RANDALL SCOTT FORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ford appeals a denial of postconviction relief challenging the trial court's jurisdiction to revoke his probation for violations alleged after his probationary period expired. The Fourth District held that without an arrest warrant issued before probation expires, the court lacks jurisdiction to revoke probation, and reversed because no warrant was issued on the initial violation and the amended violation was filed after probation ended.
The trial court lacked jurisdiction to revoke probation on either violation. The court held that after a probationary term expires, a court has no jurisdiction to entertain a violation of probation for offenses occurring during the probation period unless the State issued an arrest warrant before expiration. Since no warrant was issued on the Okeechobee County violation and the amended VOP on Highlands County was filed after probation expired, the trial court lacked jurisdiction in both instances.
[1] A trial court lacks jurisdiction to revoke probation for a violation that occurred during the probationary period if an arrest warrant for the violation was not issued be…
[2] The filing of an affidavit of violation of probation, without the issuance of an arrest warrant, does not toll the probationary period.
Previewing 2 of 5 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“It is well settled that after a term of probation has expired, a court has no jurisdiction to entertain a VOP based on offenses occurring during the probation period unless the State issued an arrest warrant for the VOP before expiration.”
Establishes the controlling legal rule that an arrest warrant must be issued before probation expires to toll the probationary period.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFord was on probation when the State filed an affidavit of violation alleging a sexual battery in Okeechobee County a few weeks before his probationar…
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FARMER, J.
Defendant appeals a denial of postcon-viction relief, claiming that the trial court lacked jurisdiction to revoke probation and sentence him for a probation violation.1 A few weeks before his period of probation would have ended, the State filed an affidavit of violation of probation (VOP). The State alleged that he had committed a sexual battery in Okeechobee County. More than two months after the period of his probation had actually ended, the State filed an amended VOP adding an unrelated new count of committing sexual battery in Highlands County.
At a hearing several months after that, the State presented evidence supporting the VOP offense in Highlands County but failed to present any evidence on the first offense in Okeechobee County initially alleged during the probationary period. The court revoked probation on the Highlands County violation and sentenced him to 60 months in prison. He did not appeal the revocation.
Instead he filed the present motion under rule 3.850. He argues that the probationary period was not tolled and consequently the trial court lacked jurisdiction to revoke probation after the period expired. This issue may be raised for the first time in this postconviction proceeding because the lack of subject matter jurisdiction is fundamental error that can be raised at any time. Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981).
It is well settled that after a term of probation has expired, a court has no jurisdiction to entertain a VOP based on offenses occurring during the probation period unless the State issued an arrest warrant for the VOP before expiration. Stambaugh v. State, 891 So. 2d 1136, 1139 (Fla. 4th DCA 2005). Here no warrant was ever issued on the alleged Okeechobee County violation, and therefore defendant’s probationary period was not tolled.2 See Jean-Gilles v. State, 921 So. 2d 860 (Fla. 4th DCA 2006) (saying that § 948.06(l)(d) clearly requires both filing of affidavit and issuance of arrest warrant before probationary term expires); Stambaugh, 891 So. 2d at 1137 (holding that the filing of affidavit without issuing arrest warrant does not toll period and trial court lacked jurisdiction to hear VOP after probationary period had expired). Additionally, the probationary period expired before the State filed the amended VOP. The trial court also lacked jurisdiction to entertain the amended VOP on the Highland County charge.
The motion states a facially sufficient claim for relief under rule 3.850. We remand to the trial court for consistent proceedings.
Reversed.
SHAHOOD, C.J., and GROSS, J., concur. . Defendant filed two motions including 20 claims of error. The trial court considered the two motions together and summarily denied relief as to 19 claims, including the claim discussed here. The trial court granted a hearing as to the remaining issue and ultimately denied relief as to that claim as well.
. Defendant's probation was revoked before the 2007 amendment to § 948.06.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Collier v. State, 16 So. 3d 340 (Fla. 4th DCA 2009)…ial court had been previously divested of its jurisdiction over the appellant, we must reverse the order revoking appellant’s probation and remand this cause to the trial court for further proceedings consistent with this opinion. See Ford v. State, 994 So. 2d 1244 (Fla. 4th DCA 2008); Jean-Gilles v. State, 921 So. 2d 860 (Fla. 4th DCA 2006). [*342] In light of our holding, it is unnecessary for us to reach the other issues raised on appeal. Reversed and remanded. FARMER, CIKLIN, JJ. and LEBAN, MARK KING, As…
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Tatman v. State, 32 So. 3d 73 (Fla. 2d DCA 2009)…court’s order in all respects. Affirmed. SILBERMAN and VILLANTI, JJ., Concur. . This claim is cognizable in a rule 3.850 motion "because the lack of subject matter jurisdiction is fundamental error that can be raised at any time.” Ford v. State, 994 So. 2d 1244, 1245 (Fla. 4th DCA 2008).…
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Crum v. State, 197 So. 3d 86 (Fla. 2d DCA 2016)…successive. See Sepulveda v. State, 909 So. 2d 568, 571 (Fla. 2d DCA 2005) (noting that a claim of a trial court’s lack of jurisdiction to sentence a defendant for violation of probation was a cognizable claim in a rule 3.850 motion); Ford v. State, 994 So. 2d 1244, 1245 (Fla. 4th DCA 2008) (holding that issue of whether the trial court lacked jurisdiction to revoke probation may be raised for the first time in a postconviction motion); see also Wright v. State, 47 So. 3d 972, 973-74 (Fla. 4th DCA 2010) (rejec…
Authorities Cited
- Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981)
- LEE v. State, 891 So. 2d 1136 (Fla. 4th DCA 2005)
- Keels v. State, 891 So. 2d 1136 (Fla. 1st DCA 2005)
- Jean-Gilles v. State, 921 So. 2d 860 (Fla. 4th DCA 2006)