126 So. 3d 405
Fla. Dist. Ct. App.2013Background
- In 1992 Zaborowski pled to grand theft and was placed on five years' probation set to expire in 1997.
- In 1994 an affidavit of violation of probation (VOP) and an arrest warrant were filed alleging two violations; he was not arrested and remained out of Florida jurisdiction.
- The 1993 version of Florida's tolling statute, § 948.06(1), contained no tolling language for pending VOP proceedings.
- The 2001 amendment to § 948.06(1) added express tolling language; the State argues later amendments can be applied retroactively.
- In 2011 Zaborowski admitted to two original alleged violations and a "snap-out" memorandum ordered him to complete the remaining 46 months of probation; no formal probation order was entered and he did not appeal.
- In 2012 the State alleged new VOPs based on the 2011 probation; the trial court found violation and sentenced him to 28 months. The appellate court reversed for lack of jurisdiction and certified two questions to the Florida Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court had jurisdiction to revoke probation in 2012 when original probation (1992) expired in 1997 and the 1993 statute lacked tolling language | Zaborowski: 1993 § 948.06(1) contained no tolling; probation expired in 1997, so later VOPs (2011/2012) lacked jurisdiction | State: later amendments (2001, 2007) are procedural and may be applied retroactively; Shenfeld supports retroactivity | Court held no jurisdiction: because no tolling existed when the initial affidavit was filed and the untolled probation expired before tolling amendments, revocation and sentence reversed |
| Whether amendments to tolling statute can be applied retroactively where affidavit filed before amendments and untolled probation expired before amendments | Zaborowski: retroactive application would violate ex post facto principles and cannot resurrect an expired probation | State: amendments are procedural (per Shenfeld) and applicable to pending VOPs | Court certified the retroactivity question to the Florida Supreme Court as one of great public importance; indicated retroactive application here would raise ex post facto concerns |
| Whether filing an affidavit of violation plus arrest warrant (pre-2001) implicitly tolled probation for absconding even absent explicit statutory tolling | Zaborowski: no implicit tolling; absent express statute probation expired | State: argues practice/history might support tolling or retroactive application of later changes | Court: rejected implicit tolling absent express statutory language or allegations that absconding occurred within original untolled period; certified related question to Fla. Supreme Court |
| Validity of "snap-out" memorandum as restarting or continuing probation and its effect on appealability/jurisdiction | Zaborowski: 2011 snap-out relieved him to be subject to revocation based on an expired term; he did not appeal | State: treated snap-out as effective to require completion of remaining term | Court: flagged problems with snap-out practice, but reversal rested on lack of jurisdiction due to expired untolled probation rather than procedural defects of snap-out |
Key Cases Cited
- Shenfeld v. State, 44 So.3d 96 (Fla. 2010) (held certain amendments to § 948.06(1) were procedural and applied in assessing tolling issues)
- Stogner v. California, 539 U.S. 607 (2003) (articulates categories of ex post facto laws, including laws that increase punishment)
- Solomon v. State, 341 So.2d 537 (Fla. 2d DCA 1977) (a court's lack of jurisdiction due to expired probation is fundamental error)