4D04-3013-Kimberly Stambaugh v. State of Florida

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State: Florida

Court: Florida Fourth District Court

Docket No: 4D04-3013

Case Date: 01/26/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JANUARY TERM 2005 KIMBERLY STAMBAUGH , Petitioner, v. STATE OF FLORIDA, Respondent. CASE NO. 4D04-3013 On January 28, 2004, the state filed an additional VOP affidavit based on six additional violations , unrelated to the charges contained in the February 25 affidavit. No warrant issued for these additional violations. On February 20, 2004, the state nolle prossed the substantive battery charge that was the basis for the February 25, 2003 VOP charge. On February 26, 2004, Stambaugh moved to quash the January, 2004 VOP affidavit, arguing that the county court lacked jurisdiction to proceed because no warrant had been signed within the probationary period. On March 2, 2004, the county court denied the motion to quash, ruling that a signed VOP warrant was not required for the January 28 affidavit, because a warrant had been signed for the original VOP affidavit. On April 2, 2004, the state withdrew or dismissed the allegation that Stambaugh had violated her probation by committing a battery, as alleged in the February, 2003 VOP affidavit. The record does not reflect whether the county court judge either expressly or tacitly approved the dismissal. Stambaugh moved for reconsideration of the county court's order denying her motion to quash, which was denied. Stambaugh then petitioned for writ of prohibition in the circuit court, which denied relief on the authority of McGraw v. State, 700 So. 2d 183 (Fla. 4th DCA 1997). McGraw indicated that a VOP proceeding commenced On February 25, 2003, the state filed an affidavit of violation of probation ("VOP"), based on a new charge of battery. Based on the affidavit, a county judge signed an arrest warrant. on probation for twelve months for driving under the influence.

Opinion filed January 26, 2005 Petition for writ of certiorari to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jack H. Cook, Judge; L.T. Case No. 02-18580 TCA02. Carey Haughwout, Public Defender, Daniel Cohen, and David John McPherrin, Assistant Public Defenders, West Palm Beach, for petitioner. Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for respondent. GROSS, J. The core issue in this case is whether the filing of only an affidavit of violation of probation, without the issuance of an arrest warrant, tolls a probationary period under Chapter 948, Florida Statutes (2002). We hold that under these circumstances, the probationary period is not tolled. This case reaches us on Kimberly Stambaugh's petition for certiorari review of a circuit court order denying her petition for writ of prohibition in her county court prosecution for violation of probation. On February 5, 2003, Stambaugh was placed

with either the filing of a VOP affidavit with the clerk or the trial court's issuance of an arrest warrant. Based on McGraw, the circuit court ruled that the January 28, 2004 affidavit for the additional charges had been timely filed during the probationary period, so that the probationary period was tolled. Certiorari lies from this circuit court order denying prohibition against the county court. For a writ of certiorari filed from a decision of the circuit court rendered in its appellate capacity, the standard of review is whether the circuit court denied the petitioner procedural due process or departed from the essential requirements of law to cause a miscarriage of justice. See Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530-31 (Fla. 1995); see also Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla. 2003); Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000). In Heggs, the supreme court said that the term "`applied the correct law' is synonymous with `observing the essential requirements of law.'" 658 So. 2d at 530 (citation omitted); accord State v. Schreiber, 868 So. 2d 564, 565 (Fla. 4th DCA 2004). Stambaugh's argument in this case is that the circuit court departed from the essential requirements of law in ruling that the county court had jurisdiction over the VOP prosecution. The crucial question here is whether Stambaugh's probationary term had expired before the county court addressed the merits of the January, 2004 VOP allegations. In Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981), this court wrote that: [o]nce a term of probation has expired, a court lacks jurisdiction to entertain an application for revocation of probation based upon 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 44. "Appropriate steps" to "revoke or modify" probation under Clark require the issuance of an arrest warrant based upon an affidavit alleging a VOP. See Howard v. State ,

883 So. 2d 879, 880 (Fla. 4th DCA 2004).1 "The filing of the affidavit and issuance of the warrant toll the probationary period `until the court enters a ruling on the violation.'

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