ROBERT DANIEL CUBERO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2011-07-27
No. 2D10-2950
DAVIS and VILLANTI, JJ„ Concur.
65 So. 3d 642 Florida District Court of Appeal, Second District (2011) Positive Treatment
Cited by 1 case

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Synopsis

Robert Daniel Cubero appealed the revocation of his probation on both a felony heroin possession charge and a misdemeanor drug paraphernalia charge. The court held that the trial court lacked jurisdiction to revoke probation on the misdemeanor count because the twelve-month probation term had expired before the violation affidavit was filed, and tolling periods do not automatically extend the probation term.


Holding

The trial court lacked jurisdiction to revoke Cubero's probation on the misdemeanor count because the twelve-month probation term had expired before the third affidavit was filed in May 2010. Tolling periods between the filing of violation affidavits and the trial court's rulings do not automatically operate to extend the probation term past the originally imposed twelve-month period.


Headnotes

[1] A trial court lacks jurisdiction to revoke probation on a misdemeanor count if the probation term has expired before the affidavit of violation is filed.

[2] Tolling periods that occur between the filing of an affidavit of violation and a ruling on that affidavit do not automatically extend a misdemeanor probation term beyond…

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Key Quotes

“Because the twelve-month probation term on the misdemeanor count had expired before the third affidavit of violation was filed in May 2010, the trial court lacked jurisdiction to revoke Cubero's probation on the misdemeanor count.”

Establishes the core holding that expiration of the probation term divests the trial court of jurisdiction to revoke probation.

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Facts & Procedural History

Cubero was placed on three years' probation for heroin possession and twelve months' probation for drug paraphernalia possession on March 18, 2009. Du…

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Opinion of the Court
MORRIS, Judge.

MORRIS, Judge.

Robert Daniel Cubero appeals the revocation of his probation for possession of heroin, a third-degree felony, and possession of drug paraphernalia, a first-degree misdemeanor, and the resulting judgments and sentences. On appeal, Cubero contends that the trial court lacked jurisdiction to revoke his probation on the misdemeanor count because his twelve-month probation term on that count had expired in March 2010, two months before the relevant affidavit of violation was filed in May 2010. We agree.

On March 18, 2009, Cubero was placed on three years’ probation for the heroin count and on twelve months’ probation for the paraphernalia count. During the next twelve-month period, two affidavits of violation were filed and the trial court twice modified — but never extended — Cubero’s probation. The second modification order was entered on March 25, 2010, thus ending the tolling period invoked by the filing of the second affidavit of violation. See § 948.06(l)(d), Fla. Stat. (2009). This second modification order also ended Cube-ro’s twelve-month misdemeanor probation term. But in May 2010, a third affidavit of violation was filed, and the trial court revoked Cubero’s probation on both counts *643in June 2010. Cubero was sentenced to three years in prison on the felony count and to time-served on the misdemeanor count.

Because the twelve-month probation term on the misdemeanor count had expired before the third affidavit of violation was filed in May 2010, the trial court lacked jurisdiction to revoke Cubero’s probation on the misdemeanor count. See Gonzalez-Ramos v. State, 46 So.3d 67, 69 (Fla. 5th DCA 2010). Even though the trial court could have extended Cubero’s misdemeanor probation each of the two times it modified his probation, the trial court did not do so.1 And the tolling periods that occurred between the filing of each of the first two affidavits and the trial court’s rulings on each of those affidavits did not automatically operate to extend Cubero’s misdemeanor probation term past the originally imposed twelve-month term. See id. (rejecting State’s argument that “each and every violation period (the time between the issuance of the warrant and adjudication of the violation allegations) prior to the expiration date of the probation term should be applied to the end of the originally imposed term to automatically extend the term by the total of the violation periods when each violation resulted in a continuation of the original term of probation”).

Accordingly, we remand for the trial court to strike the portion of the revocation order revoking the probation on the misdemeanor count and to strike the misdemeanor count and sentence of time-served from the judgment and sentence. We affirm the revocation order and judgment and sentence as they relate to the felony count.

Affirmed in part; remanded in part.

DAVIS and VILLANTI, JJ„ Concur.


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  • Medina v. State (Fla. 2d DCA 2021)
    …ust of 2017, and because she was serving an illegal portion of the term of community control when the VOCC affidavit was filed, the trial court should have dismissed the affidavit for lack of jurisdiction. She relies primarily upon Cubero v. State, 65 So. 3d 642 (Fla. 2d DCA 2011), to support her position. The State acknowledges that the statutory maximum for Medina's offense is five years and that her supervisory term would have expired on August 12, 2017, but contends the term was properly extended past…

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