Boyd v. State, 96-2349

• Citation: 699 So.2d 295
• Decision Date: 16 September 1997
• Docket Number: No. 96-2349,96-2349
• Parties: 22 Fla. L. Weekly D2221 Richard K. BOYD, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 295

699 So.2d 295

22 Fla. L. Weekly D2221

Richard K. BOYD, Appellant, v. STATE of Florida, Appellee.

No. 96-2349.

District Court of Appeal of Florida,

First District.

Sept. 16, 1997.

Nancy A. Daniels, Public Defender; Raymond Dix, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Laura M. Fullerton and Carolyn J. Mosley, Assistant Attorneys General, Tallahassee, for Appellee.

WEBSTER, Judge.

Appellant seeks review of final orders revoking his community control and imposing a prison sentence. He contends that the trial court had lost jurisdiction several years before it entered those orders because a previously imposed probationary term had expired. We agree and, accordingly, reverse. We also certify to the supreme court a question which we believe to be of great public importance.

Although not in dispute, the relevant facts are somewhat involved. Having entered no contest pleas to various offenses, appellant was sentenced in 1988 to four years in prison, to be followed by two years on probation. After he had served the incarcerative portion of his sentence and begun the probationary portion, appellant was charged with a violation of probation, which he admitted. On March 27, 1990, appellant was placed back on probation for one year.

An affidavit alleging that appellant had violated the terms of his probation was subsequently signed on March 6, 1991. An arrest warrant was signed by a circuit judge on March 25, 1991. The record does not indicate when the warrant was delivered to the sheriff for execution. Both the affidavit and the warrant were filed on March 29, 1991.

Appellant was not arrested pursuant to the warrant until February 1995. He did not contest the affidavit alleging that he had violated the conditions of his probation. Accordingly, in August 1995, appellant's probation was revoked, and he was placed on community control for one year.

In January 1996, an affidavit was filed alleging that appellant had violated the conditions of his community control. Appellant was arrested pursuant to a warrant in April 1996. At his revocation hearing, appellant moved to dismiss the affidavit charging a violation of community control. He argued that the trial court had lost jurisdiction in 1991, because there was no indication in the record that the arrest warrant for the violation of probation had issued before his probationary term had expired. The trial court denied the motion, revoked appellant's community control and sentenced him to prison. This appeal follows.

On appeal, appellant argues that, because he challenged the jurisdiction of the trial court, it was incumbent upon the state to establish that jurisdiction existed. He contends that the state failed to do this because it did not establish that sufficient action had been taken on the affidavit alleging a violation of probation before appellant's probationary term had expired; in particular, that the arrest warrant had been issued. The state responds that it was not obliged to establish that the warrant had been issued before the probationary term expired because the acts that did occur before the expiration of that term were sufficient.

In State ex rel. Ard v. Shelby, 97 So.2d 631, 632 (Fla. 1st DCA 1957), this court said "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 pursuant to Section 948.06, F.S." At the time Ard was written, "the processes ... for revocation or modification of probation pursuant to Section 948.06, F.S." could be commenced either by arrest without a warrant, or by arrest pursuant to a warrant issued by a committing magistrate after review of an affidavit stating facts sufficient to create a reasonable belief that a violation had occurred. § 948.06(1) Fla. Stat. (1957). That portion of section 948.06 remains substantively unchanged. § 948.06(1), Fla. Stat. (1995). The supreme court approved the foregoing language from Ard in Carroll v. Cochran, 140 So.2d 300 (Fla.1962). In Carroll, the court concluded that "the processes of the trial court had been set in motion, for the warrant for petitioner's arrest because of his violation of probation was issued within the period of probation." Id. at 301.

More recently, in Fryson v. State, 559 So.2d 377 (Fla. 1st DCA 1990), this court applied the foregoing language from Ard, which it referred to as "[t]he general rule regarding timeliness of probation revocation proceedings." Id. at 378. In Fryson, we rejected the appellant's argument that the trial court had been without jurisdiction to revoke his probation with the following explanation:

Although the affidavit of violation ... was not filed until after appellant's term of probation had ended, it is clear that the action which set the revocation processes in motion--i.e., the signing of the affidavit of violation and the issuance of an arrest warrant based on the affidavit--took place prior to the expiration of probation.

Id. (emphasis in original). A fair reading of this language leads to the conclusion that the court was of the opinion that both the signing of the affidavit of violation and the issuance of the arrest warrant were necessary to set the revocation process in motion. In fact, the Second District has so read Fryson.

In State v. Wimberly, 574 So.2d 1216 (Fla. 2d DCA 1991), the trial court had dismissed a probation violation proceeding, concluding that it lacked jurisdiction. The state appealed. On appeal, Wimberly relied on an earlier Second District decision, Rodriguez v. State, 511 So.2d 444 (Fla. 2d DCA 1987). In Rodriguez, the court had held that the mere fact that the affidavit alleging a violation of probation had been signed before the probationary term had expired was not sufficient to set the revocation process in motion when the affidavit had not been filed, and the arrest warrant had not been issued, until after the term had expired. The Wimberly court distinguished Rodriguez with the following language:

The case sub judice is distinguishable from Rodriguez, because here, not only was the affidavit submitted to the court prior to the expiration of the period, but an arrest warrant was issued also prior to the expiration of the period of probation. Thus, by these actions, the revocation process was set in motion before the probation period expired. See Fryson v. State, 559 So.2d 377 (Fla. 1st DCA 1990).

574 So.2d at 1217.

Based upon the foregoing analysis, we determine that a necessary condition precedent to a conclusion that the process of revocation has been set in motion is a finding that an arrest warrant has been issued; the fact that an affidavit has been signed is, by itself, insufficient to support such a conclusion. Appellant argues that there is no evidence in the record that the arrest warrant was issued before his probationary term expired. The state counters that the warrant was issued when it was signed by the judge, on March 25, 1991. We believe that the resolution of this disagreement is found in Dubbs v. Lehman, 100 Fla. 799, 130 So. 36 (1930).

In Dubbs, the petitioner had filed a petition for writ of habeas corpus in the trial court, claiming that he was entitled to release because the statute of limitations had run on the offense with which he was charged before the prosecution had commenced. The trial court denied relief, and the petitioner sought review in the supreme court. The supreme court said that a prosecution does not commence for statute of limitations purposes until an arrest warrant is...