Crain v. State
| Decision Date | 18 November 2005 |
| Docket Number | No. 5D05-778.,5D05-778. |
| Citation | 914 So.2d 1015 |
| Parties | Brian CRAIN, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Robert Wesley, Public Defender and Nicole K.H. Maldonado, Assistant Public Defender, Orlando, for Petitioner.
Charles J. Crist, Jr., Attorney General, Tallahassee and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Respondent.
EN BANC
The issue we address in this case is whether an arrest affidavit to secure a warrant for violation of probation is valid if it is verified under section 92.525, Florida Statutes (2003), but not sworn to before a person authorized to administer oaths. In Jackson v. State, 881 So.2d 666 (Fla. 5th DCA 2004), we held that an affidavit to secure a warrant for violation of probation pursuant to section 948.06(1), Florida Statutes (2002), must be sworn to before a person authorized to administer oaths and that verification under section 92.525 is not appropriate. We consider this case en banc to provide additional reasoning for our decision in Jackson and to clarify that our holding in that case does not prohibit application of the good faith exception to the exclusionary rule to warrants obtained with affidavits verified under section 92.525. We will briefly discuss the factual and procedural background of this case, followed by a discussion of the oath requirement for arrest affidavits and the good faith exception.
After pleading guilty, Brian Crain was placed on probation as part of his sentence. When he failed to comply with certain conditions of his probation, an affidavit alleging the violations was filed. The affidavit was verified pursuant to section 92.525, Florida Statutes (2003), but not sworn to before a person authorized to administer oaths. Crain filed a Petition for Prohibition claiming that the affidavit was defective because it was not properly sworn to and, therefore, the warrant that was issued pursuant thereto was also defective. Both the affidavit and warrant were secured prior to the expiration of Crain's probationary period. In the petition, which was filed after the probationary period expired, Crain asserts that since the affidavit and warrant are defective and his probationary period has expired, the trial court does not have jurisdiction to proceed with the violation hearing and he may not be held accountable for his violations.
We adhere to the view adopted in Jackson and, therefore, agree with Crain that the affidavit is defective because it was not sworn to before a person authorized to administer oaths. However, we are also of the view that the defective affidavit does not vitiate the warrant based on the good faith exception to the exclusionary rule. We believe that Crain's petition should be denied because it is the issuance of the warrant prior to the expiration of the probationary period that vests the trial court with jurisdiction, not the filing of the affidavit. To explain our views, we begin with a discussion of the oath requirement of the affidavit under Florida and federal law.
Section 948.06(1), Florida Statutes (2003),1 governs violation of probation proceedings and provides that "[a]ny committing magistrate may issue a warrant, upon the facts being made known to him or her by affidavit of one having knowledge of such facts ... [and] ... [u]pon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s. 901.02, the probationary period is tolled until the court enters a ruling on the violation." § 948.06(1), Fla. Stat. (2003) (emphasis added). Because section 901.02, Florida Statutes, specifically governs the issuance of arrest warrants, section 948.06(1) requires an affidavit to establish probable cause for the issuance of an arrest warrant for the probation violator. The date an arrest warrant is issued, which is the date it is signed by a judge, is significant because that is the trigger that tolls the running of the probationary period.2 Therefore, if the arrest warrant in the instant case is valid, Crain must be held accountable for his violations because it is not disputed that the warrant was issued prior to the expiration of the probationary period.
We held in Jackson that section 92.525 does not apply to an affidavit to secure an arrest warrant. That statute applies "[w]hen it is authorized or required by law, by rule of an administrative agency, or by rule or order of court that a document be verified by a person...." § 92.525(1), Fla. Stat. (2003). Verification means that the individual executes the required document with an oath or affirmation that the information contained therein is true—it does not require that the document be sworn to before an individual authorized to administer oaths. § 92.525(4)(c), Fla. Stat. (2003); Mieles v. South Miami Hosp., 659 So.2d 1265 (Fla. 3d DCA 1995); State, Dep't of Highway Safety & Motor Vehicles v. Padilla, 629 So.2d 180 (Fla. 3d DCA 1993), review denied, 639 So.2d 980 (Fla.1994). Section 948.06(1), on the other hand, does not provide for verification; it specifically requires an affidavit. "An affidavit is by definition a statement in writing under an oath administered by a duly authorized person...." Youngker v. State, 215 So.2d 318, 321 (Fla. 4th DCA 1968) (citing Black's Law Dictionary, (4th ed.)). "An oath is an unequivocal act, before an officer authorized to administer oaths, by which the person knowingly attests to the truth of a statement and assumes the obligations of an oath." State v. Johnston, 553 So.2d 730, 733 (Fla. 2d DCA 1989) (citations omitted); see also Youngker, 215 So.2d at 321 () (citation omitted). Section 92.50, Florida Statutes, also indicates that an affidavit must be sworn to before a person authorized to administer oaths. It provides in pertinent part that
[o]aths, affidavits, and acknowledgments required or authorized under the laws of this state (except oaths to jurors and witnesses in court and such other oaths, affidavits and acknowledgments as are required by law to be taken or administered by or before particular officers) may be taken or administered by or before any judge, clerk, or deputy clerk of any court of record within this state, including federal courts, or before any United States commissioner or any notary public within this state.
§ 92.50(1), Fla. Stat. (2003).
Hence, in order to secure an arrest warrant under section 948.06(1), the affidavit must be sworn to before a person authorized to administer oaths. In addition to the statutory provisions and case law discussed above, the federal and Florida constitutions and pertinent rules of court compel this conclusion. For example, the Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article I, section 12, of the Florida Constitution, relating to search and seizure, states that "[n]o warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained." This constitutional requirement has been codified in Florida Rule of Criminal Procedure 3.120, which provides in pertinent part:
Each state and county judge is a committing judge and may issue a summons to, or a warrant for the arrest of, a person against whom a complaint is made in writing and sworn to before a person authorized to administer oaths, when the complaint states facts that show that such person violated a criminal law of this state within the jurisdiction of the judge to whom the complaint is presented. The judge may take testimony under oath to determine if there is reasonable ground to believe the complaint is true.
(Emphasis added). The committee notes appended to this rule state that in 1972 the rule was "[a]ltered to incorporate the provision for testimony under oath formerly contained in rule 3.121(a), and authorize the execution of the affidavit before a notary or other person authorized to administer oaths." In Kephart v. Regier, 30 Fla. L. Weekly S182, ___ So.2d ___, 2005 WL 673681 (Fla. Mar. 24, 2005), the court reiterated that the requirements of Rule 3.120, which requires the oath be administered by a person authorized to administer oaths, conforms to the constitutional dictates previously mentioned:
In order to obtain a warrant for an arrest, a law enforcement officer must present a written affidavit or sworn complaint to the committing magistrate demonstrating probable cause to believe that the accused has violated the criminal law of the State. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Fla. R.Crim. P. 3.120. Rule 3.120 conforms to the Fourth Amendment requirement that probable cause be supported by "oath or affirmation" and to the procedural requirements discussed in Gerstein v. Pugh. See art. I, § 12, Fla. Const.
(Emphasis added) (footnote omitted).3
To allow verification under section 92.525 without an oath administered by an individual authorized to administer oaths would essentially vitiate the provisions of Rule 3.120. "It is almost axiomatic that statutes and rules authorizing searches and seizures are...
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