The Mobley Motion to Dismiss
People often ask us, “Does the statute of limitations apply to a violation of probation case?” The answer is always the same – “No, the Statute of Limitations doesn’t apply to a violation of probation in Florida.” But the passage of time can create another problem. If the court waits too long, it might lose jurisdiction.
In these cases, certain actions must be taken before the probation is set to naturally expire. If these actions are not taken, then the court loses jurisdiction on the day the probation was naturally set to expire. The actions that must be taken prior to the expiration of the probation period include:
- the probation officer must file an affidavit alleging the probation violation; and
- an arrest warrant must be filed and served or a warrantless arrest or notice to appear must issue under Florida Statute Section 901.02.
The first issue your criminal defense attorney has to determine in any VOP case is whether the court still has jurisdiction to decide the violation of probation and impose a new sentence. This article explains when the court loses jurisdiction and what can be done to have the case dismissed entirely when the court loses jurisdiction.
Attorney for Violation of Probation Cases in Florida
The attorneys at the Sammis Law Firm are experienced in representing clients in violation of probation cases in Florida.
Our attorneys fight accusations of a probation violation throughout the greater Tampa Bay area including Tampa in Hillsborough County, Clearwater and St. Petersburg in Pinellas County, Bradenton in Manatee County, New Port Richey and Dade City in Pasco County, Brooksville in Hernando County, and Bartow in Polk County, FL.
Our main office is in downtown Tampa, FL. We also have a second office in New Port Richey in Pasco County, directly across from the West Pasco Judicial Center.
Call (813) 250-0500 to discuss your violation of probation case and whether the charges can be dismissed if your probationary period has already expired and you have yet to be served with the VOP affidavit.
When is the Probationary Period Tolled?
Pursuant to Sepulveda v. State, 909 So. 2d 568, 570, (Fla 2nd DCA 2005), a probationer’s probation period is tolled upon certain criteria being met. After a VOP affidavit is filed and a warrant is issued and/or there is a warrantless arrest or notice to appear issued under Florida Statute 901.02, then the probationary period is tolled until the court enters a ruling on the violation. See Section 948.06(1)(f), Fla. Stat.
Section 948.06(1)(f) is clear that a warrant under Section 901.02 is required for the probationary period to be tolled. Section 901.02 requires that before probation is tolled, the warrant must be issued for a “crime” and not some technical issue such as failing to report, failing to complete a class, or failing to make restitution. See Mobley v. State, 197 So. 3d 572 (Fla. 4th DCA 2016).
The Ruling in Mobley v. State, 197 So.3d 572 (Fla. 4th DCA 2016)
In Mobley v. State, 197 So.3d 572 (Fla. 4th DCA 2016), one month before the defendant’s probation term was set to expire absent any tolling, his probation officer filed an affidavit alleging two VOPs. The first VOP was for failing to pay restitution and the second VOP was for failing to pay a drug testing fee. The circuit court issued a warrant based on the affidavit. Id. at 573.
Twenty days after the defendant’s probation term was set to expire absent any tolling, the circuit court extended the defendant’s probation term for two more years for the VOPs. Id. Shortly after this extension, the defendant was arrested for a new crime which became the basis for another VOP against the defendant. Id. Based on that new VOP, the circuit court revoked the defendant’s probation and sentenced him to prison on his original offenses. Id.
On appeal, the defendant argued that upon his probation term’s expiration absent any tolling, the circuit court lacked subject matter jurisdiction to later extend and revoke his probation. Id.
The state argued that the defendant’s probation term became tolled upon the circuit court issuing a warrant based upon the probation officer’s affidavit. Id. at 574. In support, the state relied upon Shenfeld v. State, 14 So.3d 1021 (Fla. 4th DCA 2009), for the following proposition:
It is axiomatic that once a term of probation has expired, a court lacks jurisdiction to entertain an application for revocation of probation based on a violation which occurred during the probation period unless, during the term of probation, appropriate steps were taken to revoke or modify probation.
Id. at 1023 (emphasis added; citation and internal brackets and quotation marks omitted).
On appeal, the Mobley court agreed with the defendant’s argument and reversed the circuit court’s revocation of his probation and his consequent sentence. Id. at 574. The Mobley court reasoned:
A probationer’s probation period is tolled when certain criteria are met. “Upon the filing of an affidavit alleging a violation of probation or community control 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 until the court enters a ruling on the violation.” § 948.06(1)(f), Fla. Stat.
In a situation where there is no warrantless arrest or notice to appear, the combination of both the “filing of an affidavit of violation and the issuance of an arrest warrant are required to toll the probationary period.” Sepulveda v. State, 909 So.2d 568, 570 (Fla. 2d DCA 2005). The statute at § 948.06(1)(f) is very specific on the warrant required, it must be a warrant issued under s. 901.02.
The Florida Legislature Address the Mobley Ruling
In a bill that took effect on July 1, 2017, the Florida legislature amended Section 948.06, F.S., to address the recent court decision in Mobley v. State, 197 So. 3d 572 (4th DCA 2016). The court in Mobley held that a warrant issued under s. 901.02, F.S., does not toll an offender’s supervision unless the warrant was for a new crime, not just a violation of the conditions of supervision.
For cases prior to July 1, 2017, the probation term is not tolled for a technical violation under s. 948.06(1)(f), F.S. For these cases, the term of probation can expire prior to the resolution of any technical violation. The legislation removes reference to s. 901.02, F.S., in s. 948.06(1)(f), F.S., to clarify that a warrant tolling supervision may be issued for a violation of the terms and conditions of the supervision, and that a crime need not be committed for tolling to occur.
Procedures to Violate Probation in Florida
Section 901.02 requires that a judge be “satisfied that probable cause exists for the issuance of an arrest warrant for any crime committed ….” § 901.02 (emphasis added). 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). Section 901.02 requires that the warrant be for a “crime.”
If the warrant issued in a violation of probation case is for a technical violation such as failing to make restitution, then it is not a “crime.” If the warrants were not issued under section 901.02, then the defendant’s probation is not tolled. See Mobley, 197 So.3d at 574.
Filing a Motion to Dismiss When the Court Loses Jurisdiction
In many of these cases, the criminal defense attorney will file a motion to dismiss various violation of probation (VOP) warrants and/or VOP affidavit. If the circuit court denies those motions to dismiss the VOP warrant, then the criminal defense attorney can file a petition for a writ of prohibition to the district court of appeals.
As explained in English v. McCrary, 348 So.2d 293, 296 (Fla.1977), an appellate court may issue a writ of prohibition when a court within the appellate court’s supervision is “exceeding jurisdiction or usurping jurisdiction over matters not within its jurisdiction.”
The motion to dismiss the VOP warrants allege that the court lacked subject matter jurisdiction over the case because, pursuant to Mobley v. State, 197 So.3d 572 (Fla. 4th DCA 2016), the warrant alleged a non-criminal VOP, when the defendant was not arrested on the warrant until after his probation term expired.
Criminal defense attorneys who defend clients on VOP cases in Florida often called these motions the “Mobley motion.”
Mobley Doesn’t Apply When the Defendant Absconds from Supervision
The main exception to the rule announced in Mobley is that when the VOPs ultimately alleged that, during the defendant’s probation term, he had absconded from supervision, this would be an independent basis for tolling his probation term.
Pursuant to Mobley, because the warrants did not charge new crimes, the warrants did not toll his probation term. If the defendant is not arrested until after his probation term expired, the court lacked subject matter jurisdiction over the warrants and any amended affidavit.
In other words, pursuant to Mobley, because the VOP warrant(s) did not charge new crimes, the warrant(s) did not toll the defendant’s probation term. Therefore, if the defendant is not arrested until after his probation term expired, the court lacked subject matter jurisdiction over the warrants and the amended affidavit.
For this reason, Mobley is inapplicable when the VOP alleges that, during the defendant’s probation term, he had absconded from supervision, culminating with the allegation that his “current whereabouts is unknown.”
When is the Probation Tolled in Florida?
Probation is tolled when a defendant absconds from supervision. In Francois v. State, 695 So.2d 695, 697 (Fla.1997), the court found that “absconding from probation tolls the period…. One who absconds from supervision is no longer under the controlling arm of the state.”
Allegations that the defendant changing his residence without consent and that the defendant’s “current whereabouts is unknown” are sufficient to state a prima facie case that defendant was “no longer under the controlling arm of the state.” Francois, 695 So.2d at 697.
At a hearing, if the state proves those allegations to be true, then the may find, but is not required to find, that the defendant absconded from supervision, depending on the totality of the circumstances which the evidence presents. If the circuit court finds that the defendant absconded from supervision, then his probation term was tolled until he was arrested, and the circuit court would have subject matter jurisdiction over both warrants and the amended affidavit.
Other courts have determined these grounds to be sufficient to toll the period of probation:
- In Kimball v. State, 890 So.2d 495, 496 (Fla. 5th DCA 2004), the court found that “when a probationer absconds from supervision, the probationary period is tolled until the probationer is returned to supervision.”
- In Williams v. State, 529 So.2d 366, 367 (Fla. 2d DCA 1988), the court found that “when a probationer absconds from supervision, the probationary period is tolled until the probationer is once more placed under probationary supervision.”
- In Ware v. State, 474 So.2d 332, 333 (Fla. 1st DCA 1985), the court found that “whenever a probationer absconds from supervision his probationary period is tolled.”
For this reason, when a probationer absconds from supervision, the probationary period is tolled until the probationer is once more placed under probationary supervision. Stated another way, absconding from supervision is an independent basis for tolling a defendant’s probation term.
In other words, Mobley does not overrule the case law recognizing that when a probationer absconds from supervision, the probationary period is tolled until the probationer is once more placed under probationary supervision.
Failing to Report is Not Absconding
In Young v. State, 739 So.2d 1179 (Fla. 4th DCA 1999), and Langley v. State, 839 So.2d 826 (Fla. 4th DCA 2003), the court concluded that a defendant had not absconded from supervision by simply failing to file a monthly report. For instance, in Young, 739 So.2d at 1180, the court found that the defendant “was not hiding, nor had she departed from the jurisdiction of the state. She simply failed to make a report. Had her probation officer visited appellant at her listed address, she would have been able to find her….”
In Langley, 839 So.2d at 827, the court rejected “the state’s argument that the mere failure to file reports, without more, requires the court to toll the period of probation.”
This article was last updated on Friday, December 1, 2017.