Chadwick v. State
| Decision Date | 24 August 2012 |
| Docket Number | No. 2D12–1308.,2D12–1308. |
| Citation | 118 So.3d 827 |
| Parties | Nancy Diane CHADWICK, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Petitioner.
Pamela Jo Bondi, Attorney General, and Ralph F. Guerra, Assistant Attorney General, Tampa, for Respondent.
Nancy Diane Chadwick filed a petition for writ of habeas corpus seeking immediate release from an order of probation. On May 15, 2012, we denied her petition by order, promising to explain the reasons for the denial in a later opinion. This is the promised opinion. We hold that a criminal report affidavit may serve as an affidavit alleging a violation of probation sufficient to toll a term of probation so long as its factual content is sufficient to fulfill this function. We further hold that a technical deficiency in an affidavit of violation of probation can be cured by amendment, allowing the original affidavit to toll the term of probation from the time it was originally filed.
Ms. Chadwick was arrested in July 2009 for battery on a law enforcement officer and violation of an injunction against repeat violence. She pleaded guilty to these offenses, but the trial court withheld adjudication of guilt. The trial court placed her on eighteen months' probation for the battery and imposed a shorter term of probation for the other offense. The period of probation commenced on April 22, 2010, and, thus, was scheduled to expire on October 21, 2011. A special condition of probation required that Ms. Chadwick not file a proceeding seeking an injunction against anyone without prior court authorization.
On August 24, 2011, Ms. Chadwick apparently filed an unauthorized proceeding to obtain an injunction against someone. As a result, her probation officer arrested her on October 18, 2011, for violating this condition of her probation. The officer filed a criminal report affidavit/notice to appear (CRA/NTA) on October 19, 2011. The officer also prepared a standard affidavit of violation of probation (VOP) on October 19, 2011, but did not file that document until October 25, 2011.
In this petition, Ms. Chadwick maintains that the CRA/NTA filed on October 19 was insufficient to toll her period of probation. Because the VOP affidavit did not reach the court file until October 25, she claims that her period of probation expired on October 21, and the trial court lost jurisdiction to impose an extended term of probation. See Belt v. State, 748 So.2d 386, 388 (Fla. 5th DCA 2000) ().
Ms. Chadwick did not present this jurisdictional argument to the trial court at the VOP hearing. The trial court found that she had violated her probation and entered a new order of modification of probation that extended the probationary period for another eighteen months. Now Ms. Chadwick wants this court to grant her petition for writ of habeas corpus as a method to vacate the current order of probation and free her from this sentence. This is an appropriate use of the writ. See Adams v. State, 900 So.2d 598, 598 (Fla. 2d DCA 2004) ().
Ms. Chadwick is correct that her period of probation did not toll until the State filed an affidavit alleging a violation. The relevant statute governing tolling of a probationary period provides:
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. (2011). A prior version of this statute required both the filing of a VOP affidavit and the issuance of an arrest warrant for execution to toll the probationary period. See Sepulveda v. State, 909 So.2d 568, 570 (Fla. 2d DCA 2005); Jones v. State, 964 So.2d 167, 170 (Fla. 5th DCA 2007). Under the amended version, the “issuance of the warrant is no longer a necessary requirement to start the violation process if a warrantless arrest was made or a notice to appear was issued.” Gonzalez–Ramos v. State, 46 So.3d 67, 68 n. 1 (Fla. 5th DCA 2010).1
The first issue in this case is whether a CRA/NTA may constitute the “affidavit alleging a violation of probation or community control” that serves to toll the original term of probation. We conclude that, as long as the CRA/NTA contains the factual allegations necessary to fulfill the function of an affidavit alleging a violation of probation or community control, the CRA/NTA can be sufficient to toll the term of probation.
In this case, a probation officer arrested Ms. Chadwick. As a result, the form CRA/NTA was filled out by an officer focusing on a violation of probation. Thus, the facts in the sworn criminal report affidavit state:
Violation of Special Condition (25) to wit, on 4/22/10, the offender was court ordered to not file any injunctions against anyone without prior court authorization. On 10/18/11, the offender reported to the Probation Officer of an injunction that she filed on 8/24/11 without court authorization.
This factual statement is the essence of an affidavit alleging a violation of probation. The statute does not require the affidavit to be titled “Affidavit in Violation of Probation.” It merely requires that a sufficient affidavit be filed. We conclude that the factual content of this affidavit fulfilled the statute and was sufficient to satisfy the second prong of the statutory requirements to toll Ms. Chadwick's term of probation.
But our analysis cannot end at this comfortable point. Although the VOP affidavitthat was prepared on October 19 and filed on October 25 was apparently proper in all respects, the CRA/NTA had several deficiencies. The standard form recites that the factual allegations are “correct to the best of my knowledge.” In the blanks provided under the capitalized words “SWORN TO AND SUBSCRIBED BEFORE ME,” the oath contains the signature of a person but no notary stamp or other indication that the person was authorized to administer oaths or attest to signatures. However, we note that the person who witnessed the CRA/NTA as a notary is the same person who properly notarized the VOP affidavit.
Thus, the question here is whether these errors rendered the CRA/NTA so defective that it did not serve to toll the term of probation. We conclude that the CRA/NTA, despite its irregularities, was...
To continue reading
Request your trial
-
Allison v. Sec'y
...of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to double jeopardy." Chadwick v. State, 118 So. 3d 827, 830 (Fla. 2d DCA 2012)(quoting Smartmays v. State, 901 So. 2d 278, 280 (Fla. 5th DCA 2005)). Technical violations such as an improper oath do......
-
Holley v. State
...could be raised for the first time on direct appeal. See Smartmays v. State, 901 So.2d 278, 280 (Fla. 5th DCA 2005); Chadwick v. State, 118 So.3d 827, 830 (Fla. 2d DCA 2012). Likewise, a technical defect in a VOP affidavit provides no basis for postconviction relief. Holley's claim that the......
-
Gun v. State
...or constitute fundamental error that could be raised for the first time on direct appeal.") (citations omitted); Chadwick v. State, 118 So. 3d 827, 830 (Fla. 2d DCA 2012) ("An affidavit of VOP, like a criminal information, is 'fundamentally defective only where it totally omits an essential......
-
Gun v. State
...or constitute fundamental error that could be raised for the first time on direct appeal.”) (citations omitted); Chadwick v. State, 118 So.3d 827, 830 (Fla. 2d DCA 2012) (“An affidavit of VOP, like a criminal information, is ‘fundamentally defective only where it totally omits an essential ......