TIMOTHY K. WRICH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Wrich appealed the revocation of his probation on the grounds that the state filed a violation affidavit nearly a year after his original probation term expired. The court agreed that the state lacked jurisdiction to revoke probation and reversed the conviction.
The trial court lacked jurisdiction to revoke probation because the violation affidavit must be filed before the expiration of the probation term, and filing it on September 27, 1976—nearly a year after the October 9, 1975 expiration—was fatally untimely.
[1] An affidavit alleging a violation of probation must be filed before the expiration of the probation term.
[2] A trial court lacks jurisdiction to revoke probation if the violation affidavit is filed after the probation term has expired.
Previewing 2 of 4 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“an affidavit alleging a violation of probation must be filed before the expiration of the probation”
Establishes the controlling legal rule that requires timely filing of violation affidavits during the probation term.
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Join FLexlaw to unlock all legal intelligenceWrich was placed on probation on October 9, 1972, after pleading guilty to burglary. A probation violation affidavit was filed on February 25, 1975, a…
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PER CURIAM.
Appellant Timothy K. Wrich was placed on probation on October 9, 1972, after having entered a plea of guilty to a charge of burglary. On February 25,1975, his probation supervisor filed an affidavit charging him with violations of conditions (d), (e) and (h) of his probation. Two days later a hearing was held on these violations, and at that hearing the trial court found that appellant had not violated conditions (d), (e) and (h). He did, however, find that appellant was guilty of a violation of another condition, condition (c); whereupon, he revoked appellant’s probation and sentenced him to a term of five years with fifteen days credit for time served.
This court affirmed that order and the Supreme Court of Florida denied appellant’s petition for writ of certiorari. Appellant thereafter filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Florida, claiming that his due process rights had been violated when he was convicted of a probation violation with which he had not been charged. The district court agreed with appellant and determined that the order violated due process.
On September 27,1976, appellant’s probation supervisor filed a new affidavit for violation of probation, this time for violation of the aforementioned condition (c). The trial court found appellant guilty at a hearing held on October 11,1976, and again sentenced him to five years in prison with appropriate credits. This appeal ensued.
Appellant argues that the trial court had no jurisdiction on October 11, 1976 to revoke his probation. We agree.
Appellant’s original three-year term of probation ended on October 9,1975. That date remained effective despite the federal court findings. It was not until almost a year later, September 27, 1976, that the second affidavit of violation was filed. This was fatally untimely since it is well settled that an affidavit alleging a violation of probation must be filed before the expiration of the probation. Maycock v. State, 281 So. 2d 64 (Fla. 3d DCA 1973); State ex rel. Ard v. Shelby, 97 So. 2d 631 (Fla. 1st DCA 1957).
The other points raised on this appeal now become moot.
In view whereof, the order appealed from should be, and it is hereby, reversed; and the cause is remanded with directions that appellant be forever discharged of the burglary charges herein.
McNULTY, Acting C. J., and GRIMES and OTT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Swift v. State, 362 So. 2d 723 (Fla. 2d DCA 1978)…e. Watts v. State, 328 So. 2d 223 (Fla.2d DCA 1976). The other is that the court may only revoke probation for violations which occur during the term of that probation. See generally Bouie v. State, 360 So. 2d 1142 (Fla.2d DCA 1978); Wrich v. State, 350 So. 2d 1114 (Fla.2d DCA 1977). Applying these propositions to the facts here we hold that the trial court erred in placing appellant on probation for five years for leaving the scene of an accident. The maximum punishment which the court could have imposed und…
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Raleigh Dupree, Jr. v. State, 379 So. 2d 136 (Fla. 3d DCA 1979)…PER CURIAM. Affirmed. Patrick v. State, 336 So. 2d 1253 (Fla. 1st DCA 1976); Wrich v. State, 350 So. 2d 1114 (Fla. 2d DCA 1977); Section 948.06, Florida Statutes (1977).…
Authorities Cited
- State of Fla. ex rel. Fritz ARD v. Emmett Shelby, 97 So. 2d 631 (Fla. 1st DCA 1957)
- Maycock v. State, 281 So. 2d 64 (Fla. 3d DCA 1973)