Clark v. State
| Decision Date | 05 August 1981 |
| Docket Number | No. 80-44,80-44 |
| Citation | 402 So.2d 43 |
| Parties | Samuel CLARK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Donald C. Dowling, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
The appellant, Samuel Clark, appeals the revocation of his probation and a sentence of eighteen months in the state prison. He claims (1) that the trial judge lacked jurisdiction to hear two additional counts which were added to the affidavit of violation after the expiration of his probationary period, and, (2) that the evidence pertaining to the original counts was insufficient to support a guilty finding. We agree, and, consequently, reverse.
On October 4, 1978, following a plea of guilty to grand theft, appellant was placed on probation for one year, (i. e., October 4, 1978 October 3, 1979). On August 24, 1979, an affidavit of violation of probation was filed charging that on August 22, 1979, appellant actually or constructively possessed a firearm (Count I), heroin (Count II), and cocaine (Count III). On October 5, 1979, two days after the expiration of the one-year probationary period, an amended affidavit of violation of probation was filed. Counts I, II, and III of the original affidavit were realleged; two additional counts were added which charged appellant with delivery of cocaine on August 7, 1979 (Count IV), and delivery of heroin on August 9, 1979 (Count V). Following a hearing, the court found appellant guilty of violating probation by committing the acts specified in counts II, III, IV, and V, i. e., two of the original counts (II and III) and the two added counts (IV and V). The court revoked appellant's probation, adjudged him guilty of grand theft and imposed a sentence of eighteen months imprisonment.
Although appellant failed to voice an objection below to the trial court's lack of jurisdiction to consider counts IV and V due to their untimely filing, we hold that the issue may be raised for the first time on appeal since it is fundamental and jurisdictional. Gibson v. State, 351 So.2d 948, 950 (Fla.1977). Thus, we turn to the general rule which governs timely revocation of probation: once a term of probation has expired, a court lacks jurisdiction to entertain an application for revocation of probation based upon a violation which occurred during the probation period unless, during the term of probation, appropriate steps were taken to revoke or modify probation. Bouie v. State, 360 So.2d 1142 (Fla.2d DCA 1978); Carpenter v. State, 355 So.2d 492 (Fla.3d DCA 1978); State ex rel. Ard v. Shelby, 97 So.2d 631 (Fla.1st DCA 1957). See Sections 948.06(1), 948.04(2), Florida Statutes (1979).
In the case at bar the state urges that the above rule should not preclude consideration of the new or amended charges because the "amended affidavit ... was part of the process set in motion by the original affidavit...." Furthermore, the state suggests that the similarity between the original and the added charges lends credence to its "relation-back" theory. We disagree. The Supreme Court in Carroll v. Cochran, 140 So.2d 300 (Fla.1962), upheld a revocation of probation even though an arrest warrant was not served until after the termination of probation. The court grounded its decision on the fact that "the processes of the trial court had been timely set in motion ... because the warrant ... was issued within the period of probation." Id., at 301. We apply a restrictive interpretation to the holding in Carroll and conclude that while it permits a revocation process, timely begun, to continue past the probationary term, it does not allow the filing of new, substantive charges after the date of termination of probation. Consequently, since Counts IV and V constituted new and untimely filed charges, we hold that the court was divested of jurisdiction to consider them.
On the other hand, since the first three counts in the amended affidavit merely realleged the three timely-filed original charges, we hold that the court did have jurisdiction to determine whether appellant violated his probation by committing any of the acts specified in those counts. See Jess v. State, 384 So.2d 328 (Fla.3d DCA 1980). Accordingly, we turn to the record to determine whether the trial court's findings have support.
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Rita v. State
...is relevant in determining the sufficiency of the evidence to warrant revocation of probation based on a criminal act. Clark v. State, 402 So.2d 43 (Fla. 4th DCA 1981); Coley v. State, 393 So.2d 60 (Fla.3d DCA We hold that the evidence presented at the revocation hearing was legally insuffi......
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State v. Williams, 70405
...1291. Amendments were not permitted in two Florida cases, Carpenter v. State, 355 So.2d 492 (Fla.Dist.App.1978), and Clark v. State, 402 So.2d 43 (Fla.Dist.App.1981). In Carpenter, the original request to terminate probation had been filed on the last day; and when the trial court found the......
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Landeverde v. State
...the trial judge retains jurisdiction over the defendant until the period of probation or community control expires. See Clark v. State, 402 So.2d 43 (Fla. 4th DCA 1981). If a defendant violates terms and conditions of supervision, the court can revoke the defendant's probation or community ......
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Jett v. State, 97-2697.
...1st DCA 1988); Robinson v. State, 474 So.2d 1274 (Fla. 3d DCA 1985); White v. State, 410 So.2d 588 (Fla. 2d DCA 1982); Clark v. State, 402 So.2d 43 (Fla. 4th DCA 1981). However, it asks us to create an exception that would allow consideration of untimely filed charges contained in an amende......