COUNTY CRIMINAL COURT: CRIMINAL LAW – Sentencing – Trial court was without jurisdiction to revoke defendant’s probation because the time the defendant served on probation plus the time he was given as jail credit exceeded the statutory maximum prior to the time his probation was revoked. Order revoking probation vacated.  Pitts v. State, No. CRC 05-45 APANO, (Fla. 6th Cir.App. Ct. Sept. 7, 2007).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

BRIAN PITTS

 

            Appellant,                                          

v.                                                                     Appeal No. CRC 05-45 APANO

                                                                        UCN522005AP000045XXXCR

 

STATE OF FLORIDA

 

            Appellee.

___________________________/

 

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

 

 

            THIS MATTER is before the Court on the defendant, Brian Pitts’, appeal from an order entered by the Pinellas County Court revoking his probation and sentencing him. After reviewing the briefs and record, this Court reverses the order of revocation and sentence.

            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 defendant’s 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.

            The 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 (Fla. 2d DCA 1988). It argues that the defendant began to serve his one-year probation on January 21 of 2004, and it filed the affidavit on December 28 of that same year --- within the one year probationary term according to its calculations. The State, however, completely overlooks the defendant’s argument and the fact that the defendant was given 104 days of credit at the time of his original sentencing.

            Although not cited by either party, the case of Grissinger v. State, 905 So.2d 982 (Fla. 4th DCA 2005) is on point. In Grissinger, the defendant was sentenced to one year of probation for a fist degree misdemeanor. The appellate court ruled that the trial court did not have jurisdiction when it attempted to revoke the defendant’s probation and punish him for a violation because the term of probation had expired. The appellate court held that the defendant should have been given credit for the time he spent in jail awaiting the original disposition of the charge, and the probationary term would be reduced by that amount of time. This was necessary the appellate court reasoned so that the defendant’s combined time spent in jail and on probation would not exceed the statutory maximum for the crime.

            Similarly, in the case at bar, the trial court did not have jurisdiction to revoke the defendant’s 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 defendant’s probation or sentence him.

            Given this Court’s decision on the defendant’s first issue raised in this appeal, it is not necessary to address the defendant’s 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.

            DONE AND ORDERED in Clearwater, Florida this _____ day of September, 2007.

 

 

 

                                                                        ______________________________

                                                                                          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