IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
LORENZO KEANDRE SMITH,
Petitioner,
v. Case No. 5D22-1663 LT Case No. 2019-CF-007172-A-O STATE OF FLORIDA,
Respondent. ________________________________/
v. Case No. 5D22-1688 LT Case No. 2020-CF-001103-A-O STATE OF FLORIDA,
Opinion filed October 3, 2022
Petition for Writ of Prohibition, Wayne C. Wooten, Respondent Judge.
Robert Wesley, Public Defender, and Robert Thompson Adams IV, Assistant Public Defendant, Orlando, for Petitioner. Ashley Moody, Attorney General, Tallahassee, and Roberts J. Bradford, Jr., Assistant Attorney General, Daytona Beach, for Respondent.
WOZNIAK, J.
Lorenzo Smith has filed essentially identical petitions for writ of
prohibition seeking therein to prohibit the trial court from proceeding in his
two underlying violation of probation cases for lack of jurisdiction. 1 He
contends that when his jail credit for time served awaiting disposition is
correctly credited against the overall probationary term in each case, it is
clear he was no longer serving probation at the time the affidavits of violation
of probation were filed, leaving the trial court without jurisdiction over the
violation of probation proceedings. We agree and grant the petitions.
We begin by observing that a writ of prohibition premised on a lack of
jurisdiction is appropriate only where it is clear that the lower tribunal is
without jurisdiction or attempting to act in excess of its jurisdiction. State v.
Jackson, 306 So. 3d 936, 944 (Fla. 2020) (observing that prohibition may
1 Although separate petitions were filed, we have chosen to address them in a single opinion inasmuch as Smith’s two petitions arise out of the same facts and circumstances, involve the same parties, and present the same issue, namely the trial court’s jurisdiction to consider the alleged violations of probation where the probation violation affidavits were assertedly filed after Smith’s probation had concluded.
2 only be granted when it is shown that a lower court is without jurisdiction or
attempting to act in excess of jurisdiction); Golub v. Golub, 325 So. 3d 164,
171 (Fla. 5th DCA 2021) (“A writ of prohibition is intended to be ‘very narrow
in scope and operation and must be employed with caution and utilized only
in emergency cases to prevent an impending injury where there is no other
appropriate and adequate legal remedy.’” (quoting Mandico v. Taos Constr.,
Inc., 605 So. 2d 850, 854 (Fla. 1992))).
It is established law that when a defendant has been placed on
probation, the sentencing court loses jurisdiction over the defendant once
the probationary period expires unless proceedings to modify or revoke
probation have been instituted in the interim. See § 948.04(2), Fla. Stat.
(2020) (“Upon the termination of the period of probation, the probationer shall
be released from probation and is not liable to sentence for the offense for
which probation was allowed.”); State v. Hall, 641 So. 2d 403, 404 (Fla. 1994)
(“It has long been the rule that ‘upon expiration of the probationary period
the court is divested of all jurisdiction over the person of the probationer
unless in the meantime the processes of the court have been set in motion
for revocation or modification of the probation . . . .’” (quoting Carroll v.
Cochran, 140 So. 2d 300, 301 (Fla. 1962))). Thus, if the affidavits of
probation violation were filed after Smith’s probation ended, the trial court
3 had no jurisdiction to rule on the alleged violations, and Smith’s motions to
dismiss were erroneously denied.
We must thus determine the date Smith’s probation concluded, which
requires a review of the probation documents to determine precisely how the
period of confinement was to be implemented vis-à-vis the period of
probation. In both cases at issue here, the probation order imposes twenty-
four months of supervised probation, with the condition that Smith complete
a term of six months in jail with credit for time served. Smith maintains that
the period of confinement was imposed as a condition of probation, as
opposed to being a so-called probationary split sentence in which a period
of confinement is followed by a period of probation. He is correct. The term
of confinement was clearly a condition of probation, which arrangement is
authorized by section 948.03(2), Florida Statutes (2020) (stating that “[t]he
enumeration of specific kinds of terms and conditions does not prevent the
court from adding thereto such other or others as it considers proper” and
imposing requirements “if the court . . . imposes a period of incarceration as
a condition of probation”). 2
2 The authorization is not without limitation. When a sentencing court imposes a period of incarceration as a condition of probation, “the period may not exceed 364 days, and incarceration shall be restricted to either a county facility, or a probation and restitution center under the jurisdiction of the Department of Corrections.” § 948.03(2), Fla. Stat. (2020).
4 Although the Legislature has expressly authorized incarceration as a
condition of probation, it has not spoken on the proper application of jail time
credit in an instance such as Smith’s. No statute expressly directs that jail
credit is to be applied to the entire probationary period. However, the courts
have filled that void. Building upon the Florida Supreme Court’s finding in
Van Tassel v. Coffman, 486 So. 2d 528, 529–30 (Fla. 1985), that there is “a
legislative intent to grant gain time to the prison punishment of all offenders,
whether by the historic straight sentence, the now authorized split sentence,
or probation which contains a condition of imprisonment,” this Court, in
Griner v. State, 523 So. 2d 789, 790 (Fla. 5th DCA 1988), concluded,
“Following the logic of Van Tassel, we can discern no reason for denying
credit for prior jail time to one confined as a condition of probation.” Indeed,
this Court has consistently so held. See, e.g., Belt v. State, 748 So. 2d 386
(Fla. 5th DCA 2000) (holding, where incarceration was imposed as condition
of probationary term, proper calculation of probationary term requires jail
credit be given against entire probationary term); Greer v. State, 605 So. 2d
178 (Fla. 5th DCA 1992) (observing defendant entitled to jail time credit as
matter of law; remanding for amendment of sentence to provide such credit
against county jail time ordered as condition of community control).
5 To be clear, we have concerns regarding the absence of express
statutory authority for the award of jail time credit to the entire probationary
period; however, we are bound to follow the precedent of the Florida
Supreme Court and this Court permitting it. Thus, we agree with Smith that
based on this precedent, where probation has been imposed with jail time
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
LORENZO KEANDRE SMITH,
Petitioner,
v. Case No. 5D22-1663 LT Case No. 2019-CF-007172-A-O STATE OF FLORIDA,
Respondent. ________________________________/
v. Case No. 5D22-1688 LT Case No. 2020-CF-001103-A-O STATE OF FLORIDA,
Opinion filed October 3, 2022
Petition for Writ of Prohibition, Wayne C. Wooten, Respondent Judge.
Robert Wesley, Public Defender, and Robert Thompson Adams IV, Assistant Public Defendant, Orlando, for Petitioner. Ashley Moody, Attorney General, Tallahassee, and Roberts J. Bradford, Jr., Assistant Attorney General, Daytona Beach, for Respondent.
WOZNIAK, J.
Lorenzo Smith has filed essentially identical petitions for writ of
prohibition seeking therein to prohibit the trial court from proceeding in his
two underlying violation of probation cases for lack of jurisdiction. 1 He
contends that when his jail credit for time served awaiting disposition is
correctly credited against the overall probationary term in each case, it is
clear he was no longer serving probation at the time the affidavits of violation
of probation were filed, leaving the trial court without jurisdiction over the
violation of probation proceedings. We agree and grant the petitions.
We begin by observing that a writ of prohibition premised on a lack of
jurisdiction is appropriate only where it is clear that the lower tribunal is
without jurisdiction or attempting to act in excess of its jurisdiction. State v.
Jackson, 306 So. 3d 936, 944 (Fla. 2020) (observing that prohibition may
1 Although separate petitions were filed, we have chosen to address them in a single opinion inasmuch as Smith’s two petitions arise out of the same facts and circumstances, involve the same parties, and present the same issue, namely the trial court’s jurisdiction to consider the alleged violations of probation where the probation violation affidavits were assertedly filed after Smith’s probation had concluded.
2 only be granted when it is shown that a lower court is without jurisdiction or
attempting to act in excess of jurisdiction); Golub v. Golub, 325 So. 3d 164,
171 (Fla. 5th DCA 2021) (“A writ of prohibition is intended to be ‘very narrow
in scope and operation and must be employed with caution and utilized only
in emergency cases to prevent an impending injury where there is no other
appropriate and adequate legal remedy.’” (quoting Mandico v. Taos Constr.,
Inc., 605 So. 2d 850, 854 (Fla. 1992))).
It is established law that when a defendant has been placed on
probation, the sentencing court loses jurisdiction over the defendant once
the probationary period expires unless proceedings to modify or revoke
probation have been instituted in the interim. See § 948.04(2), Fla. Stat.
(2020) (“Upon the termination of the period of probation, the probationer shall
be released from probation and is not liable to sentence for the offense for
which probation was allowed.”); State v. Hall, 641 So. 2d 403, 404 (Fla. 1994)
(“It has long been the rule that ‘upon expiration of the probationary period
the court is divested of all jurisdiction over the person of the probationer
unless in the meantime the processes of the court have been set in motion
for revocation or modification of the probation . . . .’” (quoting Carroll v.
Cochran, 140 So. 2d 300, 301 (Fla. 1962))). Thus, if the affidavits of
probation violation were filed after Smith’s probation ended, the trial court
3 had no jurisdiction to rule on the alleged violations, and Smith’s motions to
dismiss were erroneously denied.
We must thus determine the date Smith’s probation concluded, which
requires a review of the probation documents to determine precisely how the
period of confinement was to be implemented vis-à-vis the period of
probation. In both cases at issue here, the probation order imposes twenty-
four months of supervised probation, with the condition that Smith complete
a term of six months in jail with credit for time served. Smith maintains that
the period of confinement was imposed as a condition of probation, as
opposed to being a so-called probationary split sentence in which a period
of confinement is followed by a period of probation. He is correct. The term
of confinement was clearly a condition of probation, which arrangement is
authorized by section 948.03(2), Florida Statutes (2020) (stating that “[t]he
enumeration of specific kinds of terms and conditions does not prevent the
court from adding thereto such other or others as it considers proper” and
imposing requirements “if the court . . . imposes a period of incarceration as
a condition of probation”). 2
2 The authorization is not without limitation. When a sentencing court imposes a period of incarceration as a condition of probation, “the period may not exceed 364 days, and incarceration shall be restricted to either a county facility, or a probation and restitution center under the jurisdiction of the Department of Corrections.” § 948.03(2), Fla. Stat. (2020).
4 Although the Legislature has expressly authorized incarceration as a
condition of probation, it has not spoken on the proper application of jail time
credit in an instance such as Smith’s. No statute expressly directs that jail
credit is to be applied to the entire probationary period. However, the courts
have filled that void. Building upon the Florida Supreme Court’s finding in
Van Tassel v. Coffman, 486 So. 2d 528, 529–30 (Fla. 1985), that there is “a
legislative intent to grant gain time to the prison punishment of all offenders,
whether by the historic straight sentence, the now authorized split sentence,
or probation which contains a condition of imprisonment,” this Court, in
Griner v. State, 523 So. 2d 789, 790 (Fla. 5th DCA 1988), concluded,
“Following the logic of Van Tassel, we can discern no reason for denying
credit for prior jail time to one confined as a condition of probation.” Indeed,
this Court has consistently so held. See, e.g., Belt v. State, 748 So. 2d 386
(Fla. 5th DCA 2000) (holding, where incarceration was imposed as condition
of probationary term, proper calculation of probationary term requires jail
credit be given against entire probationary term); Greer v. State, 605 So. 2d
178 (Fla. 5th DCA 1992) (observing defendant entitled to jail time credit as
matter of law; remanding for amendment of sentence to provide such credit
against county jail time ordered as condition of community control).
5 To be clear, we have concerns regarding the absence of express
statutory authority for the award of jail time credit to the entire probationary
period; however, we are bound to follow the precedent of the Florida
Supreme Court and this Court permitting it. Thus, we agree with Smith that
based on this precedent, where probation has been imposed with jail time
as a condition thereof, any jail time credit for time served is to be applied to
the entire term of probation. By properly crediting Smith with his jail time
credit against the entire probationary term in each case and comparing that
date with the date the affidavit of violation was filed in each case, we must
conclude that his probationary terms had terminated prior to the date the
affidavits of violation were filed.
Using one of his cases to illustrate the correct computation of the
termination date of probation, Smith was placed on twenty-four months’
probation on May 21, 2020. The last day of the probationary term, i.e., the
last day on which Smith would be on probation, but for the jail credit, was
thus on or about May 20, 2022. Crediting May 20, 2022, and another 116
days, places the end date of probation, i.e., the last date on which Smith
would have been on probation, on or about January 23, 2022. Because the
affidavit of violation was filed over two months after Smith’s probation had
concluded, the trial court had no jurisdiction to proceed in that case. Similar
6 calculations reflect that the affidavit in the remaining case was also filed after
the probationary period had ended. Thus, the trial court was divested of
jurisdiction to proceed in either case.
Because the trial court should have granted Smith’s motions to dismiss
the violation of probation proceedings, we grant the petitions for writ of
prohibition. As we are confident that the trial judge will promptly comply with
this Court’s opinion, we withhold formal issuance of the writ.
PETITIONS GRANTED; WRITS WITHHELD.
SASSO and NARDELLA, JJ., concur.