Opinion
No. 2D21-68
06-03-2022
Joan BOURDEAU, Appellant, v. STATE of Florida, Appellee.
David J. Joffe of Joffe Law, P.A., Ft. Lauderdale, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Chelsea N. Simms, Assistant Attorney General, Tampa; and Allison C. Heim, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.
David J. Joffe of Joffe Law, P.A., Ft. Lauderdale, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Chelsea N. Simms, Assistant Attorney General, Tampa; and Allison C. Heim, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.
STARGEL, Judge.
Joan Bourdeau challenges the revocation of her probation after the trial court denied her motion to dismiss pursuant to Mobley v. State , 197 So. 3d 572 (Fla. 4th DCA 2016). Because Bourdeau's probation in the present case expired prior to the violations alleged in the affidavit of violation, we reverse.
Background
In 2013, Bourdeau pleaded no contest to eight misdemeanor counts of obtaining property in return for a worthless check, with each count filed under a separate case number. In each case, she was sentenced to concurrent terms of thirty days in jail, followed by consecutive eleven-month terms of probation.
After the conclusion of her first two probationary terms, Bourdeau's third probationary term, in case number 11-MM-8780, began on April 8, 2015. In February 2016, an affidavit was filed alleging several violations of probation for failure to pay court costs and fees. The trial court issued a warrant for the violations, which was not served until August 2017. Thereafter, on October 25, 2017, that probationary term was revoked and terminated, and Bourdeau's fourth probationary term, in case number 11-MM-8781, began. On September 6, 2018, Bourdeau's probation in case number 11-MM-8781 was terminated early, and her fifth probationary term, in case number 11-MM-8743, began.
On July 12, 2019, an affidavit was filed alleging two violations of condition #4 for committing the offense of driving while license suspended on February 8 and June 8, 2019. Bourdeau filed a motion to dismiss, arguing that due to a tolling error during her probation in case number 11-MM-8780, which affected the timeline of her consecutive probationary terms, her probation in case number 11-MM-8743 had expired, and the trial court lacked jurisdiction over the new violations. The trial court denied the motion, and Bourdeau entered a plea of admission to the violations. This timely appeal follows.
Analysis
Section 948.06(1)(f), Florida Statutes (2015), states, in pertinent part:
Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under [section] 901.02[, Florida Statutes (2015) ], 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.
In Mobley , the Fourth District held that under this version of the statute, a probationary period is not tolled following issuance of a warrant for a noncriminal violation because the statutory language requires that the warrant be issued "under section 901.02," which in turn requires that the warrant be issued for a "crime." 197 So. 3d at 574.
Mobley involved the 2012 version of the statute, which is identical to the version in effect at the time of the violations alleged during Bourdeau's probation in case number 11-MM-8780.
In 2017, the Florida Legislature amended section 948.06(1)(f) to remove the requirement that an arrest warrant must be issued under section 901.02 in order for a probationary period to be tolled pending a ruling on the violation. See ch. 2017-115, § 9, Laws of Fla. However, because this amendment took effect after the expiration of Bourdeau's untolled probationary term in case number 11-MM-8780, the amended version of the statute does not apply here. See Zaborowski v. State , 126 So. 3d 405, 408 (Fla. 2d DCA 2013) (determining that tolling did not apply where section 948.06(1) tolling language was not enacted until after expiration of defendant's untolled probationary period).
Due to a later amendment to the statute, this provision is now contained in subsection (1)(g). See § 948.06(1)(g), Fla. Stat. (2021).
The State concedes that under the applicable version of the statute, Bourdeau's probationary term in case number 11-MM-8780 expired on March 8, 2016. Consequentially, her probationary term in case number 11-MM-8781 expired on February 8, 2017, while her probationary term in case number 11-MM-8743 expired on January 8, 2018—prior to the violations alleged in the present affidavit.
Nevertheless, the State suggests that the delay in adjudicating the violations alleged during Bourdeau's probation in case number 11-MM-8780 could have been attributable to her absconding from supervision, in which case her probation would have been tolled irrespective of Mobley . See Williams v. State , 202 So. 3d 917, 921 (Fla. 4th DCA 2016). We reject this argument because the State raised no such allegation in the proceedings below, and there is nothing in the record suggesting that Bourdeau ever absconded from supervision.
For this reason, we also decline the State's request to specifically instruct the trial court to determine whether Bourdeau absconded from supervision on remand. Cf. State v. Beery , 244 So. 3d 339, 340-41 (Fla. 2d DCA 2018) (remanding for consideration of whether probationer had absconded from supervision where the State had alleged as much in the VOP affidavit); State v. Hicks , 214 So. 3d 701, 701-02 (Fla. 4th DCA 2017) (same).
The State also asserts that even if Bourdeau's probationary term in case number 11-MM-8743 expired prior to the violations alleged in the affidavit of violation, those violations would have occurred during her later probationary term in case number 11-MM-8782. While this observation appears to be correct, there is no indication that Bourdeau has been charged with a violation in that particular case.
To the extent the State suggests that the violations alleged in the present case should simply be "applied" to case number 11-MM-8782, we note that probation cannot be revoked in a case for which no affidavit of violation has been filed. See Nelson v. State , 16 So. 3d 165, 166 (Fla. 2d DCA 2009) ("It is fundamental error to revoke probation in a case when the State fails to allege a violation of probation for that particular case number.").
Accordingly, because Bourdeau's probation in case number 11-MM-8743 expired prior to the violations alleged in the present affidavit of violation, the trial court lacked jurisdiction over those alleged violations. See Ely v. State , 719 So. 2d 11, 12 (Fla. 2d DCA 1998) ("The trial court lacks jurisdiction over alleged violations of probation asserted in an affidavit filed after the expiration of the probationary period."). Therefore, we reverse the revocation of Bourdeau's probation in case number 11-MM-8743 and remand for dismissal of the violation of probation proceedings.
Reversed and remanded.
LaROSE and KHOUZAM, JJ., Concur.