Lee v. State , 2010 Fla. App. LEXIS 19816 ( 2010 )

51 So. 3d 1182 (2010)

Teresa LEE, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D10-1912.

District Court of Appeal of Florida, Third District.

December 29, 2010.

Jiulio F. Margalli, Key West, for appellant.

Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

This is an appeal from a judgment and sentence entered on July 7, 2010 upon the revocation of probation for the last of a series of violations of the last of a series of terms of probation first imposed upon the appellant for an offense that occurred on April 19, 1991. The sole issue on appeal concerns the alleged invalidity, under the ex post facto doctrine discussed in Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 1 L. Ed. 648 (1798), of the 2001 amendment to the "tolling" statute, Fla. Stat. § 948.06(1)(d), pursuant to which the trial court retained and asserted jurisdiction over the proceeding. Subsequent to the filing of the brief of appellant, the Supreme Court decided the controlling case of Shenfeld v. State, 44 So. 3d 96 (Fla.2010), which rejected the identical claim, based there on the alleged affect of the 2007 amendment to Fla. Stat. § 948.06(1)(d). Shenfeld was taken on conflict jurisdiction, certified by the Fourth District between its decision in Shenfeld, 14 So. 3d 1021 (Fla. 4th DCA 2009), which the Supreme Court approved, and Harris v. State, 893 So. 2d 669 (Fla. 1st DCA 2005) and Frye v. State, 885 So. 2d 419 (Fla. 1st DCA 2004), which directly involved the 2001 amendment and upon which the appellant primarily relied. While Shenfeld specifically declined to "address the constitutionality of the earlier version of the statute," 44 So. 3d at 102, there is no principled difference in the two statutes as to the legal point in issue. Hence we affirm the judgment and sentence under review on the authority of the reasoning in Shenfeld v. State. See also Palmer v. State, 4D09-3980, 37 So. 3d 977 (Fla. 4th DCA June 23, 2010); Harper v. State, 955 So. 2d 617 (Fla. 5th DCA 2007).

Affirmed.