JOEL CANCHOLA v. STATE OF FLORIDA , 255 So. 3d 442 ( 2018 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOEL CANCHOLA, )
)
Appellant, )
)
v. ) Case No. 2D16-5109
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed September 7, 2018.
Appeal from the Circuit Court for Manatee
County; Hunter W. Carroll, Judge.
Howard L. Dimmig, II, Public Defender,
and Matthew D. Bernstein, Assistant
Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Cornelius C. Demps,
Assistant Attorney General, Tampa, for
Appellee.
BADALAMENTI, Judge.
Joel Canchola appeals from the trial court's final order revoking his
probation and imposing a six-month jail sentence. He argues that the trial court lacked
subject matter jurisdiction to revoke his probation because the amended violation of
probation (VOP) affidavit alleging that, among other technical violations, he had
absconded from supervision was not filed until a week after the scheduled expiration of
his probationary sentence. After de novo review, we affirm. Although filed one week
after the expiration of the original probationary term, the amended VOP affidavit was
timely because Canchola's probationary term was automatically tolled when he
absconded from supervision and remained tolled for the many months that lapsed until
he was once again placed under the probationary supervision of our state.
Canchola was placed on one year of probation after pleading guilty to
possession of a controlled substance and resisting an officer without violence. That
probationary term was set to expire on September 2, 2015. Throughout the
probationary term, Canchola neglected to comply with various conditions of his
probation. Canchola's probation officer met with him on July 2, 2015. During that
meeting, the probation officer advised Canchola to report to the probation office
between August 3 and August 7, 2015. Canchola failed to report as instructed. On
August 18, 2015, the probation officer filed a VOP affidavit asserting three technical
violations of the terms of his probation, including Canchola's failure to undergo drug and
alcohol treatment and his failure to pay both supervision and court costs. The trial court
thereafter issued a no-bond arrest warrant for these technical violations. In the interim,
the probation officer made repeated, unsuccessful attempts to contact Canchola. This
culminated with the probation officer's visit on August 26, 2015, to Canchola's last
known home address. While there, Canchola's former roommate advised the probation
officer that Canchola moved out on June 26, 2015, and that he was unaware of his
current whereabouts.
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Subsequent to that unsuccessful home visit, the probation officer, on
September 9, 2015, filed an amended VOP affidavit.1 The amended VOP affidavit
added a new charge that Canchola violated condition three of the terms of his
probation, which required that he not change his residence or leave the county of his
residence without first procuring the consent of his probation officer. The addendum
violation report filed with the amended VOP affidavit alleged that "on or about
06/26/2015, [Canchola] did move from his last known place of residence" and "[d]ue to
the offender absconding, the whereabouts of [Canchola] is [sic] currently unknown."
The amended affidavit further noted: "Warrant for Arrest Previously Requested." This
VOP case sat silent until Canchola's 2016 arrest pursuant to the outstanding VOP arrest
warrant issued by the trial court on August 13, 2015.
Canchola thereafter filed a motion to dismiss violation of probation for lack
of subject matter jurisdiction, relying on section 948.06(1)(f), Florida Statutes (2015),
and Mobley v. State, 197 So. 3d 572 (Fla. 4th DCA 2016). At the hearing on Canchola's
motion to dismiss, Canchola argued that the filing of the August VOP affidavit did not toll
his probationary term because it failed to comply with the tolling requirements set forth
in section 948.06(1)(f). Absent tolling of his probationary term, Canchola argued, the
trial court was without subject matter jurisdiction over the amended VOP affidavit
because his probationary period had expired before the amended affidavit was filed.
The State asserted that even if the August VOP affidavit did not toll the probationary
1Although the amended violation of probation affidavit is dated August 26,
2015, it was not stamped as "FILED FOR RECORD" until September 9, 2015, a week
after Canchola's term of probation was set to expire.
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period under section 948.06(1)(f), the probationary period was nevertheless tolled
because the amended VOP affidavit added a charge that Canchola had absconded
from supervision during his probationary period.
The trial court first acknowledged that "if we were riding under [s]ection
948.06, . . . the statute requires under subsection (1)(f) certain activities that have to
happen for the purposes of tolling the statute." The trial court continued: "But the
absconsion tolling doesn't ride under section 948.06. It rides under the existing case
law . . . that was developed prior to [s]ection 948.06 being amended as it has been over
the last few years . . . ." Thus, the trial court denied Canchola's motion to dismiss. It
ruled that it retained subject matter jurisdiction over the amended VOP affidavit, even
though it was filed a week after the expiration of the probationary term, because
Canchola's probationary sentence was tolled under the common law once Canchola
absconded prior to the expiration of the probationary term. Canchola ultimately
admitted to the violations set forth in the amended VOP affidavit, and entered into a
plea agreement wherein the court revoked his probation and sentenced him to six
months' incarceration in county jail with credit for time served. He reserved his right to
appeal the court's order denying his motion to dismiss.
On appeal, Canchola argues that the amended VOP affidavit was untimely
because it was filed after his probationary term had expired, leaving the trial court
without subject matter jurisdiction over the amended VOP affidavit. He contends that
because the amended VOP affidavit undisputedly did not fall within any of the limited
circumstances set forth in section 948.06(1)(f)'s tolling provision, the trial court erred by
denying his motion to dismiss.
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As an initial matter, a probationer absconds when he removes himself
from "the controlling arm of the state" by changing his residence without consent and
leaving his probation officer without knowledge of his current whereabouts. See
Francois v. State, 695 So. 2d 695, 697 (Fla. 1997). We review a trial court's
determination of its subject matter jurisdiction de novo. Mobley, 197 So. 3d at 574
(citing Sanchez v. Fernandez, 915 So. 2d 192, 192 (Fla. 4th DCA 2005)). A trial court
retains jurisdiction over a defendant's probationary sentence. See § 948.01(1) ("Any
state court having original jurisdiction of criminal actions may . . . hear and determine
the question of the probation of a defendant in a criminal case . . . ."). But it does not
retain subject matter jurisdiction over a probationer beyond the expiration of the
probationary term. See State ex rel. Ard v. Shelby, 97 So. 2d 631, 632 (Fla. 1st DCA
1957) ("It is clear that upon expiration of the probationary period the court is divested of
all jurisdiction over the person of the probationer unless in the meantime the processes
of the court have been set in motion for revocation or modification of the
probation . . . ."); see also Kolovrat v. State, 574 So. 2d 294, 297 (Fla. 5th DCA 1991)
("[P]robation is not normally suspended or tolled retroactively unless the probationer
absconds from supervision."). Thus, absent a statutory or common law basis to toll the
probationary period, the trial court loses subject matter jurisdiction upon the expiration
of the probationary sentence. See § 948.06(1)(f) (listing three circumstances where
tolling is permitted under the statute); Williams v. State, 202 So. 3d 917, 921 (Fla. 4th
DCA 2016) (recognizing common law's independent basis to toll probationary period
when a probationer absconds from supervision and holding that "the probationary
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period is tolled until the probationer is once more placed under probationary
supervision").
Although a trial court imposes a term of probation with a predictable
termination date, there are limited situations which extend the trial court's subject matter
jurisdiction over a probationer beyond the expiration of the originally imposed
probationary term. First, the legislature has set forth three situations where a
probationary term may be tolled until the trial court enters a ruling on the violation.
See § 948.06(1)(f). All three situations require the filing of a VOP affidavit. That VOP
affidavit is followed by (1) the "issuance of a warrant under s.901.02," (2) "a warrantless
arrest under [section 948.06]," or (3) "a notice to appear under this section." See
§ 948.06(1)(f).2
Next, 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. See Williams, 202 So. 3d at 921; see also
Badger v. State, 23 So. 3d 813, 817 (Fla. 2d DCA 2009) (explaining the long existence
2We note that section 948.06(1)(f) has been amended since the 2015
version applicable here, but the three avenues to toll a probationary term have not
changed. Ch. 2017-115, § 9, at 8, Laws of Fla. Instead, only the arrest warrant
requirement has changed. That is, under the 2015 version of the statute, a warrant
must have been issued under a probable cause standard set forth in section 901.02,
whereas the 2018 version omits the reference to section 901.02. Compare § 948.06,
Fla. Stat. (2015) (permitting the tolling of the probationary term "[u]pon the filing of an
affidavit alleging a violation of probation or community control and following issuance of
a warrant under s. 901. 02" (emphasis added)), with § 948.06(1)(f), Fla. Stat. (2018)
(permitting tolling "[u]pon the filing of an affidavit alleging a violation of probation or
community control and following issuance of a warrant for such violation" (emphasis
added)). Because we decide that our case law permits tolling for VOP affidavits
alleging absconsion, we need not address Canchola's argument relating to the
application of the tolling provision in the 2015 statute.
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in the case law of "authority for the proposition that probation is automatically tolled
during a period when the probationer has absconded"); Williams v. State, 529 So. 2d
366, 367 (Fla. 2d DCA 1988) (recognizing that a probationary period is tolled when a
probationer absconds from supervision); Kimball v. State, 890 So. 2d 495, 496 (Fla. 5th
DCA 2004) (explaining that "when a probationer absconds from supervision, the
probationary period is tolled until the probationer is returned to supervision" (citing Ware
v. State, 474 So. 2d 332, 334 (Fla. 1st DCA 1985))); Ware, 474 So. 2d at 333 (Fla. 1st
DCA 1985) ("[W]henever a probationer absconds from supervision his probationary
term is tolled.").
In Francois, our supreme court explained an important distinction between
absconding from probation and other violations of probation in the milieu of tolling the
probationary period. It explained that when a defendant violates the terms of his
probation through an act other than absconding, "a probationer remains under
supervisory restraint after an affidavit of violation is filed and an affidavit can be
amended to include subsequent violation allegations." Francois, 695 So. 2d at 697(emphasis added). Stated differently, a probationer who violates a term of his probation
but remains under the supervisory restraint of the state after a VOP affidavit is filed
must continuously bear the associated restraints on his liberty, including the possibility
of being charged with subsequent violations of conditions of his probation. Id.Contrastingly, one who absconds from his probationary supervision leaves those
restraints all together and bears no risk of subsequent violation allegations unless he
returns to the supervisory restraint of the state. See id. ("One who absconds from
supervision is no longer under the controlling arm of the state."). It thus is logical that a
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probationary sentence is automatically tolled until such time an absconder again is
returned to supervision and subject to those restraints on his liberty. As will be
discussed, our court and sister courts of appeal have recognized the automatic tolling of
a probationary term for a probationer who absconds during his probationary term.
In Williams, we addressed the automatic tolling of a probationary sentence
when a probationer absconds from supervision. There, the probationer was originally
charged with violation of probation by an affidavit dated July 8, 1985, well within the
probationary term set to expire on July 8, 1986. 529 So. 2d at 367. The probationer,
however, absconded from supervision and did not report her whereabouts until after the
probationary term had already expired. Id. Approximately one week after the
probationer reported her whereabouts, the State filed an amended VOP affidavit,
alleging the "unauthorized change of residence." Id. Notwithstanding the State's filing
of the amended VOP affidavit after the probationer's probationary term had expired, our
court reasoned that when a probationer absconds from supervision, "the probationary
term is tolled until the probationer is once more placed under probationary supervision."
Id. (citing Ware, 474 So. 2d at 333).
Here, like Williams, the probation officer filed a VOP affidavit prior to the
expiration of Canchola's probationary term. Also like Williams, the probation officer
amended that VOP affidavit, charging that Canchola had made an unauthorized change
of residence. Critically, also like Williams, the amended VOP affidavit charging that
Canchola absconded was filed after the scheduled expiration of the original
probationary term. That the amended VOP affidavit alleging that Canchola absconded
during the probationary term was filed after that term was set to expire is of no
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consequence. This is because Canchola's probationary term automatically tolled from
the moment he absconded until he was "once more placed under probationary
supervision." Id.; cf. Kimball, 890 So. 2d at 496 ("[W]hen a probationer absconds from
supervision, the probationary period is tolled until the probationer is returned to
supervision." (citing Ware, 474 So. 2d at 334)); see also Badger, 23 So. 3d at 817(explaining the long existence in the case law of "authority for the proposition that
probation is automatically tolled during a period when the probationer has absconded"
(emphasis added)).
Thus, a trial court retains subject matter jurisdiction over a VOP affidavit
alleging that the probationer absconded prior to the expiration of the original
probationary term for which the trial court would have otherwise had subject matter
jurisdiction. This is because the probationer's conduct of absconding from his
supervision automatically tolled that probationary term until he was once more placed
under probationary supervision. Williams, 529 So. 2d at 367. We find our Williams
decision both controlling and indistinguishable in any meaningful way to the facts here.
As for Canchola's reliance on Mobley, the Fourth District recently clarified
that its Mobley decision did "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." Williams, 202 So. 3d
at 921. There, the Fourth District reasoned that unlike Mobley, the VOP affidavit in
Williams alleged that the probationer absconded during his term of probation, which is
an independent basis for tolling his probationary term. Id. It explained that its Mobley
decision involved the applicability of the statutory tolling provision set forth in section
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948.06(1)(f), which is distinct from the tolling of a probationary sentence under Florida's
common law. Id. at 920. Its Mobley decision, the Fourth District explained, turned on
the State's failure to satisfy the requirements for tolling set forth in section 948.06(1)(f);
namely, it failed to issue the proper arrest warrant under the statute. Id. Without that
statutory tolling mechanism, the Fourth District explained, the trial court in Mobley
lacked jurisdiction over a VOP affidavit that did not allege that a probationer absconded.
Id.Turning to the facts before it, the Fourth District in Williams thus held that
if a VOP affidavit ultimately charges that the probationer absconded during the
probationary period, the trial court maintains jurisdiction over the probationer because
the probationary period automatically tolls upon the probationer leaving "the controlling
arm of the state" and remains tolled until the probationer "is once more placed under
probationary supervision." Id. at 921. We agree with both the holding and reasoning
set forth in the Fourth District's Williams opinion, including its refusal to apply Mobley to
circumstances where, as here, a probationer is alleged to have violated the terms of his
probation by absconding during the probationary period.
We reaffirm that 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. See
Williams, 529 So. 2d at 367; see also Badger, 23 So. 3d at 817; Williams, 202 So. 3d at
921; Kimball, 890 So. 2d at 496; Ware, 474 So. 2d at 333. Here, the amended VOP
affidavit ultimately culminating with an allegation that Canchola absconded during his
probationary period was filed only one week after the expiration of Canchola’s original
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probationary term. Accounting for the many months Canchola's probationary period
remained tolled after he absconded from supervision, the amended VOP affidavit was
timely filed.
We thus affirm the trial court's denial of Canchola's motion to dismiss for
lack of subject matter jurisdiction. In so doing, we caution the State to act both diligently
and in good faith in its filing of any VOP affidavit alleging that a probationer absconded
prior to the expiration of the original probationary term.
Affirmed.
LaROSE, C.J., and BLACK, J., Concur.
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