IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
v.†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Appeal No. CRC 05-45 APANO
Opinion filed ________________.
Appeal from an order and sentence
entered by the Pinellas County Court
County Court Judge Paul A. Levine
Brian Pitts, Pro Se
Christie L. Biggs, Esquire
Assistant State Attorney
ORDER AND OPINION
MATTER is before the Court on the defendant, Brian Pittsí, appeal from an order
entered by the
††††††††††† The defendant entered a no contest plea to the charges of practicing law without a license. As part of his sentence he was sentenced to 12 months probation. While on probation, the defendant failed to fulfill the terms of his probation by not paying any restitution or costs. The State filed an affidavit of violation, and the defendant ultimately had his probation revoked and was sentenced to 90 days in jail. A lien was entered against the defendant for the amount of the restitution and costs.
††††††††††† The defendant claims that the trial court was without jurisdiction to revoke his probation. At the time the defendant was originally sentenced, he was given credit for 104 days --- the amount of time spent in jail awaiting trial on the charge. He then served almost a year on probation until the State filed an affidavit alleging the defendant violated his probation. The defendant points out that since the maximum sentence for the first degree misdemeanor was one year, his probation expired before the State filed its affidavit. Thus, the trial court was without jurisdiction to revoke his probation. The defendant argues that his probationary term was actually the one year minus the 104 days of credit that he was given. According to the defendantís calculations, his probationary term expired 261 days from the time he started his probation in January. The termination date would be October 11, 2004. That is, the 104 days of credit plus 261 days from the time probation started on January 21.
State cites several cases that say proceedings to revoke probation must be
commenced prior to the expiration date of the probation. See e.g., Minninger
v. State, 517 So. 2d 758 (
not cited by either party, the case of Grissinger v. State, 905 So.2d
††††††††††† Similarly, in the case at bar, the trial court did not have jurisdiction to revoke the defendantís probation because the probation had expired prior to the time the affidavit was filed. The defendant was given credit for 104 days at the time he was originally sentenced. The one year probationary term should have been reduced by this amount of time. Thus, since the probationary term started in January and lasted for one year minus the 104 days, the probationary term expired in October. The State filed the affidavit of violation in December --- after the probationary term expired. Therefore, the trial court was without jurisdiction to revoke the defendantís probation or sentence him.
††††††††††† Given this Courtís decision on the defendantís first issue raised in this appeal, it is not necessary to address the defendantís remaining issues. The order revoking probation and the sentence are reversed.
††††††††††† IT IS THEREFORE ORDERED that the order revoking probation and the
sentence are reversed.
AND ORDERED in
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††† Linda R. Allan
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †† Circuit Court Judge
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††† R. Timothy Peters†
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †††††††††††††Circuit Court Judge
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† † †††††John A. Schaefer
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††† Circuit Court Judge
cc:††††††† Brian Pitts
††††††††††† Office of the State Attorney
††††††††††† Honorable Paul A. Levine