Hodges v. State

262 So. 3d 842
District Court of Appeal of Florida·Decided December 27, 2018·No. No. 1D17-4672·Published·Cited by 1 cases

Opinion

Per Curiam.

In this appeal from his resentencing following the revocation of probation, Appellant raises three claims: (1) the trial court erred in denying his motion to dismiss for lack of jurisdiction because his probation had expired; (2) the trial court committed reversible error in finding that he violated his probation by leaving his county of residence and changing his approved residence without his probation officer's consent; and (3) the trial court erred in not specifying the conditions violated in the *844revocation order. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

I.

Appellant moved unsuccessfully to dismiss for lack of jurisdiction because his probation expired, asserting that the filing of an affidavit and issuance of an arrest warrant for technical violations of probation did not toll the probationary period. In doing so, he relied on Mobley v. State , 197 So.3d 572 (Fla. 4th DCA 2016), in which the Fourth District explained:

Section 948.06(1)(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.

Id. at 574. However, in Williams v. State , 202 So.3d 917 (Fla. 4th DCA 2016), the Fourth District held that when a defendant absconds from probation, an exception to its holding in Mobley is triggered, and the probationary period is tolled until the defendant is once more placed under probationary supervision.

More recently, the Second District explained that "our common law recognizes that a probationer's absconsion from supervision during his probationary term, apart from section 948.06(1)(f)'s tolling provision, automatically tolls his term." Canchola v. State , 43 Fla. L. Weekly D2092, D2093, 255 So.3d 442 (Fla. 2d DCA Sept. 7, 2018). The trial court denied Appellant's motion to dismiss on the ground that Appellant had been charged with absconding from supervision, which tolled the running of Appellant's probation.

At the probation violation hearing, Appellant's probation officer testified that Appellant's mother came to his office and informed him that Appellant had not been home in a week. Appellant's mother acknowledged at the hearing that Appellant had not been at her home for a week and that she did not know his whereabouts at that time. Thus, there was competent, substantial evidence that Appellant had absconded for at least a week during his probationary term. If tolled for the week that he had absconded, Appellant's probation would have expired on June 16, 2017. It appears undisputed that Appellant was arrested on June 15, 2017, for criminal charges in Duval County pursuant to a warrant under section 901.02. Because Appellant was arrested on this warrant before his probation expired, his probation was tolled by operation of section 948.06(1)(f).

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Hodges v. State, 262 So. 3d 842 (Fla. Ct. App. 2018).

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