Frye v. State
| Decision Date | 18 October 2004 |
| Docket Number | No. 1D04-0559.,1D04-0559. |
| Parties | Damien FRYE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
Charles J. Crist, Jr., Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
Damien Frye appeals an order revoking his probation. We reverse, because the trial court's order is based on charges contained in an amended affidavit filed after Appellant's probationary period ended.
Appellant was sentenced to probation in 2000. Effective July 1, 2001, section 948.06(1), Florida Statutes, was amended to provide in part:
Upon 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. Notwithstanding the tolling of probation as provided in this subsection, the court shall retain jurisdiction over the offender for any violation of the conditions of probation or community control that is alleged to have occurred during the tolling period. The probation officer is permitted to continue to supervise any offender who remains available to the officer for supervision until the supervision expires pursuant to the order of probation or community control or until the court revokes or terminates the probation or community control, whichever comes first.
Ch.2001-109, Laws of Florida. On September 24, 2001, an affidavit was filed alleging Appellant violated conditions of his probation by failing to perform 50 hours of community service and by failing to receive substance abuse evaluation, counseling and treatment. The warrant for violation of probation was executed on October 20, 2001. An amended affidavit for violation of probation was filed on June 5, 2002, with the added allegation that appellant violated probation by forging two checks between May 16, 2000, and May 31, 2000,1 and by failing to appear before the court on March 28, 2002. A second amended affidavit was filed on June 26, 2003, alleging appellant violated probation by unlawfully possessing a controlled substance without prescription and by providing false identification to a law enforcement officer on June 13, 2002.
Appellant moved to dismiss the second amended affidavit on the ground of lack of jurisdiction. Appellant argued his probationary term expired prior to the filing of the second amended affidavit and that the amended version of section 948.06 was not applicable. The trial judge denied the motion to dismiss. Appellant then entered a plea of no contest to allegation three of the second amended affidavit of violation of probation (regarding the May 2000 check charges), reserving his right to appeal the denial of his motion to dismiss.
Appellant's underlying offenses were committed on October 29, 1999. Retroactive application of the amendments to section 948.06 enacted in chapter 2001-109 violates constitutional ex post facto principles. As the United States Supreme Court has observed:
The presumption against the retroactive application of new laws is an essential thread in the mantle of protection that the law affords the individual citizen. That presumption "is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic." Landgraf v. USI Film Products, 511 U.S. 244, 265, 114 S.Ct. 1483, 1497, 128 L.Ed.2d 229 (1994). This doctrine finds expression in several provisions of our Constitution. The specific prohibition on...
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