Hodges v. State
Hodges v. State
Opinion of the Court
In this appeal from his resentencing following the revocation of probation, Appellant raises three claims: (1) the trial court erred in denying his motion to dismiss for lack of jurisdiction because his probation had expired; (2) the trial court committed reversible error in finding that he violated his probation by leaving his county of residence and changing his approved residence without his probation officer's consent; and (3) the trial court erred in not specifying the conditions violated in the *844revocation order. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.
I.
Appellant moved unsuccessfully to dismiss for lack of jurisdiction because his probation expired, asserting that the filing of an affidavit and issuance of an arrest warrant for technical violations of probation did not toll the probationary period. In doing so, he relied on Mobley v. State ,
Section 948.06(1)(f) is clear that a warrant under section 901.02 is required in order for the probationary period to be tolled (except when one of the other two alternatives are applicable, as is not the case here). Section 901.02 in turn requires that the warrant be for a "crime." Here, the warrants issued were for violations of probation based on the failure to make restitution payments and a payment for drug testing. These are not "crimes." The warrants were therefore not issued under section 901.02, and Appellant's probation was never tolled.
More recently, the Second District explained that "our common law recognizes that a probationer's absconsion from supervision during his probationary term, apart from section 948.06(1)(f)'s tolling provision, automatically tolls his term." Canchola v. State , 43 Fla. L. Weekly D2092, D2093,
At the probation violation hearing, Appellant's probation officer testified that Appellant's mother came to his office and informed him that Appellant had not been home in a week. Appellant's mother acknowledged at the hearing that Appellant had not been at her home for a week and that she did not know his whereabouts at that time. Thus, there was competent, substantial evidence that Appellant had absconded for at least a week during his probationary term. If tolled for the week that he had absconded, Appellant's probation would have expired on June 16, 2017. It appears undisputed that Appellant was arrested on June 15, 2017, for criminal charges in Duval County pursuant to a warrant under section 901.02. Because Appellant was arrested on this warrant before his probation expired, his probation was tolled by operation of section 948.06(1)(f).
II.
The trial court found that Appellant violated his probation by leaving Nassau County, his county of residence, without the consent of his probation officer. The affidavit alleged that Appellant violated this condition when he left Nassau County and entered Duval County on March 8, 2017.
*845However, no evidence was presented that Appellant was in Duval County on March 8, 2017. The revocation of probation based on conduct not alleged in the affidavit constituted fundamental error and did not require a contemporaneous objection to preserve the claim for appellate review. Perkins v. State ,
The trial court further found that Appellant violated his probation by changing his residence without the consent of his probation officer. Appellant's probation officer testified that he filed this charge based solely on what Appellant's mother told him during a meeting at his office. Such hearsay alone is not sufficient to establish that Appellant changed his residence in the absence of nonhearsay evidence to corroborate it. See Rutland v. State ,
A probationer's absence from an approved residence for a brief time during which the probationer's location was unknown would not support a finding that the probationer violated a condition of probation by changing his residence without first procuring the consent of his probation officer. Tobias v. State ,
However, Appellant was also charged with violating his probation by committing new law violations in Duval County, which would support the revocation of his probation, if proven. The trial court's oral findings focused on the allegations that Appellant violated his probation by leaving his county of residence and changing his approved residence without his probation officer's consent, but the prosecutor was able to coax what appears to be a further oral finding that Appellant violated his probation *846by committing the new law violations in Duval County as an accessory.
Given the somewhat ambiguous nature of the trial court's oral findings and the lack of any written findings, we reverse and remand with directions that the trial court make an express determination whether Appellant's probation should be revoked based on the new law violations. See Manis v. State ,
III.
The trial court's written order of revocation does not specify the conditions of probation that were violated by Appellant. "If a trial court revokes a defendant's probation, the court is required to render a written order noting the specific conditions of probation that were violated." King v. State ,
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.
Makar, Osterhaus, and Jay, JJ., concur.
Effective July 1, 2017, the legislature amended section 948.06(1)(f) to remove the requirement that the warrant be issued under section 901.02. Ch. 2017-115, §§ 9, 20, Laws of Fla. This amendment is not applicable here since Appellant's probation expired before July 1, 2017.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.