Felton v. State, 5D04-4166.
| Decision Date | 30 December 2005 |
| Docket Number | No. 5D04-4166.,5D04-4166. |
| Citation | 919 So.2d 557 |
| Parties | Arthur Lee FELTON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
Arthur Lee Felton appeals the revocation of his sex offender probation following a finding that he violated four conditions of probation, contending that the failure of the charging affidavit of violation of probation to be sworn to before a person authorized to administer oaths constitutes fundamental error. We disagree and affirm.
On 20 April 2001, Felton was charged by information for sexual battery on a child less than 12 years of age by a person over the age of 18 years in familial authority. Felton entered a plea agreement on 8 April 2002, in which he pled and was adjudicated guilty of lewd and lascivious molestation of a victim less than 12 years of age. On 11 April 2002, the court sentenced Felton to 15 years' imprisonment with the first three to be served immediately, with credit for time served, and ordered the remaining 12 years suspended while he complied with the terms of his probation. Felton was placed on sex offender probation for the ten years following completion of his three-year sentence.
On 30 December 2003, a probation officer filed an affidavit of violation of sex offender probation. Felton was arrested away from his residence for possession of marijuana on 26 December 2003 at 10:44 p.m., violating two conditions of his probation: (1) that he not violate any law and (2) that he comply with a mandatory curfew from 10:00 p.m. to 6:00 a.m. The affidavit was signed "[u]nder penalties of perjury," but was not sworn to before an official authorized to administer oaths. A warrant was subsequently issued for Felton's arrest, but was dismissed on 5 May 2004.
A new affidavit for violation of sex offender probation was filed on 1 July 2004 and was signed "[u]nder penalties of perjury," but not sworn to before a person authorized to administer oaths. The warrant issuing from this affidavit listed six violations of the conditions of Felton's probation. Felton had not paid the costs of his supervision, failed three times to comply with his probation officer's order to register with the Division of Motor Vehicles, and violated two conditions by being arrested outside his home at 3:24 a.m. on 26 June 2004 for giving false information to a police officer.
In testimony before the court, Felton admitted he broke curfew, but stated that he had no bad intentions. The court found that Felton violated four conditions as alleged in the warrant and revoked sex offender probation on 16 November 2004. Felton was sentenced to the remaining 12 years' imprisonment with credit for time served. On appeal, Felton alleges that the charging affidavit was defective because it was not sworn to before a person authorized to administer oaths. This argument was not presented to the court below.
Nevertheless, Felton argues that the sufficiency of the charging affidavit is fundamental, and analogizes to criminal contempt proceedings or cases where probation was revoked for conduct not charged or never reduced to writing. However, his argument is unavailing. Our decision in Smartmays v. State, 901 So.2d 278 (Fla. 5th DCA 2005), is dispositive. There, we held that the failure of the charging affidavit to be sworn to before a person authorized to administer oaths is a technical defect that does not rise to the level of fundamental error.1 Id. at 279.
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