Supreme Court of Florida
STATE OF FLORIDA,
[September 2, 2010]
In this case, we consider whether a statutory amendment relating to the
circumstances in which a probationary period is tolled pending consideration of an
alleged probation violation may constitutionally be applied to a probationer who
was placed on probation before the amendment became effective. We have for
review the decision of the Fourth District Court of Appeal in Shenfeld v. State, 14
So. 3d 1021 (Fla. 4th DCA 2009), in which the Fourth District certified that its
decision is in direct conflict with the decisions of the First District Court of Appeal
in Harris v. State, 893 So. 2d 669 (Fla. 1st DCA 2005), and Frye v. State, 885 So.
2d 419 (Fla. 1st DCA 2004). We have jurisdiction. See art. V, § 3(b)(4), Fla.
Const. For the reasons that follow, we agree with the Fourth District that the
application of the statutory amendment to a probationer who was placed on
probation before the amendment became effective did not violate the constitutional
prohibition of ex post facto laws.
In July 2002, Jason Shenfeld pleaded guilty to a robbery committed earlier
that year. In September 2002, the trial court adjudicated Shenfeld guilty, sentenced
him to five years‟ incarceration, suspended the sentence, and ordered him to serve
five years of drug offender probation. In 2004, Shenfeld filed a motion to
terminate his probation. The trial court declined to terminate probation, but it
modified Shenfeld‟s probation to administrative probation. On July 23, 2007,
before Shenfeld‟s probation expired, an affidavit of violation of probation was
filed, alleging that Shenfeld had committed several violations by committing new
crimes. Shenfeld had been arrested without a warrant for allegedly committing
first-degree murder, sexual battery, and false imprisonment on July 21, 2007. On
October 1, 2007, after Shenfeld‟s probation would have expired absent tolling, an
amended affidavit was filed. The amended affidavit changed the dates of
Shenfeld‟s alleged violations. Shenfeld, 14 So. 3d at 1023.
When Shenfeld was placed on probation, section 948.06(1), Florida Statutes
(2001), provided that “[u]pon the filing of an affidavit alleging a violation of
probation or community control and following issuance of a warrant under s.
901.02, the probationary period is tolled until the court enters a ruling on the
violation.” Florida district courts of appeal held that under the 2001 version of
section 948.06(1), “[b]oth the filing of an affidavit of violation and the issuance of
an arrest warrant are required to toll the probationary period, and the mere filing of
the affidavit is insufficient.” Jones v. State, 964 So. 2d 167, 170 (Fla. 5th DCA
2007) (citing Sepulveda v. State, 909 So. 2d 568, 570 (Fla. 2d DCA 2005)). In
2007, the Legislature amended section 948.06(1) to allow for tolling of the
probationary period “[u]pon 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.” § 948.06(1)(d), Fla. Stat. (2007). This amendment became effective
June 20, 2007. Ch. 2007-210, § 7, at 1938, Laws of Fla. The amended statute thus
was in effect when Shenfeld violated his probation.
Relying on the 2001 version of section 948.06(1), Shenfeld moved to
dismiss the affidavits of violation of probation. Shenfeld contended that because
he was arrested without a warrant and no arrest warrant for the violations was
issued during his probationary period, his probation was never tolled and the trial
court lacked jurisdiction to revoke his probation once the probationary period
expired. Shenfeld further asserted that application of the 2007 version of section
948.06(1) to him was an ex post facto violation.
The trial court denied Shenfeld‟s motion to dismiss, explaining that its
denial was on the basis that the original affidavit of violation was timely and the
amended affidavit did not allege new charges. The trial court did not expressly
address Shenfeld‟s argument that because no arrest warrant was issued, his
probation was not tolled and the trial court lacked jurisdiction to revoke his
probation. After an evidentiary hearing, the trial court found that Shenfeld had
violated his probation and revoked that probation. The trial court sentenced
Shenfeld to fifteen years in prison. Shenfeld, 14 So. 3d at 1023.
Shenfeld appealed his sentence and the trial court‟s ruling on his motion to
dismiss to the Fourth District Court of Appeal. Shenfeld raised two issues.
First, Shenfeld asserted that the trial court erred by sentencing him to fifteen
years because that sentence exceeded his original split sentence. The Fourth
District concluded that Shenfeld did receive a true split sentence and that the
maximum sentence he could have received after violating his probation thus was
five years. Id. at 1025.
Second, Shenfeld argued that the trial court violated the prohibition on ex
post facto laws by retroactively applying section 948.06(1), Florida Statutes
(2007), in his case. Shenfeld continued to assert his argument that had the trial
court applied the probation tolling statute that was in effect when he was originally
placed on probation, the trial court would not have had jurisdiction to consider the
alleged violations of probation. The Fourth District concluded that the application
of section 948.06(1), Florida Statutes (2007), to Shenfeld‟s revocation of probation
proceeding was not an ex post facto violation because it determined that the 2007
amendment to section 948.06(1) was procedural in effect. The Fourth District
reasoned that the revision was procedural in nature because the purpose and effect
of the amendment was to toll the probationary period in order to allow the alleged
violations of probation to be heard. Accordingly, the Fourth District concluded
that the trial court had jurisdiction to revoke Shenfeld‟s probation and sentence
him. Shenfeld, 14 So. 3d at 1023-24.
The State cross-appealed, arguing that Shenfeld‟s sentence was an illegal
downward departure, that he was improperly placed on drug offender probation,
and that he was improperly placed on administrative probation. The Fourth
District concluded that because the State did not object to or timely appeal from
any of the alleged errors by the trial court, the State had waived its arguments. Id.
Based on the foregoing, the Fourth District reversed and remanded with
directions that the trial court sentence Shenfeld to a term of five years. In addition,
the Fourth District certified conflict with Harris and Frye on the issue of whether
application of an amendment to section 948.06(1) affecting the tolling of probation
was an ex post facto violation. Shenfeld, 14 So. 3d at 1024. We accepted
On appeal, Shenfeld contends that the 2007 version of section 948.06(1)
could not constitutionally be applied to him and that the trial court therefore erred
in denying his motion to dismiss. Specifically, Shenfeld asserts that the ex post
facto clauses of the United States Constitution and the Florida Constitution prohibit
retroactive application of section 948.06(1), Florida Statutes (2007), in his
revocation of probation proceeding. The State contends that section 948.06(1),
Florida Statutes (2007), was not applied retroactively in this case and,
alternatively, that if the statute was applied retroactively, the application was
The United States Constitution provides that “[n]o State shall . . . pass any . .
. ex post facto Law.” U.S. Const. art. I, § 10, cl. 1. The Florida Constitution
similarly states that “[n]o . . . ex post facto law . . . shall be passed.” Art. I, § 10,
The constitutional prohibition of ex post facto laws forbids the enactment of
“laws with certain retroactive effects.” Stogner v. California, 539 U.S. 607, 610
(2003). The four categories “of ex post facto laws set forth by Justice Chase more
than 200 years ago in Calder v. Bull[, 3 U.S. (3 Dall.) 386 (1798),]” have been
“recognized as providing an authoritative account of the scope of the Ex Post Facto
Clause.” Stogner, 539 U.S. at 611. These are the four categories set forth by
1st. Every law that makes an action done before the passing of the
law, and which was innocent when done, criminal; and punishes such
action. 2d. Every law that aggravates a crime, or makes it greater
than it was, when committed. 3d. Every law that changes the
punishment, and inflicts a greater punishment, than the law annexed to
the crime, when committed. 4th. Every law that alters the legal rules
of evidence, and receives less, or different, testimony, than the law
required at the time of the commission of the offense, in order to
convict the offender.
Id. at 612 (quoting Calder, 3 U.S. (3 Dall.) at 390-91) (emphasis removed). All ex
post facto claims must be evaluated in the light of these four categories. In
determining whether an ex post facto violation has occurred, it is “a mistake to
stray beyond Calder‟s four categories.” Carmell v. Texas, 529 U.S. 513, 539
(2000) (emphasis removed).
It is evident that the four Calder categories do not encompass every law
effective after the commission of an offense and applied in the proceedings
regarding the offense. The prohibition of ex post facto laws thus “does not give a
criminal a right to be tried, in all respects, by the law in force when the crime
charged was committed.” Dobbert v. Florida, 432 U.S. 282, 293 (1977) (quoting
Gibson v. Mississippi, 162 U.S. 565, 590 (1896)). And the mere fact that a
statutory change “[alters] the situation of a party to his disadvantage” is not
sufficient to bring that change within the scope of the ex post facto clause. Collins
v. Youngblood, 497 U.S. 37, 50 (1990) (quoting from and overruling Kring v.
Missouri, 107 U.S. 221, 235 (1883)). Detriment to the defendant is necessary but
not sufficient to establish an ex post facto violation. “[E]ven if a law operates to
the defendant‟s detriment, the ex post facto prohibition does not restrict „legislative
control of remedies and modes of procedure which do not affect matters of
substance.‟” Miller v. Florida, 482 U.S. 423, 433 (1987) (quoting Dobbert, 432
U.S. at 293); see also Beazell v. Ohio, 269 U.S. 167, 171 (1925). Such matters of
substance are implicated only when the law falls within one of the four Calder
The 2007 revision to section 948.06(1) at issue here is a matter of procedure
that does not fall within any of those categories. The statutory provision
expanding the circumstances under which a probationary term could be tolled
“neither made criminal a theretofore innocent act [first category], nor aggravated a
crime previously committed [second category], nor provided greater punishment
[third category], nor changed the proof necessary to convict [fourth category].”
Dobbert, 432 U.S. at 293. Instead, the statutory change simply altered the “modes
of procedure” governing the adjudication of probation violations by permitting the
tolling of a probationary term without the issuance of an arrest warrant.
Shenfeld‟s reliance on State v. Williams, 397 So. 2d 663 (Fla. 1981), is
unavailing. In Williams, this Court held that a statute—enacted after the
commission of the charged offense—which allowed the trial court to retain
jurisdiction over the first third of the defendant‟s statutory maximum sentence
could not be constitutionally applied retroactively. The trial court‟s retention of
jurisdiction gave it the authority to bar the defendant‟s parole or gain-time release.
This Court explained that retroactive application of the statute would attach “the
legal consequences of the trial court‟s parole veto and no gain-time release to those
who committed crimes before the provision‟s effective date” and that as a
consequence “the prisoners‟ sentences are enhanced.” Id. at 665. The statutory
change at issue in Williams thus fell squarely within Calder‟s third category—that
is, laws inflicting “a greater punishment” than was applicable to the offense at the
time it was committed. The statutory revision at issue in this case, in contrast, did
nothing to increase the punishment applicable to Shenfeld.
The statutory change challenged by Shenfeld is akin to a statutory extension
of a statute of limitations which becomes effective before the statute has run. Such
a statutory change—unlike a statute reviving a previously time-barred
prosecution—does not fall within the scope of any of the four Calder categories.
See Stogner, 539 U.S. at 613, 632-33 (stating that “[a]fter (but not before) the
original statute of limitations had expired, a party such as Stogner was not „liable
to any punishment‟” and concluding “that a law enacted after expiration of a
previously applicable limitations period violates the Ex Post Facto Clause when it
is applied to revive a previously time-barred prosecution”); Reino v. State, 352 So.
2d 853, 861 (Fla. 1977) (recognizing that “the legislature could have amended [the
statute of limitations] retroactively” with respect to crimes for which
“[p]rosecution was not yet barred”). The probation statute amendment here
became effective before Shenfeld‟s probationary term had expired. If the time for
bringing criminal charges may constitutionally be extended before the prosecution
has been time-barred, it follows that a provision for tolling may be applied to a
probationary term that has not yet expired.
We decline to address the State‟s contention that the Fourth District erred in
concluding that the trial court could not sentence Shenfeld to fifteen years in prison
upon revocation of his probation. The State‟s contention is beyond the scope of
the certified conflict, and we need not address it. See Raford v. State, 828 So. 2d
1012, 1021 n.12 (Fla. 2002).
Finally, we briefly turn to the cases which the Fourth District certified to be
in conflict with Shenfeld. Those cases—Harris and Frye—addressed an earlier
version of the probation statute than the version at issue in Shenfeld. We decline
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to specifically address the constitutionality of the earlier version of the statute
which has been superseded by the version at issue in Shenfeld.
We approve the decision of the Fourth District. The 2007 revision to section
948.06(1), Florida Statutes (2007), was procedural in nature. Its application in
Shenfeld‟s revocation of probation proceeding did not violate the prohibition on ex
post facto laws.
It is so ordered.
PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions
Fourth District - Case No. 4D07-4386, 02-1816 CFA
(Palm Beach County)
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public
Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida,
Bill McCollum, Attorney General, Tallahassee, Florida, Celia Terenzio and Daniel
P. Hyndman, Assistant Attorneys General, West Palm Beach, Florida
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