State v. T.A.K.

240 So. 3d 885
CourtDistrict Court of Appeal of Florida
DecidedMarch 23, 2018
DocketCase No. 2D17–549
StatusPublished

This text of 240 So. 3d 885 (State v. T.A.K.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. T.A.K., 240 So. 3d 885 (Fla. Ct. App. 2018).

Opinion

LaROSE, Chief Judge.

The State appeals an order dismissing T.A.K.'s delinquency case due to the expiration of an earlier imposed probationary term. We have jurisdiction. See Fla. R. App. P. 9.145(c)(1)(A). We affirm.

Background Facts

T.A.K. pleaded guilty to the delinquent act of battery. The trial court withheld adjudication of delinquency and placed T.A.K. on six months' probation. The probationary term was to end on October 28, 2016. On September 15, 2016, the State filed an unsworn "Notice of violation of court order," stating that T.A.K. had failed to comply with his probationary requirements. The State wanted the trial court to hold T.A.K. in contempt for his "fail[ure] to comply with multiple sanctions required by his case manager." The notice specified *886no material facts underlying the State's request.

The trial court scheduled an evidentiary hearing for October 25, 2016. T.A.K. was present for that hearing before Judge Moore. However, the parties were unable to proceed because defense counsel represented that he might have a conflict of interest. Consequently, the trial court rescheduled the hearing to October 27, 2016. On October 26, the State filed an unsworn petition seeking to revoke T.A.K.'s probation.

T.A.K. did not appear at the October 27 hearing. The State stated that, if T.A.K. were present, it was prepared to proceed on the revocation of probation. Nevertheless, because of the approaching October 28 expiration of T.A.K.'s probationary term, the State asked the trial court to extend its jurisdiction beyond October 28. The trial court (Judge Coleman) agreed. Judge Coleman reasoned that T.A.K.'s probationary term had been tolled by the State's filing of the October 26 petition. He also concluded that tolling occurred because the revocation proceeding began at the October 27 hearing, prior to the termination date.

On January 27, 2017, T.A.K. filed a motion to dismiss the petition due to the expiration of jurisdiction. Following a February 2, 2017, hearing, the trial court (Judge Moore) granted the motion, despite Judge Coleman's earlier ruling to extend jurisdiction.

State's Argument

The State raises two arguments. First, the State contends that it properly filed the petition and that revocation proceedings were initiated before the October 28 expiration of probation. Thus, according to the State, the trial court retained jurisdiction. Second, the State argues that the trial court impermissibly considered T.A.K.'s motion to dismiss, as it was in actuality an untimely motion for rehearing. See Fla. R. Juv. P. 8.130(b)(1) (requiring a motion for rehearing "be made within 10 days of the entry of the order being challenged"). We reject the second argument without further comment. We reject the first argument, too; however, we write to explain why tolling did not apply. In doing so, we address the manner in which the State purported to initiate probation revocation proceedings against T.A.K.

Analysis

There is no tolling provision applicable to juvenile probation violation proceedings. See T.L.H. v. State, 93 So.3d 396, 398 (Fla. 2d DCA 2012) ("We agree with the decision of the Fifth District that there is no provision in either the statutes or the rules governing juvenile delinquency proceedings that allows for tolling of probation upon the filing of an affidavit and the issuance of a warrant." (citing K.L.T. v. State, 65 So.3d 102 (Fla. 5th DCA 2011) ) ); see also X.G. v. State, 106 So.3d 90, 91 n.1 (Fla. 2d DCA 2013) ("X.G.'s probation was set to expire ... on August 11, 2011, and even though the affidavit/petition was filed in July 2011, there is no tolling provision applicable to juvenile probation proceedings." (first citing R.H. v. State, 93 So.3d 1166, 1167 (Fla. 2d DCA 2012) ; then citing T.L.H., 93 So.3d at 398-99 ) ). Consequently, whether the probation violation proceedings were initiated prior to the expiration of T.A.K.'s probation is of no moment. And, of course, we cannot rewrite the juvenile rules or statutes to suit the State.1 See *887Fla. Dep't of Revenue v. Fla. Mun. Power Agency, 789 So.2d 320, 324 (Fla. 2001) ("Under fundamental principles of separation of powers, courts cannot judicially alter the wording of statutes where the Legislature clearly has not done so.").

We now address the process by which the State pursued T.A.K.'s alleged probation violations. Upon a probation violation, "the [Department of Juvenile Justice] or the state attorney may bring the child before the court on a petition alleging a violation of the program." § 985.439(1)(b), Fla. Stat. (2016). We have not hesitated to reverse orders revoking a juvenile's probation absent a filed petition. See R.H., 93 So.3d at 1167 ("Because section 985.439(1)(b) and [Florida Rule of Juvenile Procedure] 8.120(a)(3) both require either the State or the DJJ to file a petition alleging a violation of juvenile probation before revocation proceedings can occur and because no petition was filed in this case, we conclude that R.H.'s probation expired prior to the revocation hearing."); T.L.H., 93 So.3d at 398-99 (holding that, in the absence of a violation petition, the complaint filed by the arresting officer was insufficient to initiate revocation proceedings). Here, the state attorney filed a petition.

However, that is not the end. Rule 8.120(a)(2) provides in pertinent part as follows: "Any proceeding alleging a violation shall be initiated by the filing of a sworn affidavit of the material facts supporting the allegation(s). The affidavit shall be executed by the child's juvenile probation officer or other person having actual knowledge of the facts." See also T.L.H., 93 So.3d at 398 (" Florida Rule of Juvenile Procedure 8.120, dealing with revocation of juvenile probation, provides that a proceeding alleging a violation of probation shall be initiated by the filing of a sworn affidavit executed by the child's juvenile probation officer 'or other person having the actual knowledge of the facts.' " (quoting Fla. R. Juv. P. 8.120(a)(2) ) ); M.T. v. State, 805 So.2d 898, 899 (Fla.

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Bluebook (online)
240 So. 3d 885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tak-fladistctapp-2018.