final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Bernard I. Bober, Judge; L.T. Case No.
Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior Assistant Attorney General, West Palm
Beach, for appellant.
Haughwout, Public Defender, and Stacey Kime, Assistant Public
Defender, West Palm Beach, for appellee.
ON MOTION FOR REHEARING AND MOTION FOR
defendant has filed a motion for rehearing and a motion for
clarification of our instructions on remand. We grant the
motion for rehearing and motion for clarification, withdraw
our prior opinion, and substitute this opinion in its place.
State appeals the court's order dismissing an affidavit
charging the defendant with violations of probation
("VOP") for lack of subject matter jurisdiction.
The court concluded that it lost jurisdiction at the time the
probationary period expired, which occurred prior to service
of the warrant for the VOP. The State argues that because the
VOP affidavit and warrant alleged that the defendant
absconded, and the warrant issued while he was still serving
probation, his probationary term was tolled. The defendant
concedes that the State is correct but argues the State's
argument was not preserved. We agree with the State, find the
argument was properly preserved, and reverse.
defendant pled no contest to charges of tampering with
evidence, possession of cannabis, resisting officer without
violence, and possession of drug paraphernalia. He was
sentenced to time served on the resisting arrest and
possession of drug paraphernalia counts, the court withheld
adjudication on the tampering with evidence and possession of
cannabis counts, and he was placed on probation. The parties
agree that his original probationary term was set to expire
on February 28, 2015.
to the expiration of the original probationary term, the
defendant failed a drug test, failed to report, and
absconded. He pled to a violation of probation and the
probationary term was reinstated, modified, and extended to
June 30, 2016.
months before the expiration of the extended probationary
period, the State filed a VOP affidavit stating that the
defendant: (1) failed to report; (2) absconded or changed his
residence without first procuring the consent of the
probation officer; (3) failed to pay the State of Florida
toward the cost of supervision; (4) failed to make court
costs payments; and (5) failed to make Drug Fee payments. A
warrant was issued on February 24, 2016, but not served until
the defendant self-surrendered on August 16, 2016-after the
expiration of the extended probationary period.
upon Mobley v. State, 197 So.3d 572 (Fla. 4th DCA
2016), the defendant argued to the court that it lost
jurisdiction over the VOP when the extended probationary
period expired on June 30, 2016. In response, the State
argued that "failing to report and absconding . . . the
absconding could be considered a new crime." The court
agreed with the defendant and, citing Mobley,
concluded that the signing of the warrant did not toll the
appeal, the State argues that the affidavit charging the
defendant with absconding tolled his probationary term until
he was returned to supervision. In support, the State relies
upon Williams v. State, 202 So.3d 917 (Fla. 4th DCA
2016). In Williams, we provided a detailed analysis
of Mobley and distinguished it, holding that
"Mobley is inapplicable here because, unlike in
Mobley, the VOPs in this case ultimately alleged
that, during the defendant's probation term, he had
absconded from supervision, culminating with the allegation
that his 'current whereabouts is unknown.'"
Id. at 920. Williams held "when a
probationer absconds from supervision, the probationary
period is tolled until the probationer is once more placed
under probationary supervision." Id. at 920-21.
Williams, in this case the VOP alleged that the
defendant absconded, which was an independent basis for
tolling the probationary period. The defendant does not
dispute this conclusion. Instead, he argues that the State
failed to preserve the argument. We find the issue was
properly preserved. Here, the VOP affidavit and warrant both
charged the defendant with "ABSCONDING." Further,
at the hearing, the State highlighted the absconding charge.
These actions were sufficient to bring the issue to the
attention of the court. Therefore, the issue was preserved.
State charged the defendant with a VOP, including a charge
that he absconded. Consistent with Williams, we
reverse to allow the circuit court to determine if the
defendant did abscond from probationary supervision as
alleged in the State's VOP affidavit. If the circuit
court determines that the defendant did abscond, which it may
find but is not required to find, then the probationary term
was tolled ...