When someone is placed on supervision, there are standard terms of probation that apply to all offenders in the State of Florida. Picture the probation officer in loco parentis, ensuring that the offender reports monthly, has a job, keeps a stable residence, does not use intoxicants to excess, and the like. As a child, your parent would enforce minor behavioral violations by taking away certain freedoms. The Department of Corrections, however, prepares an affidavit of violation of probation and requests a warrant for your arrest. But a technicality in the law is allowing VOP cases to be dismissed all over Florida.
Many offenders with an active VOP warrant can avoid arrest for months or even years before being captured. Traditionally, the State would cite § 948.06(1)(f) to argue that the probationary sentence tolled, or paused, at the point the judge signed an arrest warrant. But a closer look at the subsection showed that the Legislature specified what type of arrest warrant tolled probation-one issued under § 901.02. And because § 901.02 only permits judges to issue arrest warrants where there is probable cause that a crime was committed, and a technical violation of probation is not a new crime, any VOP commencing with an arrest warrant for a technical violation would NOT toll the period of probation. Such was the ruling in Mobley v. State, 2016 WL 1445595 (Fla. 4th DCA April 13, 2016).
The Fourth DCA certified a question of great importance concerning the ruling to the Florida Supreme Court, which declined review on June 6 by a divided 4-3 majority. This becomes the law of the land until a conflicting opinion issues. In practice, I successfully gained the dismissal of a technical VOP in Polk County (Tenth Judicial Circuit) where the supervision time had expired before the arrest of my client without objection from the State last month. The word around that jurisdiction was that judges will be issuing notices to appear (an exception rarely used in the past) on technical violations, preventing any new cases from slipping through the cracks going forward until the law is addressed. Even though the trend of Alternative Sentencing Programs is increasing, every offender with an outstanding technical VOP needs to assess their end of sentence date to see if their case can be resolved without an arrest or revocation.