Bonifacio Gonzalez-Ramos v. State
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
JANUARY TERM 2010
BONIFACIO GONZALEZ-RAMOS,
Appellant,
v.
Case No. 5D08-2101
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed May 28, 2010
Appeal from the Circuit Court
for St. Johns County,
Wendy W. Berger, Judge.
James S. Purdy, Public Defender, and
Susan A. Fagan, Assistant Public
Defender, Daytona Beach, for Appellant.
Bill
McCollum,
Attorney
General,
Tallahassee, and Mary G. Jolley, Assistant
Attorney General, Daytona Beach, for
Appellee.
PER CURIAM.
Defendant Bonifacio Gonzalez-Ramos was adjudicated in violation of his
probation and sentenced to four years in prison. The issue we must resolve is whether
appropriate steps were taken to have the violation of probation process set in motion
prior to the expiration of the term of Defendant’s probation. Because it is clear, based
on the particular facts and circumstances of this case, that the affidavit of violation was
filed and the warrant was issued after the term of probation expired, the trial court
lacked jurisdiction to find Defendant in violation and sentence him to forty-eight months
in prison.1
On July 14, 2005, Defendant entered a plea of no contest to aggravated assault
with a deadly weapon and was placed on two years’ probation. His term of probation
was, therefore, due to expire on July 14, 2007. He twice violated his probation. On July
18, 2006, an affidavit of violation was filed and a warrant was issued the following day.
On September 5, 2006, Defendant was found in violation and his probation was
continued.2 On November 27, 2006, another affidavit was filed and, on January 10,
2007, Defendant was found in violation.
His probation was once again continued.
Indeed, the State concedes that in each instance, the original term of probation was
continued by the trial court.
The issue in the instant case stems from an asserted third violation of probation
occurring when Defendant failed to report to his probation officer in August and
1
In 2007, the Legislature amended section 948.06(1)(d), Florida Statutes, to
provide that “[u]pon the filing of an affidavit . . . 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 probationary period is tolled . . . .” § 948.06(1)(d), Fla. Stat. (2007)
(emphasis added). The emphasized provisions were added by the amendment, which
became effective on June 30, 2007. Ch. 2007-210, § 5, Laws of Fla. As the court
explained in Shenfeld v. State, 14 So. 3d 1021, 1024 (Fla. 4th DCA), review granted, 29
So. 3d 292 (Fla. 2009), the addition of these new provisions makes it clear that
issuance of the warrant is no longer a necessary requirement to start the violation
process if a warrantless arrest was made or a notice to appear was issued. In the
instant case, there was no warrantless arrest or notice to appear, so we are only
concerned with issuance of the arrest warrant. We make no opinion regarding the
applicability of the 2007 amendment to the instant case.
2
Each order continuing probation utilizes the term “reinstate.” Reinstatement of
probation is the equivalent of continuing it. State v. Daniels, 35 Fla. L. Weekly D813
(Fla. 2d DCA Apr. 9, 2010).
2
September 2007.
Although the term of his probation ended on July 14, 2007, on
September 17, 2007, an Affidavit of Violation of Probation was filed charging these
failures to report and specifying the failure to make certain payments, and an
accompanying arrest warrant was signed September 19, 2007. Amended affidavits of
violation of probation were filed September 21, 2007, February 11, 2008, and March 28,
2008. We note that all of the allegations of violation occurred after July 14, 2007. The
violation of probation hearing was held on June 9, 2008, and Defendant was found in
willful violation and sentenced to forty-eight months in prison.
Defendant appeals, contending that the trial court lacked jurisdiction to determine
the affidavit of violation of probation and its amendments where the original and all
amendments were filed after his probationary period had expired. The State correctly
concedes that once a term of probation has expired, a trial court lacks jurisdiction to
entertain a revocation proceeding based upon a violation that occurred during the term
of probation unless, during the term of probation, “appropriate steps” were taken to
address the alleged violation. Shenfeld v. State, 14 So. 3d 1021, 1023 (Fla. 4th DCA)
(“It is axiomatic that ‘[o]nce a term of probation has expired, a court lacks jurisdiction to
entertain an application for revocation of probation based upon a violation which
occurred during the probation period unless, during the term of probation, appropriate
steps were taken to revoke or modify probation.’”) (quoting Clark v. State, 402 So. 2d
43, 44 (Fla. 4th DCA 1981)), review granted, 29 So. 3d 292 (Fla. 2009); Jones v. State,
964 So. 2d 167, 170 (Fla. 5th DCA 2007) (“Once a term of probation expires, a court
lacks jurisdiction to entertain an application for a revocation of probation based upon a
violation that occurred during the probation period unless, during the term of probation,
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appropriate steps were taken to revoke or modify probation.”); see also § 948.04(2), Fla.
Stat. (2007) (“Upon 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.”). However, the State utilizes the tolling provisions in section 948.06(1),
Florida Statutes, to contend that the two prior violations tolled the period of probation
and that the total period of time between the issuance of the warrant and the hearing on
those alleged violations should be tacked onto the end of the original period of probation
to automatically extend the probation period beyond the July 14, 2007, termination date.
We do not believe that the provisions of section 948.06 or the cases applying the
tolling provisions of that statute lend support for the interpretation advanced by the State
that each and every violation period (the time between the issuance of the warrant and
adjudication of the violation allegations) prior to the expiration date of the probation term
should be applied to the end of the originally imposed term to automatically extend the
term by the total of the violation periods when each violation resulted in a continuation
of the original term of probation. Here, Defendant violated his probation twice during
the original term of his probation. The trial court could have appropriately extended
Defendant’s term of probation each time he was found in violation. See, e.g., Eddie v.
State, 933 So. 2d 570 (Fla. 1st DCA 2006) (holding that probation may be enhanced,
either by extension of the period or by addition of terms). However, the court did not
avail itself of that option; instead, it simply continued the originally imposed term of
probation that would expire on July 14, 2007. In Vidaurre v. State, 8 So. 3d 1206 (Fla.
2d DCA 2009), for example, the defendant was placed on a five-year term of probation
for the offense of possession of cocaine and violated his probation four times. Each
4
time, the court continued the defendant’s probation. After the expiration of that five-year
term of probation, the defendant was charged with a fifth violation and was
subsequently adjudicated in violation. In holding that the trial court lacked jurisdiction to
hear the violation, the court explained:
“A violation of probation must be set in motion prior to
the termination of the period of probation.” Jones v. State,
954 So. 2d 675, 676 (Fla. 4th DCA 2007); see also §
948.04(2), Fla. Stat. (2001); State v. Wimberly, 574 So. 2d
1216, 1217 (Fla. 2d DCA 1991) (“A trial court lacks
jurisdiction to revoke probation for violations which occur
during the period of probation unless the revocation process
is set in motion during the probationary period.”). Here, in
light of his scoresheet, Mr. Vidaurre’s probationary term
could have been longer than five years, but it ended in June
2006 because the trial court continued his probationary term
instead of extending it. Since the next violation of probation
was not set in motion before the period of probation ended,
the trial court lacked jurisdiction to find Mr. Vidaurre in
violation of his probation on September 28, 2007.
Vidaurre, 8 So. 3d at 1207.
Similarly, in Jones v. State, 954 So. 2d 675 (Fla. 4th DCA 2007), the trial court
placed the defendant on probation in August 2003, for a term of eighteen months,
expiring in February 2005. The defendant violated shortly thereafter and the trial court
extended her probation by eighteen months on October 21, 2003, correspondingly
extending the termination date to April 2005. After the defendant violated a second
time, the trial court continued the defendant’s probation but did not extend the term.
After the probationary term expired, the defendant was again charged with a violation,
and the court held that since the affidavit was filed after the probationary term expired,
the court did not have jurisdiction to hear the violation. The court further held that “[t]he
fact that the defendant continued to report to her probation officer after her probation
5
expired is irrelevant. Quite simply, the trial court lacked jurisdiction to hear the violation
of probation.” Id. at 676.
Here, the trial court thrice ordered that Defendant’s probation would expire on
July 14, 2007—once when the plea was entered and twice after each violation. The
violation process for the current violations was not set in motion prior to the expiration of
that term of probation and, therefore, the trial court lacked jurisdiction to hear the
violation allegations. Accordingly, we reverse the order finding Defendant in violation of
his probation and remand with instructions to the trial court to vacate the four-year
prison sentence. See Jones.
REVERSED and REMANDED.
MONACO, C.J., SAWAYA and PALMER, JJ., concur.
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