Williams v. State

202 So. 3d 917, 2016 Fla. App. LEXIS 15184
District Court of Appeal of Florida·Decided October 13, 2016·No. No. 4D16-2697·Published·Cited by 15 cases

Opinion

GERBER, J.

The defendant petitions for a 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, during the defendant’s probation term, he had absconded from supervision, which would be an independent basis for tolling his probation term. Therefore, we deny the defendant’s petition.

We present this opinion in three parts:

1. the procedural history;
2. an examination of Mobley; and
3. why'Mobley is inapplicable here.

1. The Procedural History

Fifteen months before the defendant’s probation term was set to expire absent any tolling, his probation officer filed an affidavit alleging two VOPs: failure to pay costs of supervision and failure to report. The circuit court issued a warrant based on the affidavit.

Seven months before the defendant’s probation term was set to expire absent any tolling, his probation officer filed an amended affidavit adding two more alleged VOPs: failure to make restitution payments and changing residence without the probation officer’s consent. The amended affidavit further alleged that the defendant’s “current whereabouts is unknown.” The circuit court issued a second warrant based on the amended affidavit.

One month after the defendant’s probation term was set to expire absent any tolling, he was arrested for new crimes. Upon the arresting agency’s apparent discovery that the defendant also had outstanding VOP warrants, he also was taken into custody on those warrants.

Two months after the defendant’s probation term was set to expire absent any tolling, the probation officer filed a second amended affidavit adding the two new crimes as additional VOPs.

The defendant filed a motion to dismiss the two warrants and the second amended affidavit. In the motion, the defendant argued that, pursuant to Mobley, because the warrants did not charge new crimes, the warrants did not toll his probation term. Therefore, because he was not arrested until after his probation term expired, the court lacked subject matter jurisdiction over the warrants and the second amended affidavit.

After a hearing, the circuit court orally denied the defendant’s motion to dismiss. [919] The court reasoned that even if the defendant’s motion to dismiss was valid under Mobley, it had issued a “standing order,” before placing the defendant on probation and before Mobley, providing that any VOP warrant which it issued tolled the corresponding probation term until it resolved the violation. The trial court recognized that, if “the Fourth DCA says the Court doesn’t have the power to do what I did, then it will effectively nullify my order as I’ve made a finding today that pursuant to Mobley, he may be entitled to release.”

Following the court’s oral ruling, the state noted for the record “that the violation could be considered a new law offense since there’s an absconding element to it.”

The court later entered a written order denying the defendant’s motion to dismiss for the reasons stated on the record.

This petition followed. As in the circuit court, the defendant argues that, pursuant to Mobley, because the two warrants did not charge new crimes, the warrants did not toll his probation term. Therefore, because he was not arrested until after his probation term expired, the court lacked subject matter jurisdiction over the warrants and the second amended affidavit.

We have jurisdiction. See English v. McCrary, 348 So.2d 293, 296 (Fla.1977) (an appellate court may issue a writ of prohibition when a court within the appellate court’s supervision is “exceeding jurisdiction or usurping jurisdiction over matters not within its jurisdiction”).

2. An Examination of Mobley

To evaluate the defendant’s argument, we examine Mobley in detail.

In Mobley, one month before the defendant’s probation term was set to expire absent any tolling, his probation officer filed an affidavit alleging two VOPs: failing to pay restitution and failing to pay a drug testing fee. The circuit court issued a warrant based on the affidavit. 197 So.3d at 573.

Twenty days after the defendant’s probation term was set to expire absent any tolling, the circuit court extended the defendant’s probation term for two more years for the VOPs. Id.

Shortly after this extension, the defendant was arrested for a new crime which became the basis for another VOP against the defendant. Id.

Based on that new VOP, the circuit court revoked the defendant’s probation and sentenced him to prison on his original offenses. Id.

On appeal, the defendant argued that upon his probation term’s expiration absent any tolling, the circuit court lacked subject matter jurisdiction to later extend and revoke his probation. Id.

The state argued that the defendant’s probation term became tolled upon the circuit court issuing a warrant based upon the probation officer’s affidavit. Id. at 574. In support, the state relied upon Shenfeld v. State, 14 So.3d 1021 (Fla. 4th DCA 2009), for the following proposition:

It is axiomatic that once 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.

Id. at 1023 (emphasis added; citation and internal brackets and quotation marks omitted).

We agreed with the defendant’s argument and reversed the circuit court’s revocation of his probation and his consequent sentence. Mobley, 197 So.3d at 574. We reasoned:

[920] 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(1)(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).

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Williams v. State, 202 So. 3d 917, 2016 Fla. App. LEXIS 15184 (Fla. Ct. App. 2016).

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