This court has no jurisdiction a look at probation and community control revocation proceedings in light of Boyd and F.S. s. 901.02(1).

• Author: Herman, Jason P.
• Position: Florida

The criminal defense attorney and the prosecutor must continue to be extremely sensitive to the calendar when litigating violation of probation cases.

The past two years have seen action from both the state legislature and the Florida courts that, in effect, have defined and then changed how the criminal law practitioner, both defense and prosecutor, should argue the jurisdictional defense in violations of probation and community control proceedings.(1)

The legislative action relates directly to the attempts by the district courts and Supreme Court of Florida to interpret and define exactly how a court can capture jurisdiction so that it may violate a probationer. This article attempts to identify how the courts define the revocation process, what the legislature has done to change it, and how those practicing criminal law may argue that the court has or does not have jurisdiction to violate a probationer in light of those definitions and changes.

Perhaps the single most important word to the lawyer is "jurisdiction." On that word alone rests the foundation by which all lawsuits, criminal and civil, rise and fall. Without it, our client does not get in the front door of the courthouse. Without it, the government cannot prosecute our client for a given crime.

In criminal proceedings, nowhere is the concept of jurisdiction more important than in probation revocation cases. First, the government does not have to prove the probationer guilty by the traditional "beyond a reasonable doubt" standard. Rather, the standard of proof in revocation proceedings is akin to that of a civil trial: by the greater weight of the evidence.(2) Second, there is no jury trial in probation revocation proceedings. Third, the probationer has only a limited constitutional (federal and state) right to remain silent.(3) Thus, the nature of the proceedings makes it incumbent upon the criminal defense practitioner to hold the government and the court to the technical and substantive requirements for capturing jurisdiction in probation revocation proceedings. Quite often, it is only the lack of jurisdiction argument presented in a motion to dismiss that can save a client from a lengthy jail or prison sentence.

Revoking Probation Under F.S. [sections] 948.06(1)

F.S. [sections] 948.06(1) defines the process by which a defendant's probation can be violated:

(1) ... Any committing magistrate may issue a warrant, upon the facts being made known to him or her by affidavit of one having knowledge of such facts, for the arrest of the probationer, returnable forthwith before the court granting such probation or community control. Any parole or probation supervisor, any officer authorized to serve criminal process, or any peace officer of this state is authorized to serve and execute such warrant.

Absent compliance with the procedure set forth in the statute, a court is without jurisdiction to violate probationer. State ex rel. Ard v. Shelby, 97 So. 2d 631 (Fla. 1st DCA 1957).(4)

A court lacks jurisdiction to revoke probation for a violation that occurs within the period of probation, "unless the revocation process is set in motion during the probationary period." Hoffman v. State, 729 So. 2d 421 (Fla. 1st DCA 1999).(5) This revocation process or procedure as outlined by statute and defined by case law has two requirements. First, an affidavit of violation must be filed within the probationary period. Fryson v. State, 559 So. 2d 377, 378 (Fla. 1st DCA 1990).(6) Second, a warrant must be issued for the probationer's arrest within the probationary period. State v. Boyd, 717 So. 2d 524 (Fla. 1998).

An Old Opinion Revisited

It is the seminal case of Boyd which provided fertile ground for the defense attorney to argue, successfully, certain motions to dismiss based on lack of jurisdiction. In Boyd, the probation officer signed an affidavit alleging that Boyd had violated his probation approximately two and half weeks before the term of probation was set to expire. Then, the trial judge signed the arrest warrant...