Warrantless VOP Arrest Does Not Toll Probation For Offenses
E.D.S. admitted her VOP on March 24, 2009, and, at the same time, pled no contest to a new charge of possession of cocaine for which she was arrested on January 19, 2009. The State was seeking five years in prison on the combined charges.
E.D.S. retained Attorney Jeffrey H. Garland on April 1, 2009, to consider whether there was a better way to deal with the problem. On the following day, Attorney Garland filed two motions directly challenging both the probation violation and the new charge of possession of cocaine.
On May 15, 2009, the State conceded that there was a lack of subject matter jurisdiction as to the VOP, and that the evidence for the new possession of cocaine arrest did not warrant prosecution. Based upon these circumstances, the admission to the VOP warrant was set aside and dismissed; the no contest plea to the new possession of cocaine was set aside, and the charge nolle prosequied.
What happened in this case? Attorney Garland determined that E.D.S.’s probationary offense had taken place on June 15, 2005, in that she had been placed onto probation on April 26, 2007. The Legislature amended the probationary statute, Section 948.06(1)(d), to allow tolling upon a warrantless arrest. This amendment became effective on June 20, 2007.See Ch. 2007-210, §5, Laws of Florida. Garland reasoned that this amendment was a substantive change in the law which could not be applied retroactively to E.D.S. Garland concluded that the Court lacked subject matter jurisdiction, because the probation had terminated without the issuance of a VOP warrant. For offenses occurring before June 20, 2007, the law required both a VOP affidavit and a VOP warrant before the probation would be tolled.
Garland argued that the plea in the new possession case be set aside, because the Defendant did not know that the Court was without subject matter jurisdiction as to the VOP, and that there were strong defenses to the new charge of possession of cocaine. The SUV being driven by E.D.S. was stopped without reasonable suspicion of criminal activity. After the stop, there was a consensual search of the vehicle which uncovered a single small “rock” which was found on the floor near the console. While E.D.S. was the only occupant of the SUV at the time of the stop, the SUV was a work truck used by employees. The arrest occurred at night when seeing a small “rock” on a dirty floor in dim light might be impossible for all but the most eagle-eyed law enforcement officer.
All individuals placed on probation before June 20, 2007, may benefit from these jurisdictional arguments. The current practice is for a law enforcement officer to arrest a probationer on “probable cause” without bothering to obtain a VOP warrant. If the probationary term ended before a VOP warrant issued, then the Court loses subject matter jurisdiction to conduct VOP proceedings. To assist readers of this website, I have posted a copy of the Memorandum of Law, omitting only the exhibits.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS VOP WARRANT FOR LACK OF SUBJECT MATTER JURISDICTION AND BECAUSE OF DOUBLE JEOPARDY BAR/REQUEST FOR JUDICIAL NOTICE OF COURT FILE
The Defendant, E.D.S., through her undersigned counsel, files this Memorandum of Law in Support of her Motion to Dismiss VOP Warrant for Lack of Subject Matter Jurisdiction and Because of Double Jeopardy Bar/Request for Judicial Notice of Court File:
|06/15/05||Original arrest for sale and possession of cocaine in Case No. 562005CF002481.|
|02/02/06||Sentenced to 36 months DOC, concurrent, on each of the sale and possession of cocaine charges.|
|04/03/06||Sentence reduced to 18 months DOC, concurrent on both counts, followed by 18 months of concurrent probation on both counts|
|04/26/07||Agreed order modifying sentence, which provided, in part, that Defendant “shall immediately begin serving the probationary portion of the sentence imposed on April 3, 2006…”. Excerpt is attached as Exhibit A.|
|06/20/07||Chapter 2000-210, §5, Laws of Florida, becomes effective. It amends inter alia §948.06(1)(d) by adding the phrase “a warrantless arrest under this section, or a notice to appear under this section” as grounds to toll probation. A copy of Ch. 207-210 is attached as Exhibit B.|
|09/09/08||Probable cause (PC) arrest for violation of probation (VOP) for possession of drug paraphernalia and possession of cocaine. A copy is attached as Exhibit C.|
|The “new arrests” were initially assigned St. Lucie County Case No. 562008CF003646. The State filed a No Information in the felony case on September 26, 2008, and transferred the misdemeanor to St. Lucie County Case No. 562008MM004298. The State filed a Nolle Prosequi of this misdemeanor on April 23, 2009.|
|09/10/08||At first appearance on the VOP in Case No. 562005CF002481, the Defendant is held with “no bail”. Exhibit D.|
|09/12/08||A Violation Report is prepared by DOC Probation Officer (P.O.) Kenneth Baker. The St. Lucie County Clerk of Court records do not show that this Violation Report was never filed in Case No. 562005CF002481. This Violation Report is not sworn to. A copy of this Violation Report was obtained from the State through discovery in Case No. 562005CF002481 and is attached as Exhibit E.|
|09/15/08||VOP Affidavit is sworn to by P.O. Baker. It alleges a violation of condition 2 by failing to make cost of supervision (COS) payments and two condition 5 violations for possession of a controlled substance and possession of drug paraphernalia arising out of the 09/09/08 arrest. The St. Lucie County (SLC) Clerk of Court records do not show that this Affidavit was filed with the Court. A copy of the Affidavit was obtained through discovery from the State and is attached hereto as Exhibit F.|
|10/01/08||Bail is set at $20,000.00 on the VOP. Exhibit G. Defendant bonds out of jail. Exhibit H. The period of tolling of probation supervision ends. Under the terms of §948.06(1)(d), Defendant was not “available to the officer for supervision” while incarcerated from 09/09/08 until her release on 10/01/08.|
|10/25/08||18 months of probation ends, except that the probation supervision was extended during the period of incarceration from 09/09/08 – 10/01/08.|
|11/16/08||18 months probation ends, if it was extended for time in jail from 09/09/08 – 10/01/08.|
|01/17/09||Defendant arrested for new offense of possession of cocaine. There is no PC arrest for a new VOP based upon the 01/17/09 arrest. A copy of the Arrest Affidavit for the substantive offense is attached as Exhibit I.|
|01/21/09||P.O. Baker writes letter to Judge Schack. The letter was received by Judge Schack’s office on January 23, 2009, and filed with the Clerk on January 27, 2009. A copy of this letter is attached as Exhibit J. This letter admits that no VOP warrant had issued alleging violations for the 09/09/08 arrests. Specifically, the letter states: “I am also submitting an initial warrant for violation of probation since no warrant was submitted in reference to the September 9, 2008 violation of supervision.” This letter was submitted to Judge Schack along with an Addendum to Violation Report dated 09/12/08 (see below).|
|01/21/09||Addendum to Violation Report dated 09/12/08 is prepared by P.O. Baker. This document is not sworn to and does not constitute an affidavit. The Addendum was filed with the St. Lucie County Clerk of Court on January 27, 2009. There is attached to the Addendum a 1-page Affidavit alleging a single condition 5 violation resulting from the 01/17/09 arrest. A copy of the Addendum, with the 1-page Affidavit, is attached as Exhibit K.|
|01/27/09||Judge Schack signs a VOP Warrant alleging a single violation of condition 2 as of 09/12/08, two violations of condition 5 resulting from arrests on 09/09/08, and a condition 5 violation resulting from an arrest on 01/17/09. A copy of the VOP Warrant is attached as Exhibit L.|
|01/27/09||Defendant is arrested in open Court on the VOP warrant. A copy of the Arrest Affidavit is attached as Exhibit M.|
|01/28/09||Defendant appears for first appearance for the VOP arrest. Defendant is held with “no bail”. A copy of the First Appearance Form is attached as Exhibit N.|
|03/24/09||Amended VOP Affidavit is filed with the SLC Clerk of Court. Exhibit O. This Affidavit appears as a 2-page document in the discovery obtained from the State (pages 23 – 24) and appears as a 2-page document in the Clerk’s records when filed on 03/24/09. The entire document was not, however, attached to the Addendum filed with the Clerk on 01/27/09.|
|03/24/09||Defendant admits VOP in Case No. 562005CF002481 and pleas no contest to possession of cocaine charge in Case No. 562009CF000191.|
|04/02/09||Defendant files Motion to Dismiss VOP Warrant for Lack of Subject Matter Jurisdiction and Because of Double Jeopardy Bar.|
|The Defendant respectfully requests judicial notice of the Clerk’s records in Case No. 562005CF002481 pursuant to Section 90.202(6), Florida Statutes.|
|CH. 2007 – 210, §5 IS EX POST FACTO BOTH TO DEFENDANT’S COMMISSION OF CRIME AND IMPOSITION OF PROBATION AND CANNOT BE APPLIED RETROACTIVELY TO DEFENDANT’S CASE|
Defendant’s underlying offense in Case No. 562005CF002481 took place on June 15, 2005. The most recent order modifying her sentence was entered on April 26, 2007. Chapter 2007-210, §5, Laws of Florida, went into effect on June 20, 2007. Chapter 2007-210, §5 amended Section 948.06(1)(d) to allow tolling upon a warrantless arrest. The modification is shown in Chapter 2007-210, §5 as follows: (d) Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under S. 901.02, a warrantless arrest under this section, or a notice to appear under this section, the probation period is tolled until the court enters a ruling on the violation. Notwithstanding the tolling of probation as provided in this section, 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.
(Italicized and underscored in original). In the just quoted excerpt, the italicized portion is added by the statutory amendment. The underscored portion is eliminated. As can be seen, therefore, there was no authority to toll probation upon a warrantless arrest before the June 20, 2007 effective date of this amendment. To place this issue in context, it must be remembered that State v. Boyd, 717 So.2d 524 (Fla. 1998), held that tolling did not occur under the statute in effect at that time until delivery of the warrant to the sheriff for execution. The legislature amended this provision to commence tolling of probation upon execution of the warrant by the judge. The question arose whether this amendment could be applied retroactively to offenses arising before July 1, 2001.
Frye v. State, 885 So.2d 419 (Fla. 1st DCA 2004), held that the 2001 tolling revision could not be applied retroactively to cases arising before its effective date. Frye observed “retroactive application of the amendments to Section 948.06 enacted in Chapter 2001-109 violates constitutional ex post facto principles”. Id at 420. Frye found that the retroactive application of the amendment “clearly disadvantaged” the appellant and that, therefore, the amended affidavits were untimely filed. Frye cited both federal and state precedent for its holding. Id. See Landgraf v. USI Film Products, 114 S.Ct. 1483, 1497 (1994); United States v. Winstar Corp, 116 S.Ct. 2432 (1996); Lynce v. Mathis, 117 S.Ct. 891 (1997); Weaver v. Graham, 101 S.Ct. 960 (1981).Stapler v. State, 939 So.2d 1092, 1093 (Fla. 5th DCA 2006), described the rule against retroactive application of the 2001 tolling provision as follows: [M]r. Stapler committed his offenses prior to July 1, 2001, when Section 948.06(1) was amended. See Ch. 2001-109, §1, Laws of Fla. The revised tolling statute has been held not to apply retroactively. See Frye v. State, 885 So.2d 419 (Fla. 1st DCA 2004). Instead, under the law as it existed at the time of Mr. Stapler’s revocation proceedings, the arrest warrant was not issued for the purposes of setting in motion the revocation process, until the judge signed the warrant and the warrant had been delivered to the proper executive officer for execution.State v. Boyd, 717 So.2d 524, 526 (Fla. 1998).
(Italics in original).
Counsel for Defendant has found no case specifically addressing the retroactive application of Chapter 2007-210, §5, Laws of Florida. The analogy is clear. The 2001 revision allowed tolling upon the execution of a warrant by a judge without delivery to the sheriff. The 2007 tolling revision permits tolling upon a warrantless arrest. Defendant contends that the retroactive application of the 2007 tolling revision is barred by double jeopardy, due process and the prohibition against ex post facto laws as contained in Amendments V and XIV, United States Constitution, Article 1, §10, cl.l, United States Constitution, and Article I, Sections 9 and 16, Florida Constitution. See Guevara v. State, 983 So.2d 738 (Fla. 3rd DCA 2008) (2001 Tolling revision cannot be applied retroactively); Harris v. State, 893 So.2d 669 (Fla. 1st DCA 2005) (accord); Harper v. State, 955 So.2d 617 (Fla. 5th DCA 2007) (Applied 2001 tolling provision where probation was imposed after effective date of revision); Burrell v. State, 993 So.2d 998 (Fla. 2nd DCA 2007) (Mandatory electronic monitoring condition could not be applied retroactively to probationer).
Defendant’s probation could only be tolled via the execution of a timely filed affidavit and VOP warrant. The 2007 tolling revision is not applicable to Defendant’s case, since both her offense was committed and her probation imposed before the revisions effective date. See Point I, supra.; Boyd v. State, supra; Francois v. State, 695 So.2d 695 (Fla. 1997). The court file at bar does not reflect the execution of any VOP warrant before January 27, 2009. Probation Officer Kenneth Baker’s January 21, 2009 letter admits that no previous VOP warrant was submitted or signed. The undisputed evidence is that a warrant was not signed before probation ended. Defendant’s probationary period was not tolled by the State’s filing of an Affidavit of Violation of Probation. There must be both a timely filed affidavit and VOP warrant in order to toll probation. “It is well settled that after a term of probation has expired, a court has no jurisdiction to entertain a VOP based on offenses occurring during the probation period unless the state issued an arrest warrant for the VOP before expiration.” Ford v. State, 994 So.2d 1244, 1245 (Fla. 4th DCA 2008).
In the case at bar, the probable cause VOP arrest might constitute a timely filed affidavit. The admitted failure to secure a VOP warrant before expiration of the probationary term dooms the State’s effort and deprives the Court of subject matter jurisdiction. Sepulveda v. State, 909 So.2d 568 (Fla. 2nd DCA 2005); Baroulette v. McCraw, 904 So.2d 575 (Fla. 3rd DCA 2005); Jones v. State, 964 So.2d 167 (Fla. 5th DCA 2007); Jean-Gilles v. State, 921 So.2d 860 (Fla. 4th DCA 2006).
Defendant contends that the probable cause VOP arrest on September 9, 2008, was not effective to toll probation. Even if it were, the probation ended on or about November 16, 2008, without the State taking additional steps to amend the charges. The State is prohibited by due process and double jeopardy principles from substantively amending probation charges after the probationary term expires. In the case at bar, the probation officer executed a Violation Report on September 12, 2008, which purported to add a Condition 2 violation, but which was never filed with the Court. The probation officer conceded that no warrant had issued as of January 21, 2009, when he wrote a letter to Judge Schack. There was no probable cause arrest for the Condition 2 violation, and no issuance of an arrest warrant, before the probationary term ended. Therefore, the Condition 2 charge should be dismissed.
Similarly, there was no probable cause VOP arrest for the January 17, 2009 incident. A warrant issued for the January 17, 2009 incident, but only after probation has already ended two months earlier. This Court should dismiss the portion of the VOP Warrant signed on January 27, 2009, which charges the Condition 2 violation and the Condition 5 violation arising on January 17, 2009 – even if the Court construes the Condition 5 violations arising on September 9, 2008, as being timely. The Florida Supreme Court has held that a timely filed VOP warrant may not be amended after the expiration of a probationary term to add new substantive charges. State v. Hall, 641 So.2d 403 (Fla. 1994); See Sepulveda v. State, supra; Davis v. State, 623 So.2d 579 (Fla. 3rd DCA 1993); Clark v. State, 402 So.2d 43 (Fla. 4th DCA 1981). The State cannot pursue a basis for VOP which is not specifically alleged in an affidavit and warrant. It would violate a defendant’s due process rights to allow a violation to proceed on conduct not alleged. Art. I, §§9 and 16, Fla. Const.; Amend. V and XIV, U.S. Const.; Smith v. State, 738 So.2d 433, 435 (Fla. 1st DCA 1999) (“Revocation of probation on grounds never alleged in writing violates due process and is fundamental error.”); DeJesus v. State, 848 So.2d 1276, 1278 (Fla. 2nd DCA 2003) (accord); Johnson v. State, 899 So.2d 436, 438 (Fla. 4th DCA 2005); Nagel v. State, 758 So.2d 1206 (Fla. 4th DCA 2000). Just as the State cannot amend to add new charges after the expiration of probation, the State cannot rely on uncharged conduct to justify a revocation.
Some time after EDS’ VOP warrant was dismissed the Florida Supreme Court ruled that the tolling amendment was procedural in nature and could, therefore, be applied retroactively against those who were place on probation before the amendment. This change in law underscores how important it is to raise every viable defense possible. No one can say for sure how the law will change tomorrow…let alone several years from now. The new interpretation of the tolling amendment could not be applied against EDS because her case became final when the State failed to appeal.