Mosely v. State

379 So.3d 532

Jhamiel Williams MOSELY, Appellant,

v.STATE of Florida, Appellee.

No. 1D22-0181

District Court of Appeal of Florida, First District.

September 20, 2023

Rehearing Denied February 13, 2024

On appeal from the Circuit Court for Escambia County. Jan Shackelford, Judge.

Jessica J. Yeary, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.

Per Curiam.

[1–3] Mosely’s sole argument on appeal is that the trial court erred in revoking his probation in absence of a violation of probation affidavit. The State supplemented the record with the affidavit prior to filing their answer brief. Mosely did not file a reply. The provision of the missing affidavit seems to fully address Mosely’s only issue. To the extent it does not, we note that a probation or community-control violation proceeding is not a separate criminal prosecution. It is therefore a mistake to assume there needs to be a "charging document" to initiate the proceeding. There is not a statutory requirement that there be an "affidavit of violation" for the trial court to have the authority to revoke probation. Mosely points us to a footnote in a decision from our sister court. See Bourdeau v. State, 341 So. 3d 416, 418 n.4 (Fla. 2d DCA 2022) (noting that "probation cannot be revoked in a case for which no affidavit of violation has been filed"). But that issue was not central to the decision, and the opinion does not explain why there cannot be a revocation without an affidavit.

[4] Section 948.06 sets out the process for alleged violations of probation. There are three ways that a probationer can be brought before the trial court to answer for a suspected violation, and only two of them anticipate an "affidavit": 1) warrantless arrest by law enforcement officer upon "reasonable grounds to believe" there has been a violation; 2) court-issued warrant "upon [ ] facts being made known to him or her by affidavit of one having knowledge of such facts"; or 3) a notice to appear based upon the facts reflected in that affidavit, under certain circumstances. § 948.06(1)(a)–(b), Fla. Stat. But once a probationer is before the court that granted the probation, the statute requires only that the court advise the probationer of the alleged violation. § 948.06(2)(a), Fla. Stat. The probationer may then admit the violation or request a full hearing, after which the...