FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D21-2023
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MELODY MICHELLE BAILEY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the County Court for Bay County.
Shane R. Vann, Judge.
September 7, 2022
ROBERTS, J.
Appellant raises three arguments on appeal. In her first
argument, she contends that the trial court erred by denying her
motion to dismiss the affidavit of violation of probation because the
trial court did not have jurisdiction to rule on it. She claimed that
her probationary period had ended prior to the probation officer
filing the affidavit of violation of probation. Finding merit in this
first argument and that it controls the outcome of the case, we
decline to address Appellant’s other two arguments.
Facts
On April 1, 2020, Appellant was placed on probation for twelve
months. While Appellant was on probation, her probation officer
filed an affidavit with the trial court alleging that she had violated
the terms of her probation. When Appellant’s case came before the
trial court for a hearing on that affidavit, the trial court accepted
Appellant’s plea of no contest, adjudicated her guilty, gave her a
suspended jail sentence, reinstated her probation, and announced
that it was reimposing all her prior probationary terms.
In May of 2021, Appellant’s probation officer filed an affidavit
of violation of probation alleging Appellant violated the terms of
her probation again. On June 30, 2021, Appellant’s case came
before the trial court for a hearing. At the beginning of the
hearing, Appellant’s trial counsel moved to dismiss the affidavit.
Trial counsel argued that Appellant’s probation had expired prior
to the filing of the May 2021, affidavit of violation of probation.
The trial court believed that it had extended Appellant’s probation
when she came before it for the first violation of probation hearing.
Trial counsel argued that the trial court did not extend Appellant’s
probation because it had not announced that it was extending
Appellant’s probation. Trial counsel informed the trial court that
there was controlling authority from two other district courts of
appeal holding that the trial court had to modify or revoke the
probation before it could extend Appellant’s probation beyond the
original probationary term. Even so, the trial court denied the
motion.
Law
The issue on appeal involves statutory interpretation and
application of the law, which are reviewed de novo. Managed Care
of N. Am., Inc. v. Fla. Healthy Kids Corp.,
268 So. 3d 856, 859 (Fla.
1st DCA 2019). Section 948.06, Florida Statutes (2020), states in
relevant part:
(1) . . . .
(g) Upon the filing of an affidavit alleging a violation of
probation or community control and following issuance of
a warrant for such violation, a warrantless arrest under
this section, or a notice to appear under this section, the
probationary period is tolled until the court enters a
ruling on the violation. Notwithstanding the tolling of
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probation, 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.
(2) . . . .
(g) Notwithstanding s. 775.082, when a period of
probation or community control has been tolled, upon
revocation or modification of the probation or community
control, the court may impose a sanction with a term that
when combined with the amount of supervision served
and tolled, exceeds the term permissible pursuant to s.
775.082 for a term up to the amount of the tolled period
of supervision.
Based on the plain language of the statute, a trial court has
the authority, upon revocation or modification of a defendant’s
probation, to extend a defendant’s probationary period for the
period of time her case was tolled. Even though the trial court has
the authority to extend a defendant’s probation beyond the original
probationary term, there is nothing in the statute that
automatically extends a defendant’s probationary period. Instead,
a trial court that wants to extend a defendant’s probationary
period beyond the original probationary term by adding the tolled
period of time may do so only by revoking or modifying the original
term. Cubero v. State,
65 So. 3d 642, 643 (Fla. 2d DCA 2011);
Gonzalez-Ramos v. State,
46 So. 3d 67, 68−69 (Fla. 5th DCA 2010).
In Gonzales-Ramos, the defendant was placed on probation for
two years.
46 So. 3d at 68. The defendant violated his probation
twice prior to the expiration of his probationary term.
Id. Each
time a hearing was held, the defendant was found in violation of
the terms of his probation, and the trial court continued the
defendant’s probation, which is the equivalent of reinstating a
defendant’s probation.
Id. Later, the State alleged that the
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defendant violated his probation once again, but by that time, the
original term of the defendant’s probation had ended.
Id. The trial
court held a hearing on the alleged third violation, found the
defendant guilty, and sentenced him to prison.
Id. On appeal, the
defendant alleged that the trial court lacked jurisdiction to
consider the third affidavit of violation of probation. 1
Id. The State
responded that the defendant’s probationary period had been
extended in accordance with the section 948.06(1) for the amount
of time it took to address the defendant’s first and second violations
of probation.
Id. at 69. The Fifth District Court of Appeal held
that the trial court could have extended the defendant’s
probationary term beyond the original probationary term after the
first and second violations, but failed to do so because it continued
(or reinstated) the defendant’s probation each time.
Id. at 69−70.
Likewise, the defendant in Cubero was serving a term of
probation.
65 So. 3d at 642. The defendant violated his probation
twice prior to the expiration of his initial probationary term.
Id.
Each time the parties came before the trial court for a hearing on
the affidavit of violation of probation, the court modified the terms
of the defendant’s probation, but it did not modify the probationary
term.
Id. After the defendant’s initial term of probation had
expired, the State alleged the defendant violated his probation a
third time.
Id. at 642−43. The trial court sentenced the defendant
on the violation of probation, and on appeal, he alleged that the
trial court lacked jurisdiction.
Id. at 643. The Second District
Court of Appeal held that even though the trial court could have
extended the defendant’s probation beyond the original
probationary term “each of the two times it modified his
probation,” it did not.
Id. Therefore, the trial court did not have
jurisdiction.
Id.
Analysis
1 The third affidavit of violation of probation had been
subsequently amended, but that is not relevant to the analysis.
4
In the instant case, the trial court announced that it was
“reinstating” the terms of Appellant’s probation. 2 Because the
trial court did not indicate any intent to modify Appellant’s
probationary period beyond the original probationary period,
Appellant’s twelve-month probationary period expired prior to the
filing of the May 2021, affidavit of violation of probation. As such,
the trial court did not have jurisdiction to act on it. See § 948.04(2),
Fla. Stat. (2020) (once the term of probation has expired, a
defendant cannot be sentenced for the crime she was placed on
probation for having violated). And because there was precedent
from other Florida District Courts of Appeal, this Court had not
addressed this point of law, and there was no interdistrict conflict,
the trial court should have followed the holdings of the other
district courts. Gartner v. Reverse Mortg. Sols., Inc.,
322 So. 3d
751, 755 (Fla. 1st DCA 2021).
Conclusion
Because the trial court did not have jurisdiction to act on the
violation of probation, we reverse the order finding Appellant
violated her probation and remand for the trial court to vacate
Appellant’s 180-day sentence.
REVERSED and REMANDED.
ROWE, C.J., and KELSEY, J., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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2 Although trial courts often use the term “reinstate”
probation, the statute offers only three options: revocation,
modification, or continuance. See § 948.06, Fla. Stat.
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Russell S. Wilson, Assistant Regional Conflict Counsel, Panama
City; Michael Jerome Titus, Assistant Regional Conflict Counsel,
Tallahassee, for Appellant.
Ashley Moody, Attorney General, Sharon Traxler and Adam B.
Wilson, Assistant Attorneys General, Tallahassee, for Appellee.
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