation or community control is filed is legally irrelevant; the determinative ev…
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Solomon N. Fisher v. State, 859 So. 2d 558 (Fla. 1st DCA 2003)…nt never received probation); Otero v. State, 793 So. 2d 1115, 1115 (Fla. 4th DCA 2001) (holding that the trial court did not have jurisdiction to revoke defendant’s probation absent evidence that probation was part of his sentence); Tatum v. State, 736 So. 2d 1214, 1214 (Fla. 1st DCA 1999) (holding that the trial court lacked jurisdiction to revoke probation after probationary period had expired). Accordingly, we REVERSE and REMAND with directions for the trial court [*560] to vacate the order modifying Fis…
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
- Polk Cnty. v. Sofka, 702 So. 2d 1243 (Fla. 1997)
- 84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994)
- Shiver v. State, 717 So. 2d 524 (Fla. 1998)
- Boyd v. State, 699 So. 2d 295 (Fla. 1st DCA 1997)