TIMOTHY MCAVOY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court reversed the revocation of probation for resisting an officer without violence because the trial court lacked jurisdiction. The violation of probation occurred after the probationary term had expired and no steps were taken to revoke it during the term.
No, the trial court lacked jurisdiction to revoke McAvoy's probation because the probationary term had expired before any steps were taken to revoke it.
[1] A trial court lacks jurisdiction to entertain a violation of probation after the probationary term has expired, unless appropriate steps to revoke or modify probation wer…
[2] The expiration of a probationary period divests the court of jurisdiction over the probationer, absent timely action to revoke or modify probation.
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Join FLexlaw to unlock all legal intelligence“[Ojnce a term of probation has expired, a’ court lacks jurisdiction to entertain an application for revocation of probation based upon a violation which occurred during the probation period unless, during the term of probation, appropriate steps were taken to revoke or modify probation.”
Establishes the legal principle that a court loses jurisdiction to revoke probation after its expiration if no action was taken during the term.
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Join FLexlaw to unlock all legal intelligenceTimothy McAvoy was placed on a one-year probation for resisting an officer without violence, which ended on January 8, 1999. Thirteen days later, on J…
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PER CURIAM.
Appellant, Timothy McAvoy, appeals the revocation of his probation and sentence for resisting an officer without violence. We reverse because, as the state concedes, the trial court lacked jurisdiction to entertain the violation of probation.
Appellant, pled guilty to aggravated assault with a deadly weapon and resisting an officer without, violence. The trial court withheld adjudication and placed appellant on probation for two years on the assault charge, and • one year on the. resisting charge. Appellant’s one-year probationary term ended on January 8,1999.
On January 20, 1999, thirteen days after the one-year probationary term ended, appellant’s probation officer filed an affidavit of violation of probation. The arrest warrant was delivered to the sheriffs department the following day. After a. hearing on the violation of probation affidavit, the trial court revoked appellant’s probation and sentenced him to one year and one day in state prison on the aggravated assault and to twenty-four days in the county jail on the resisting charge, with credit for twenty-four days time served.
As we stated in McGraw v. State, 700 So. 2d 183, 184 (Fla. 4th DCA 1997):
[Ojnce a term of probation has expired, a’ court lacks jurisdiction to entertain an application for revocation of probation based upon a violation which occurred during the probation period unless, during the term of probation, appropriate steps were taken to revoke or modify probation.
Id. (citing Clark v. State, 402 So. 2d 43, 44 (Fla. 4th DCA 1981)). See Francois v. State, 695 So. 2d 695, 697 (Fla.1997)(“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 probation”).
Accordingly, we reverse the revocation and sentence as to the resisting arrest without violence charge.1
REVERSED and REMANDED.
FARMER, GROSS and TAYLOR, JJ., concur. . The two-year probation for the aggravated assault, count I, was properly revoked and was not challenged by appellant.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Wilson v. State, 895 So. 2d 527 (Fla. 4th DCA 2005)…ilson was not placed on probation in this case during the original sentencing proceeding. Therefore, the trial court did not have jurisdiction over case number 98-1190 when the sentence of two years of community control had run. See McAvoy v. State, 760 So. 2d 1120 (Fla. 4th DCA 2000); see also J.D. v. State, 849 So. 2d 458 (Fla. 4th DCA 2003) (“Although this issue was not raised at the initial ... hearing below, a lack of jurisdiction constitutes fundamental error from which this court may grant relief even w…
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Monroe v. State, 833 So. 2d 246 (Fla. 4th DCA 2002)…e expiration of her probationary period. It is well settled that upon the expiration of the probationary period the court no longer has jurisdiction over the defendant. See Francois v. State, 695 So. 2d 695, 697 (Fla.1997); accord McAvoy v. State, 760 So. 2d 1120, 1120 (Fla. 4th DCA 2000). As the state concedes, the court lacked jurisdiction to entertain a violation of her community control as to count II [*247] where her community control on that count had expired in 1993. Accordingly, we hold appellant’s c…
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Coty Johnson v. State, 17 So. 3d 915 (Fla. 4th DCA 2009)…This was improper because Johnson’s one-year probation term had expired for both counts of resisting without violence before the probation affidavit and warrant were filed, and the court lacked jurisdiction over those offenses. See McAvoy v. State, 760 So. 2d 1120 (Fla. 4th DCA 2000). The state concedes that the trial court lacked jurisdiction over the misdemeanor. Additionally, he had already served the maximum sentence allowed for the offense of resisting without violence, which is one year. §§ 843.02, 775.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Francois v. State, 695 So. 2d 695 (Fla. 1997)
- Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981)
- McGRAW v. State, 700 So. 2d 183 (Fla. 4th DCA 1997)