MILTON MOBLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a probation period is tolled only if an arrest warrant is issued under section 901.02 for a crime, and since the warrants here were for probation violations not classified as crimes, the probation was not tolled and expired before revocation.
[1] A court lacks jurisdiction to revoke probation for violations that occurred after the probation period has expired, unless appropriate steps were taken to revoke or modif…
[2] A probationary period is tolled upon the filing of an affidavit alleging a violation and the issuance of a warrant under section 901.02, Florida Statutes, or a warrantles…
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Join FLexlaw to unlock all legal intelligenceAppellant was placed on probation which was set to expire on September 7, 2012. Affidavits alleging probation violations were filed, and warrants were…
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Appellant Milton Mobley raises a number of issues with the trial court’s revocation of his probation and imposition of a nearly twenty-eight-year sentence. Because we agree that Appellant’s probation had in fact expired before the trial court revoked it, we reverse.1
Background
Appellant pled no contest to various charges stemming from two cases and, on ' March 7, 2011, was placed on eighteen months’ probation. That probation was therefore set to expire on Septembér 7, 2012.
On August 9, 2012, a probation officer filed affidavits in both cases alleging that Appellant violated his probation by failing to make both restitution payments and a drug testing fee payment. The very same day, the trial court issued warrants to arrest Appellant based on those affidavits.
On September 27, 2012 — twenty days after his probation was scheduled to expire — Appellant had his probation extended by two years for the violations in the affidavits. Shortly after this extension, Appellant led police on a high-speed motorcycle chase and was again charged with violation of probation for various reasons including the chase.
After a hearing on Appellant’s violation of probation relating to the chase, the trial court found that Appellant violated his probation and sentenced him to 332.95 months in prison based on his original offenses from March of 2011.
On appeal, Appellant argues that his probation expired on September 7, 2012 and, therefore, that its subsequent extension and later revocation must be réversed because the trial court lacked subject matter jurisdiction.
*574Analysis
“Whether a court has subject matter jurisdiction is a question of law reviewed de novo.” Sanchez v. Fernandez, 915 So.2d 192, 192 (Fla. 4th DCA 2005). “It is axiomatic that ‘[o]nce a term of probation has expired, a court lacks jurisdiction to entertain an application for revocation of probation based on a violation which occurred during the probation period unless, during the term of probation, appropriate steps were taken to revoke or modify probation.’ ” Shenfeld v. State, 14 So.3d 1021, 1023 (Fla. 4th DCA 2009) (alteration in original) (quoting Clark v. State, 402 So.2d 43, 44 (Fla. 4th DCA 1981)). The State argues that, in this case, the tolling provisions of section 948.06(l)(f), Florida Statutes (2012), were effectuated and, therefore, the exception described in Shenfeld is applicable to this case.
A probationer’s probation period is tolled when certain criteria are met. “Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s. 901.02, a warrantless arrest under this section, or a notice to appear under this section, the probationary period is tolled until the court enters a ruling on the violation.” § 948.06(l)(f), Fla. Stat. In a situation where there is no warrantless arrest or notice to appear, as is true in this case, “[b]oth the filing of an affidavit of violation and the issuance of an arrest warrant are required to toll the probationary period.” Sepulveda v. State, 909 So.2d 568, 570 (Fla. 2d DCA 2005).
The statute is very specific on the warrant required: “a warrant under s.901.02.” § 948.06(l)(f) (emphasis added). The warrants issued on August 9 in this case do not reference the statute under which they were based. We therefore must determine whether they were issued under section 901.02.
Section 901.02 requires that a judge be “satisfied that probable cause exists for the issuance of an arrest warrant for any crime committed .... ” § 901.02 (emphasis added). The State does not argue that the violations of probation that were alleged in the affidavit (failure to make various payments) were “crimes.” Instead, the State argues that Appellant’s original offenses which led him to be placed on probation in the first place constituted the crimes necessary to bring the warrant under section 901.02. The State’s argument here is unpersuasive. The warrants clearly list Appellant’s previous crimes only in a descriptive manner, and order that the Sheriffs of Florida arrest Appellant only for the alleged failure-to-pay violations. Those violations, as already noted, were not “crimes.”
Section 948.06(l)(f) is clear that a warrant under section 901.02 is required in order for the probationary period to be tolled (except when one of the other two alternatives are applicable, as is not the case here). Section 901.02 in turn requires that the warrant be for a “crime.” Here, the warrants issued were for violations of probation based on the failure to make restitution payments and a payment for drug testing. These are not “crimes.” The warrants were therefore not issued under section 901.02, and Appellant’s probation was never tolled.
Conclusion
Appellant’s probation ended on September 7, 2012 — twenty days before its purported extension. Without that extension, Appellant was not on probation when his probation was eventually purportedly revoked and his incarceration sentence imposed. We therefore reverse and remand *575for the proceedings against Appellant to be dismissed.2
Reversed.
STEVENSON and GROSS, JJ, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (21 total)
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Williams v. State, 202 So. 3d 917 (Fla. 4th DCA 2016)…writ of prohibition following the circuit court’s order denying his motion-to dismiss various violation of probation (VOP). warrants. He argues that the court lacked subject matter jurisdiction over the warrants because, pursuant to Mobley v. State, 197 So. 3d 572 (Fla. 4th DCA 2016), the warrants alleged non-criminal VOPs, and he was not arrested on the warrants until after his probation term expired. We conclude that the defendant’s argument lacks merit. Here, unlike Mobley, the VOPs ultimately alleged that…
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Canchola v. State, 255 So. 3d 442 (Fla. 2d DCA 2018)…arrest warrant issued by the trial court on August 13, 2015. Canchola thereafter filed a motion to dismiss violation of probation for lack of subject matter jurisdiction, relying on section 948.06(1)(f), Florida Statutes (2015), and Mobley v. State, 197 So. 3d 572 (Fla. 4th DCA 2016). At the hearing on Canchola's motion to dismiss, Canchola argued that the filing of the August VOP affidavit did not toll his probationary term because it failed to comply with the tolling requirements set forth in section 948.0…
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State v. Hicks, 214 So. 3d 701 (Fla. 4th DCA 2017)…State, 890 So. 2d 495, 496 (Fla. 5th DCA 2004); Williams v. State, 529 So. 2d 366, 367 (Fla. 2d DCA 1988); Ware v. State, 474 So. 2d 332, 334 (Fla. 1st DCA 1985)). Our Williams opinion clarified that this Court’s earlier opinion in Mobley v. State, 197 So. 3d 572 (Fla. 4th DCA 2016) “does not overrule the case law recognizing that when a probationer absconds from supervision, the probationary period is tolled until the probationer is once more placed under probationary supervision.” Williams, 202 So. 3d at 9…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sanchez v. Fernandez, 915 So. 2d 192 (Fla. 4th DCA 2005)
- Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981)
- Shenfeld v. State, 14 So. 3d 1021 (Fla. 4th DCA 2009)
- Thomas v. State, 909 So. 2d 568 (Fla. 4th DCA 2005)
- Sepulveda v. State, 909 So. 2d 568 (Fla. 2d DCA 2005)