Opinion
Case No. 3D05-818.
Opinion filed March 29, 2006.
An appeal from the Circuit Court for Miami-Dade County, Jose M. Rodriguez, Judge, Lower Tribunal No. 04-32410.
Bennett H. Brummer, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellant.
Charles J. Crist, Jr., Attorney General, and Michael E. Hantman Assistant Attorney General, for appellee.
Before FLETCHER, WELLS, and SUAREZ, JJ.
Alicia Rivera appeals the denial of a petition for writ of prohibition in which she sought to prevent the Honorable Rosa F. Figarola, County Court Judge, from presiding over a contempt proceeding. We treat this appeal as a petition for writ of certiorari, which we grant. See Stambaugh v. State, 891 So. 2d 1136, 1138 (Fla. 4th DCA 2005) (noting that certiorari lies from a circuit court order denying prohibition against a county court).
On March 13, 2002, Rivera pled guilty in county court to possession of less than 20 grams of marijuana, a first degree misdemeanor, was adjudicated guilty, and was ordered to perform 150 hours of community service at a rate of 15 hours a month. On October 30, 2003, over nineteen months later, the court was notified that Rivera had failed to perform any of the community service hours ordered. A bench warrant and show cause order were issued.
Rivera sought to dismiss the show cause order, arguing that the county court's jurisdiction had expired. The motion was denied as was her petition for writ of prohibition in the circuit court.
We agree with Rivera that the trial court lacked jurisdiction to sanction her for failing to perform public service. Section 921.187(1)(a)10 of the Florida Statutes authorizes a court to order public service as one of a number of alternative dispositions in a criminal case:
(1) The alternatives provided in this section for the disposition of criminal cases shall be used in a manner that will best serve the needs of society, punish criminal offenders, and provide the opportunity for rehabilitation.
(a) If the offender does not receive a state prison sentence, the court may:
. . . .
10. Require the offender to perform a specified public service pursuant to s. 775.091.
See also § 948.01(4), Fla. Stat. (2002) (providing that the length of public service ordered may not exceed the length of "the sentence that could have been imposed if the offender had been committed for the offense or a period not to exceed 2 years, whichever is less").
The maximum amount of time to which Rivera could have been sentenced, and thus ordered to perform public service, was one year. See § 893.13(6)(b), Fla. Stat. (2002) (making possession of less than 20 grams of cannabis a misdemeanor of the first degree punishable under sections 775.082 or 775.083); § 775.082(4)(a), Fla. Stat. (2002) (the maximum sentence for a first degree misdemeanor is "a definite term of imprisonment not exceeding 1 year").
Sections 775.091 and 948.031 "indicate that such service is to be considered either as an extra sanction or as an additional condition of probation." State v. Muoio, 438 So. 2d 160, 163 (Fla. 2d DCA 1983); see also State v. Jones, 525 So. 2d 512, 513 (Fla. 4th DCA 1988) (suggesting that on remand "if the court decides to continue the public service requirement, it should be made clear that it is a condition of probation in conformity with section 948.031"); § 948.01, Fla. Stat. (2002) (governing "[w]hen court may place defendant on probation or into community control" and providing for duration of public service program). Since it "has long been the rule that `upon expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation or modification of the probation,'" we agree that the order denying Rivera's motion to dismiss must be quashed. State v. Hall, 641 So. 2d 403, 404 (Fla. 1994) (quoting Carroll v. Cochran, 140 So. 2d 300, 301 (Fla. 1962)); see also § 948.04(2), Fla. Stat. (2002) (stating that "[u]pon the termination of the period of probation, the probationer shall be released from probation and is not liable to sentence for the offense for which probation was allowed").
Accordingly, certiorari is granted and this matter remanded to the circuit court to grant prohibition barring further proceedings against Rivera in this case in the county court.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.