State v. Hall

Citation641 So.2d 403
Decision Date18 August 1994
Docket NumberNo. 82746,82746
Parties19 Fla. L. Weekly S406 STATE of Florida, Petitioner, v. Dennis Marshall HALL, Respondent.
CourtUnited States State Supreme Court of Florida

Robert A. Butterworth, Atty. Gen. and Charles M. Fahlbusch, Asst. Atty. Gen., Hollywood, for petitioner.

Bennett H. Brummer, Public Defender and Harvey J. Sepler, Asst. Public Defender, Miami, for respondent.

PER CURIAM.

We have for review Hall v. State, 625 So.2d 1310 (Fla. 3rd DCA 1993), in which the Third District Court of Appeal certified the following question as being of great public importance:

WHETHER THE TRIAL COURT COULD CONSIDER NEW CHARGES IN AN AMENDED AFFIDAVIT OF PROBATION VIOLATION WHERE THE ORIGINAL AFFIDAVIT WAS TIMELY FILED, BUT THE AMENDED AFFIDAVIT WAS NOT FILED UNTIL AFTER THE PROBATIONARY PERIOD HAD EXPIRED BECAUSE THE DEFENDANT COMMITTED THE ALLEGED VIOLATION AT, OR NEAR, THE END OF HIS PROBATION PERIOD?

625 So.2d at 1311. We have jurisdiction, 1 and answer the question in the negative.

On November 6, 1991, Dennis Marshall Hall was convicted of trafficking and possession of cocaine and was placed on one year's probation. On October 27, 1992, the State filed an affidavit of probation violation charging Hall with violations of various technical conditions of his probation. On November 5, 1992, the last day of his term of probation, Hall was arrested for the sale of a controlled substance within 1,000 feet of a school. After the expiration of the probationary period, the State filed an amended affidavit charging Hall with, in addition to the violations charged in the original affidavit, failure to live and remain at liberty without violating the law due to the November 5 offense. After a hearing, the trial court revoked Hall's probation and sentenced him to seven years in prison. On appeal, the district court affirmed the probation revocation based on the technical violations, but struck the finding of violation based on the substantive offense, "because that charge was contained in an untimely filed amended affidavit of probation violation." 625 So.2d at 1311.

It has long been the rule that

upon expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation or modification of the probation pursuant to Section 948.06, F.S.

Carroll v. Cochran, 140 So.2d 300, 301 (Fla.1962) (alteration in original) (quoting State ex rel. Ard v. Shelby, 97 So.2d 631, 632 (Fla. 1st DCA 1957)). See also Rodriguez v. State, 511 So.2d 444 (Fla. 2d DCA 1987); Brooker v. State, 207 So.2d 478 (Fla. 3d DCA 1968). The State recognizes that this rule has been consistently applied to preclude consideration of new violations charged in an amended affidavit filed after the period of probation has expired. See, e.g., McPherson v. State, 530 So.2d 1095 (Fla. 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 amended affidavit of probation violation when the newly charged violations occur at or near the end of the probationary term. We decline to do so.

The pertinent language contained in sections 948.04(2) and 948.06(1), Florida Statutes (1991), is substantially the same as the statutory language upon which the jurisdictional rule was first based. See Shelby, 97 So.2d at 632 (relying on 1957 version of section 948.04); Brooker v. State, 207 So.2d 478, 479 (Fla. 3d DCA 1968) (relying on 1967 version of both provisions). Section 948.04(2) provides:

Upon the termination of the period of probation, the probationer shall be released from probation and is not liable to sentence for the offense for which probation was allowed.

Consistent with this pronouncement, section 948.06(1), which deals with revocation and modification of probation, is triggered when "within the period of probation" there are reasonable grounds to believe that a condition of probation has been violated in a material way. This Court agreed that these provisions are jurisdictional in Carroll v. Cochran, 140 So.2d at 301. Although there have been various amendments to sections 948.06(1) and 948.04(2) throughout the years, 2 there has been no legislative response to our opinion in Carroll or to the subsequent district court opinions holding that a court lacks jurisdiction to consider new allegations contained in an untimely amended affidavit. Because the legislature has failed to make any substantive changes to the pertinent statutory language, we must assume that it has no quarrel with these holdings. See White v. Johnson, 59 So.2d 532, 533 (Fla.1952) (legislative inaction can be taken as an indication of legislature's acceptance of prior construction of statute).

Moreover, we can find no authority in chapter 948 that would allow a court to consider untimely charges of probation violation simply because the alleged violations occur at or near the end of the probationary period. Thus, even if we were to accept the State's position and hold that the court in this case had jurisdiction to consider the new charges of violation because the original charges were pending, the jurisdictional anomaly would still exist. For example, where no affidavit is pending, the court still would lack jurisdiction to consider violations that occur at the end of the term but that cannot be charged before the probationary term ends.

We share the district court's concern that in most cases a probationer who commits a crime on the last day of the probationary period cannot be found to have violated probation, under the current statutory scheme. However, under the circumstances, it is the legislature that must address the problem.

Accordingly, we approve the decision below and answer the certified question in the negative.

It is so ordered.

GRIMES, C.J., and SHAW, KOGAN and HARDING, JJ., concur.

OVERTON, J., dissents with an opinion, in which McDONALD, Senior Justice, concurs.

OVERTON, Justice, dissenting.

I dissent. I do not believe that a probationer who commits a probation violation "within the period of probation" may escape any punishment for the violation if the law enforcement authority does not file a probation violation petition or have the probationer arrested within the period of probation. Section 948.06(1), Florida Statutes (1993), provides:

Whenever within the period of probation or community control there...

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