Medina v. State

320 So.3d 985

Sally MEDINA, Appellant,

v.STATE of Florida, Appellee.

No. 2D18-4719

District Court of Appeal of Florida, Second District.

June 4, 2021

Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Chelsea N. Simms, Assistant Attorney General, Tampa, for Appellee

SILBERMAN, Judge.

Sally Medina appeals the order revoking her community control for public assistance fraud and the resulting sentence of 100 days in jail with credit for time served, with the remainder to be served on weekend work release. She contends that her community control had expired before the State filed the affidavit of violation and that the trial court lacked jurisdiction. We agree and reverse the order revoking community control and remand for the trial court to vacate the county jail sentence.

On August 13, 2012, the trial court originally imposed a five-year period of probation for the third-degree felony of public assistance fraud. See §§ 414.39(5)(b), 775.082(3)(d), Fla. Stat. (2011). In 2014, an order of modification of probation was filed which indicated that probation was restored and modified. The order stated modified conditions but did not state a modification of the five-year term. A second modification order was filed on June 10, 2016, nunc pro tunc to May 12, 2016, and again stated that Medina's probation was restored and modified but did not extend the five-year term. A third violation resulted in an order of community control filed on August 15, 2016, nunc pro tunc to August 5, 2016, in which the trial court revoked Medina's probation and imposed a two-year term of community control. This new two-year term would extend beyond August 12, 2017—the end of the original five-year term of supervision.

On December 7, 2017, an affidavit of violation of community control (VOCC) was filed and an arrest warrant was issued. An amended affidavit was filed in May 2018. At the VOCC hearing held on November 5, 2018, defense counsel argued that Medina's statutory maximum of five years had been expired by several months when the VOCC affidavit was filed in December 2017. Defense counsel argued that the trial court lacked jurisdiction and should dismiss the affidavit. The trial court determined that 178 days had been tolled and that the December 2017 VOCC affidavit was filed before the supervisory period expired. Thus, the trial court denied the request to dismiss. The trial court revoked community control and imposed the jail term.

On appeal, Medina argues that because her supervision should have ended in August of 2017, and because she was serving an illegal portion of the term of community control when the VOCC affidavit was filed, the trial court should have dismissed the affidavit for lack of jurisdiction. She relies primarily upon Cubero v. State , 65 So. 3d 642 (Fla. 2d DCA 2011), to support her position. The State acknowledges that the statutory maximum for Medina's offense is five years and that her supervisory term would have expired on August 12, 2017, but contends the term was properly extended past this date based on various periods of tolling throughout the supervisory term.

Section 948.06(1)(f), Florida Statutes (2017),¹ provides in pertinent part:

(f) Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant for such violation, a warrantless arrest under this section, or a notice to appear under this section, the probationary period is tolled until the court enters a ruling on the violation. Notwithstanding the tolling of probation, 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 statute further provides that

when a period of probation or community control has been tolled, upon revocation or modification of the probation or community control, the court may impose a sanction with a term that when combined with the amount of supervision served and tolled, exceeds the term permissible pursuant to s. 775.082 for a term up to the amount of the tolled period of supervision.

§ 948.06(2)(f).² Unlike the statutory tolling: "a probationary term is automatically tolled when a probationer absconds from his supervision. The probationary period remains tolled until such time that the probationer again is under supervision by the arm of our state." Canchola v. State , 255 So. 3d 442, 447 (Fla. 2d DCA 2018).

When a term of supervision expires before an affidavit of violation is filed, the trial court lacks jurisdiction to revoke supervision. See Cubero , 65 So. 3d at 643 ; see also Gonzalez-Ramos v. State , 46 So. 3d 67, 70 (Fla. 5th DCA 2010) ("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."). When the trial court reinstated Medina's probation on the first two violations, it was "the equivalent of modifying or continuing it." State v. Daniels , 33 So. 3d 749, 750 (Fla. 2d DCA 2010) ; see also Gonzalez-Ramos , 46 So. 3d at 68 n.2 ("Reinstatement of probation is the equivalent of continuing it."). The trial court did not extend Medina's term of supervision, although it could have extended it up to the amount of time the period of supervision was tolled. See Cubero , 65 So. 3d at 643 n.1 (recognizing that on either of two prior modifications of probation the trial court could have extended probation by the amount of time tolled but did not so extend the term).

In Cubero , this court determined that "the tolling periods that occurred between the filing of each of the first two affidavits and the trial court's rulings on each of those affidavits did not automatically operate to extend Cubero's misdemeanor probation term past the originally imposed twelve-month term." Id. at 643 (citing Gonzalez-Ramos , 46 So. 3d at 69 ). In Gonzalez-Ramos , the Fifth District rejected the State's theory

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.

46 So. 3d at 69. The Gonzalez-Ramos court explained that each time the defendant was found in violation the trial court could have extended the term of probation but failed to "avail itself of that option; instead, it simply continued the originally imposed" probationary term. Id. The court determined that on a third violation of probation the term had expired and the trial court lacked jurisdiction. Id. at 70.

To support its argument to extend Medina's term of supervision, the State relies upon Franklin v. State , 54 So. 3d 622 (Fla. 1st DCA 2011). In Franklin , the trial court originally placed Franklin on probation in October 2002 for two years on a third-degree felony. Id. at 623. On a first violation of probation, "the probationary period was tolled for roughly 32 months." Id. at 624. The trial court revoked Franklin's probation in December 2005, after the original probationary term would have expired, and placed him on two years' community control with a condition of serving jail time, followed by a year of drug offender probation. Id. at 623. On a second violation, the trial court revoked community control and imposed drug offender probation in February 2008. On a third violation, the trial court revoked probation and imposed a prison sentence...