A Look at Probation and Community Control Revocation Proceedings in Light of Boyd and F.S. §901.02(1)
The past two years have seen action from both the state legislature and the Florida courts that, in effect, have defined and then changed how the criminal law practitioner, both defense and prosecutor, should argue the jurisdictional defense in violations of probation and community control proceedings.1
The legislative action relates directly to the attempts by the district courts and Supreme Court of Florida to interpret and define exactly how a court can capture jurisdiction so that it may violate a probationer. This article attempts to identify how the courts define the revocation process, what the legislature has done to change it, and how those practicing criminal law may argue that the court has or does not have jurisdiction to violate a probationer in light of those definitions and changes.
Perhaps the single most important word to the lawyer is “jurisdiction.” On that word alone rests the foundation by which all lawsuits, criminal and civil, rise and fall. Without it, our client does not get in the front door of the courthouse. Without it, the government cannot prosecute our client for a given crime.
In criminal proceedings, nowhere is the concept of jurisdiction more important than in probation revocation cases. First, the government does not have to prove the probationer guilty by the traditional “beyond a reasonable doubt” standard. Rather, the standard of proof in revocation proceedings is akin to that of a civil trial: by the greater weight of the evidence.2 Second, there is no jury trial in probation revocation proceedings. Third, the probationer has only a limited constitutional (federal and state) right to remain silent.3 Thus, the nature of the proceedings makes it incumbent upon the criminal defense practitioner to hold the government and the court to the technical and substantive requirements for capturing jurisdiction in probation revocation proceedings. Quite often, it is only the lack of jurisdiction argument presented in a motion to dismiss that can save a client from a lengthy jail or prison sentence.
Revoking Probation Under F.S. §948.06(1)
F.S. §948.06(1) defines the process by which a defendant’s probation can be violated:
(1). . . Any committing magistrate may issue a warrant, upon the facts being made known to him or her by affidavit of one having knowledge of such facts, for the arrest of the probationer, returnable forthwith before the court granting such probation or community control. Any parole or probation supervisor, any officer authorized to serve criminal process, or any peace officer of this state is authorized to serve and execute such warrant.
Absent compliance with the procedure set forth in the statute, a court is without jurisdiction to violate probationer. State ex rel. Ard v. Shelby, 97 So. 2d 631 (Fla. 1st DCA 1957).4
A court lacks jurisdiction to revoke probation for a violation that occurs within the period of probation, “unless the revocation process is set in motion during the probationary period.” Hoffman v. State, 729 So. 2d 421 (Fla. 1st DCA 1999).5 This revocation process or procedure as outlined by statute and defined by case law has two requirements. First, an affidavit of violation must be filed within the probationary period. Fryson v. State, 559 So. 2d 377, 378 (Fla. 1st DCA 1990).6 Second, a warrant must be issued for the probationer’s arrest within the probationary period. State v. Boyd, 717 So. 2d 524 (Fla. 1998).
An Old Opinion Revisited
It is the seminal case of Boyd which provided fertile ground for the defense attorney to argue, successfully, certain motions to dismiss based on lack of jurisdiction. In Boyd, the probation officer signed an affidavit alleging that Boyd had violated his probation approximately two and half weeks before the term of probation was set to expire. Then, the trial judge signed the arrest warrant in a timely manner. Both the affidavit and the warrant were filed two days after Boyd’s probation expired. The Supreme Court of Florida, in affirming the decision of the First District Court of Appeal, determined that the revocation process was properly set in motion when an affidavit was timely filed and the warrant was issued.7
The court reached its decision by reasoning that a warrant was “issued” not when the judge had signed it, as the government had argued, but rather when the signed warrant was delivered to the sheriff’s office for execution. holding that an arrest warrant is issued only upon signature and delivery to the sheriff, the high court chose to follow the 70-year-old opinion of their predecessors as stated in Dubbs v. Lehman, 100 Fla. 799, 130 So. 36 (Fla. 1930).8 Boyd further explained that time stamping of the warrant by the sheriff’s office on the date delivered, although not required, would have been the preferred procedure.
The government had relied on its interpretation of F.S. §901.02 (1991) to argue Boyd. At the time, the statute read: “A warrant may be issued for the arrest of the person complained against if the magistrate, from the examination of the complainant and other witnesses, reasonably believes that the person complained against has committed an offense within his jurisdiction.”
agreeing with defense arguments in the Boyd case, the court explicitly rejected the government’s interpretation of F.S. §901.02 (1991), and instead chose to uphold Dubbs.
The Boyd decision gave defense attorneys a clear avenue to attack the jurisdiction of the court. In misdemeanor cases, where the maximum period of probation is one year, defendants were able to benefit from the length of time it took to set the revocation process in motion. Beginning with the filing of an affidavit of violation, that piece of paper would travel next to the magistrate’s desk, then to the clerk of the court, and finally to the sheriff’s office for execution. This process took time. Where probation officers filed affidavits close to or on the date of expiration, it would be virtually impossible to comply with the requirements set forth in Boyd. Had a criminal defense attorney been following the law at the time, a quick search in the court file for the delivery date of the warrant would easily reveal whether the court had captured jurisdiction. For reasons that amount to mere speculation, this delivery often never took place or took place late. Thus, a ready-made defense was created for the client.
Motivated perhaps by the frustration of the revocation process and the majority’s reliance on Dubbs, Judge Mickle wrote a well-reasoned dissent in the case below. Boyd v. State, 699 So. 2d 295 (Fla. 1st DCA 1997). In disagreeing with the majority, Judge Mickle’s dissent hinged on his perception that the term, “issuance” as defined by Dubbs was inapplicable to the facts of Boyd. The Supreme Court in 1930 defined when an arrest warrant shall issue in the context of when a prosecution would commence for the purpose of statute of limitations. Judge Mickle wrote, “The precise holding in Dubbs was that a prosecution does not commence for the purpose of the statute of limitations until an arrest warrant is issued, that is, until the warrant is executed by the committing magistrate and delivered to a proper executive officer for execution. However, in the context of initiating the procedure for revoking probation or community control, where all that is required is that the revocation process be set in motion, issuance of a warrant effectuated when the warrant is signed by the judge.”9
Thwarted: §901.02(1) as Amended
Ultimately, Judge Mickle’s interpretation about the state of law would be adopted by the state legislature. While the district court and Supreme Court were correct in their affirmance of Dubbs, the legislature decided to change the point at which an arrest warrant shall issue. This legislative change would fall in line with Judge Mickle’s perceived intent of Wimberly, Fryson, and the applicable statutes.
During the 1999 legislative session, Florida lawmakers passed 1999 Fla. Laws ch. 169, to become effective July 1, 1999. This chapter amended F.S. §901.02(1) (1997), which overruled the 70-year-old judicially accepted definition of when an arrest warrant is considered issued as set forth in Dubbs and as affirmed by Boyd.10 In the process, the amendment negated a defense founded upon jurisdictional defects during the course of revocation proceedings.
Before the legislature added an additional sentence to F.S. §901.02(1), the criminal defense attorney often could allege successfully that a court was without jurisdiction to violate the defendant based on noncompliance with the warrant requirement of Boyd and F.S. §948.06(1). For example, assume that the probation officer timely filed a sworn affidavit of violation on the 175th day of a 180-day probationary sentence. Then, assume that the court signed the warrant for the probationer’s arrest on the 178th day. If that warrant was not delivered to the sheriff of the respective county until the 181st day, the court would be divested of jurisdiction to violate the defendant. Only when the warrant was signed by a judge and then delivered to the sheriff’s office was the warrant considered “issued.”11 As a result of the amendment, F.S. §901.02(1) now reads:
A warrant may be issued for the arrest of the person complained against if the magistrate, from the examination of the complainant and other witnesses, reasonably believes that the person complained against has committed an offense within the magistrate’s jurisdiction. A warrant is issued at the time it is signed by the magistrate.”
The amendment has effectively taken away the “delivery” requirement of the signed arrest warrant and streamlined, somewhat, the procedure for setting the revocation process in motion.
The language of the amendment does not indicate whether or not it is to be applied retroactively. However, the First District Court of Appeal in McNeal v. State, 741 So. 2d 1205 (Fla. 1st DCA), seemed to indicate that the law change would only apply to future cases. In its per curiam opinion, the court cited to the staff analysis of the amendment, which read:
The first amendment [to §901.02] changes this result in future cases by providing that the revocation process begins when a warrant is signed by a judge. Thus, a defendant’s probation could be revoked if the judge signs the warrant before the term of probation expires even if it is not delivered to the sheriff to be executed until after the probationary period has ended.12
Is the Amendment Retroactive?
The Second District Court of Appeal has since agreed with and cited to McNeal in the case of Slingbaum v. State, 751 So. 2d 89 (Fla. 2d DCA 2000). However, the two opinions may still leave criminal defense practitioners with some questions about the applicability of the amendment in certain cases. For example, in a case where a defendant was placed on probation before July 1998, but violated post-amendment, would the arrest warrant still need to be delivered to the sheriff so that the court may capture jurisdiction? A plain reading of the limited case law would seem to indicate that the answer would be “no.” No matter when a defendant was placed on probation, if the government now seeks to revoke probation, the “delivery” requirement would no longer apply.
A second scenario, and one that is more likely to occur, is a situation where the affidavit of violation was filed within a few days of the amendment’s effective date of July 1, 1999, and the judge signed the arrest warrant after that date. Is the magistrate’s signature sufficient or must the warrant be delivered to the sheriff, since the revocation process was begun before the law changed? Unfortunately, there is no answer to that particular set of facts; at least, no district court has written an opinion addressing that issue. However, one might find direction in the case of Tatum v. State, 736 So. 2d 1214 (Fla. 1st DCA 1999), a First District opinion. Tatum clarified the holding of the Boyd court by stating, “As the Supreme Court’s answer to the question posed by this court in Boyd clearly establishes,13 when the affidavit alleging a violation of probation is filed is legally irrelevant; the determinative event for purposes of the revocation process is delivery of the arrest warrant for execution.” The Tatum court was speaking about the “issuance” of a warrant as the determinative event. Since delivery of the warrant is no longer the law in Florida, it can be concluded that the signing of the warrant is now the determinative event. If the warrant can be signed or issued in a timely manner post-amendment, one could argue that the warrant need not be delivered to the sheriff, even if the revocation process begun before July 1. Still, no appellate court has ruled on this exact issue so the question remains unsettled.
Conclusion
In the end, the criminal defense attorney and the prosecutor must continue to be extremely sensitive to the calendar when litigating violation of probation cases. Always pay attention to the date the client was placed on probation and how much time served they were given credit for.14 Usually, these two factors will decide the last day the government has to set the revocation process in motion.
Almost as crucial to this calculus are the dates the affidavit was filed and the warrant signed by the judge. Quite often, and usually in felony cases, there are long periods of time for jurisdictional requirements to be met. At a minimum, these types of cases demand that the zealous advocate hold the government and the courts to the strict technical requirements as set forth in statute and legal precedent. Similarly, attorneys who represent the government must make certain the court has the ability to violate the probationer. The alert prosecutor should be aware, in every case, of the amount of time served (both on probation and in custody) and the maximum allowable sentence for the underlying offense.15
1 For the purposes of this article, both a defendant on probation and a defendant on community control will be referred to as “the probationer.”
2 Young v. State, 739 So. 2d 635 (Fla. 2d D.C.A. 1999).
3 State v. Heath, 343 So. 2d 13 (Fla. 1977); and Cassamassima v. State, 657 So. 2d 906 (Fla. 5th D.C.A. 1995).
4 See Carroll v. Cochran, 140 So. 2d 300 (Fla. 1962).
5 See Hopson v. State, 339 So. 2d 1152 (Fla. 2d D.C.A. 1976); Gardner v. State, 412 So. 2d 10 (Fla. 2d D.C.A. 1981); Fryson v. State, 559 So. 2d 377 (Fla. 1st D.C.A. 1990); Davis v. State, 623 So. 2d 579 (Fla. 3d D.C.A. 1993); and State v. Hall, 641 So. 2d 403 (Fla. 1994).
6 See Jett v. State, 722 So. 2d 211 (Fla. 1st D.C.A. 1998).
7 State v. Boyd, 717 So. 2d at 525.
8 The defendant, Dubbs, brought a habeus corpus proceeding, when a warrant was issued for his arrest outside the statute of limitations. Justice Buford, writing for a unanimous court, held, “A magistrate may not issue a writ by merely writing out the same in legal form and executing it, or putting it away amongst his papers, but for the writ to be issued, it must be executed and placed in motion by delivery to the proper executive officer.”
9 Judge Mickle also disagreed with the majority’s interpretation and application of State v. Wimberly, 574 So. 2d 1216 (Fla. 2d D.C.A. 1991) (In Wimberly, the probationer had moved to dismiss based on untimely filing of the affidavit of violation. However, in reversing the court below, the Second District held that the judge had signed and issued an arrest warrant.). The opinion does not make clear whether a magistrate’s signature is all that is required for a warrant to issue. See also Fryson v. State, 559 So. 2d 377 (Fla. 1st D.C.A. 1990). Fryson is factually similar to Wimberly and equally vague as to what the term “issue” means.
10 The holding of Boyd that timely filing of the affidavit and issuance of the warrant are conditions precedent to capturing jurisdiction remains good law.
11 Dubbs v. Lehman, 100 Fla. 799, 130 So. 36 (Fla. 1930).
12 Fla. H.R. Comm. on Law Enf. And Crime Prev., CS for SB 11 (1999) Final Analysis (June 14, 1999) (on file with committee).
13 In Boyd v. State, 699 So. 2d 295, 298 (Fla. 1st D.C.A. 1997), the First District certified the following question as one of great public importance: “When an arrest warrant is signed by a judge based upon an affidavit alleging a violation of probation or community control, is delivery of the warrant to the appropriate county sheriff for execution a necessary condition precedent to commencement of the revocation proceeding for the purpose of determining whether the proceeding has been commenced before the expiration of the term of probation or community control?”
14 Francois v. State, 695 So. 2d 695 (Fla. 1997) (The court held that upon revocation of probation, credit must be given for time previously served on probation toward any newly imposed probationary term for the same offense, when necessary to ensure that the total term of probation does not exceed the statutory maximum for that offense.).
15 Bragg v. State, 644 So. 2d 586 (Fla. 1st D.C.A. 1994).
Jason P. Herman practices criminal defense in Orlando with Longwell & Cairnes, P.A. Mr. Herman received his B.A. in political theory from the University of New York at Albany, and his J.D. from the University of Miami School of Law.
This column is submitted on behalf of the Criminal Law Section, Harvey J. Sepler, chair, and Randy E. Merrill, editor.
