JAMES HARPER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Harper challenged the denial of his habeas corpus petition challenging his conviction for a probation violation based on an amended affidavit filed after his probation expired. The court affirmed the denial, holding that the amended Florida statute tolling the probationary period upon filing of a violation affidavit did not violate the ex post facto clause because Harper was placed on probation after the statute was enacted.
The ex post facto clause does not prohibit application of the amended statute to Harper because, although the underlying offense occurred before the statutory change, Harper was not placed on probation until well after the statute was amended. The relevant inquiry is whether the law is retrospective in effect and alters the elements of the crime or increases potential punishment.
[1] A habeas corpus petition is not procedurally barred if it raises an issue that may be raised at any time.
[2] A statutory amendment that tolls a probationary period upon the filing of an affidavit alleging a violation of probation confers continuing jurisdiction on the trial cour…
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Join FLexlaw to unlock all legal intelligence“habeas petition not procedurally barred because raises issue that may be raised at any time”
Establishes that even though the lower court denied the petition on procedural grounds, the appellate court found the procedural bar did not apply
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Join FLexlaw to unlock all legal intelligenceHarper was convicted of a probation violation based solely on violations alleged in an amended affidavit filed after his probationary term had expired…
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TORPY, J.
Appellant challenges the lower court’s order that summarily denied his petition for habeas corpus on procedural grounds. Although we do not agree that Appellant’s petition was procedurally barred, we nevertheless affirm because the petition is without merit. See Smith v. Moore, 782 So. 2d 955 (Fla. 1st DCA 2001) (habeas petition not procedurally barred because raises issue that may be raised at any time).
Appellant alleges that his conviction for a probation violation was improper be cause the conviction was solely based upon alleged violations that were the subject of an amended affidavit that was first filed after his term of probation had expired, contrary to the holding in State v. Hall, 641 So. 2d 403 (Fla.1994). Since that decision, however, section 948.06, Florida Statutes, has been amended to include a provision tolling the probationary period upon the filing of an affidavit alleging a violation of probation and expressly conferring continuing jurisdiction on the trial court to address “any violation ... that is alleged to have occurred during the tolling period.” Appellant acknowledges this statutory change but urges that it may not be applied to him because to do so violates the constitutional prohibition against ex post facto laws, citing Frye v. State, 885 So. 2d 419 (Fla. 1st DCA 2004). We disagree and distinguish Frye.
In Frye, the defendant had been placed on probation before the statute was changed. The court held that the statutory change could not be applied to him under the ex post facto clause. Id. at 420. Here, by contrast, although the underlying offense for which Appellant was placed on probation is alleged to have occurred before the statutory change, Appellant was not placed on probation until well after the statutory change. Under these circumstances, the ex post facto clause is clearly not implicated. See Gwong v. Singletary, 683 So. 2d 109 (Fla.1996) (test for statutory scrutiny under the ex post facto clause is whether the law is retrospective in effect and whether it alters the elements of the crime or increases the potential punishment).
AFFIRMED.
GRIFFIN and SAWAYA, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Badger v. State, 23 So. 3d 813 (Fla. 2d DCA 2009)…3d DCA 2008) (declining to apply 2001 tolling provision where offense was committed in December 1998); Frye v. State, 885 So. 2d 419 (Fla. 1st DCA 2004) (prohibiting retroactive application as measured by date of offense); see also Harper v. State, 955 So. 2d 617 (Fla. 5th DCA 2007) (permitting application of tolling provisions where order of probation was entered after the effective date of the statute). To the extent that our decision conflicts with the Fourth District’s decision in Shenfeld v. State, 14 S…
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Wilson v. State, 964 So. 2d 280 (Fla. 5th DCA 2007)…PER CURIAM. AFFIRMED. See Harper v. State, 955 So. 2d 617 (Fla. 5th DCA 2007); Russell v. State, 676 So. 2d 1026 (Fla. 3d DCA 1996). PALMER, C.J., GRIFFIN and THOMPSON, JJ., concur.…
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Guevara v. State, 983 So. 2d 738 (Fla. 3d DCA 2008)…iction to revoke his probation. The trial court denied the motion. Guevara committed his crime on December 4, 1998, and he was placed on probation on January 14, 1999. Therefore, the 1998 probation statute applies to his case.2 See Harper v. State, 955 So. 2d 617, 618 (Fla. 5th DCA 2007); Frye v. State, 885 So. 2d 419, 420 (Fla. 1st DCA 2004). The trial court ultimately acquitted Guevara of the technical violations listed in the only affidavit of probation violation filed during the one-year term of Guevara’…
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
- Gwong v. Singletary, 683 So. 2d 109 (Fla. 1996)
- State v. Hall, 641 So. 2d 403 (Fla. 1994)
- Damien Frye v. State, 885 So. 2d 419 (Fla. 1st DCA 2004)
- Thenious Smith v. Moore, 782 So. 2d 955 (Fla. 1st DCA 2001)