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State v. T.A.K.

Florida Court of Appeals, Second District

March 23, 2018

STATE OF FLORIDA, Appellant,
v.
T.A.K., Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Pinellas County; Patrice W. Moore, Judge.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellant.

          Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Tampa, for Appellee.

          LaROSE, Chief Judge.

         The State appeals an order dismissing T.A.K.'s delinquency case due to the expiration of an earlier imposed probationary term. We have jurisdiction. See Fla. R. App. P. 9.145(c)(1)(A). We affirm.

         Background Facts

         T.A.K. pleaded guilty to the delinquent act of battery. The trial court withheld adjudication of delinquency and placed T.A.K. on six months' probation. The probationary term was to end on October 28, 2016. On September 15, 2016, the State filed an unsworn "Notice of violation of court order, " stating that T.A.K. had failed to comply with his probationary requirements. The State wanted the trial court to hold T.A.K. in contempt for his "fail[ure] to comply with multiple sanctions required by his case manager." The notice specified no material facts underlying the State's request.

         The trial court scheduled an evidentiary hearing for October 25, 2016. T.A.K. was present for that hearing before Judge Moore. However, the parties were unable to proceed because defense counsel represented that he might have a conflict of interest. Consequently, the trial court rescheduled the hearing to October 27, 2016. On October 26, the State filed an unsworn petition seeking to revoke T.A.K.'s probation.

         T.A.K. did not appear at the October 27 hearing. The State stated that, if T.A.K. were present, it was prepared to proceed on the revocation of probation. Nevertheless, because of the approaching October 28 expiration of T.A.K.'s probationary term, the State asked the trial court to extend its jurisdiction beyond October 28. The trial court (Judge Coleman) agreed. Judge Coleman reasoned that T.A.K.'s probationary term had been tolled by the State's filing of the October 26 petition. He also concluded that tolling occurred because the revocation proceeding began at the October 27 hearing, prior to the termination date.

         On January 27, 2017, T.A.K. filed a motion to dismiss the petition due to the expiration of jurisdiction. Following a February 2, 2017, hearing, the trial court (Judge Moore) granted the motion, despite Judge Coleman's earlier ruling to extend jurisdiction.

         State's Argument

         The State raises two arguments. First, the State contends that it properly filed the petition and that revocation proceedings were initiated before the October 28 expiration of probation. Thus, according to the State, the trial court retained jurisdiction. Second, the State argues that the trial court impermissibly considered T.A.K.'s motion to dismiss, as it was in actuality an untimely motion for rehearing. See Fla. R. Juv. P. 8.130(b)(1) (requiring a motion for rehearing "be made within 10 days of the entry of the order being challenged"). We reject the second argument without further comment. We reject the first argument, too; however, we ...


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