5D05-778 Brian Crain v. State

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State: Florida

Court: Florida Southern District Court

Docket No: 5D05-778.op

Case Date: 11/14/2005

Plaintiff: 5D05-778 Brian Crain

Defendant: State

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2005

BRIAN CRAIN, Petitioner, v. STATE OF FLORIDA, Respondent. ________________________________/ Opinion filed November 18, 2005 Petition for Writ of Prohibition, Thomas B. Smith, Respondent Judge. Robert Wesley, Public Defender and Nicole K. H. Maldonado, Assistant Public Defender, Orlando, for Petitioner. Charles J. Crist, Jr., Attorney General, Tallahassee and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Respondent. EN BANC SAWAYA, J. The issue we address in this case is whe ther an arrest affidavit to secure a warrant for violation of probation is valid if it is verified under section 92.525, Florida Statutes (2003), but not sworn to before a person authorized to administer oaths. In Jackson v. State, 881 So. 2d 666 (Fla. 5th DCA 2004), we held that an affidavit to secure a warrant for violation of probation pursuant to section 948.06(1), Florida Statutes (2002), must be sworn to before a person authorized to administer oaths and Case No. 5D05-778

that verification under section 92.525 is not appropriate. We consider this case en banc to provide additional reasoning for our decision in Jackson and to clarify that our holding in that case does not prohibit application of the good faith exception to the exclusionary rule to warrants obtained with affidavits verified under section 92.525. We will briefly discuss the factual and procedural background of this case, followed by a discussion of the oath requirement for arrest affidavits and the good faith exception. Factual And Procedural Background After pleading guilty, Brian Crain was placed on probation as part of his sentence. When he failed to comply with certain conditions of his probation, an affidavit alleging the violations was filed. The affidavit was verified pursuant to section 92.525, Florida Statutes (2003), but not sworn to before a person authorized to administer oaths. Crain filed a Petition for Prohibition claiming that the affidavit was defective because it was not properly sworn to and, therefore, the warrant that was issued pursuant thereto was also defective. Both the affidavit and warrant were secured prior to the expiration of Crain's probationary period. In the petition, which was filed after the probationary period expired, Crain asserts that since the affidavit and warrant are defective and his probationary period has expired, the trial court does not have jurisdiction to proceed with the violation hearing and he may not be held accountable for his violations. We adhere to the view adopted in Jackson and, therefore, agree with Crain that the affidavit is defective because it was not sworn to before a person authorized to administer oaths. However, we are also of the view that the defective affidavit does not vitiate the warrant based on the good faith exception to the exclusionary rule. We

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believe that Crain's petition should be denied because it is the issuance of the warrant prior to the expiration of the probationary period that vests the trial court with jurisdiction, not the filing of the affidavit. To explain our views, we begin with a

discussion of the oath requirement of the affidavit under Florida and federal law.

An Arrest Affidavit Must Be Sworn To Before A Person Authorized To Administer Oaths A. Florida Law Section 948.06(1), Florida Statutes (2003),1 governs violation of probation proceedings and provides that "[a]ny 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 . . . [and] . . . [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, the probationary period is tolled until the court enters a ruling on the violation."

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