               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT

STATE OF FLORIDA,                            )
                                             )
             Appellant,                      )
                                             )
v.                                           )        Case No. 2D17-549
                                             )
T.A.K.,                                      )
                                             )
             Appellee.                       )
                                             )

Opinion filed March 23, 2018.

Appeal from the Circuit Court for Pinellas
County; Patrice W. Moore, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kiersten E. Jensen,
Assistant Attorney General, Tampa, for
Appellant.

Howard L. Dimmig, II, Public Defender,
and John C. Fisher, Assistant Public
Defender, Tampa, for Appellee.



LaROSE, Chief Judge.

             The State appeals an order dismissing T.A.K.'s delinquency case due to

the expiration of an earlier imposed probationary term. We have jurisdiction. See Fla.

R. App. P. 9.145(c)(1)(A). We affirm.
                                    Background Facts

              T.A.K. pleaded guilty to the delinquent act of battery. The trial court

withheld adjudication of delinquency and placed T.A.K. on six months' probation. The

probationary term was to end on October 28, 2016. On September 15, 2016, the State

filed an unsworn "Notice of violation of court order," stating that T.A.K. had failed to

comply with his probationary requirements. The State wanted the trial court to hold

T.A.K. in contempt for his "fail[ure] to comply with multiple sanctions required by his

case manager." The notice specified no material facts underlying the State's request.

              The trial court scheduled an evidentiary hearing for October 25, 2016.

T.A.K. was present for that hearing before Judge Moore. However, the parties were

unable to proceed because defense counsel represented that he might have a conflict

of interest. Consequently, the trial court rescheduled the hearing to October 27, 2016.

On October 26, the State filed an unsworn petition seeking to revoke T.A.K.'s probation.

              T.A.K. did not appear at the October 27 hearing. The State stated that, if

T.A.K. were present, it was prepared to proceed on the revocation of probation.

Nevertheless, because of the approaching October 28 expiration of T.A.K.'s

probationary term, the State asked the trial court to extend its jurisdiction beyond

October 28. The trial court (Judge Coleman) agreed. Judge Coleman reasoned that

T.A.K.'s probationary term had been tolled by the State's filing of the October 26

petition. He also concluded that tolling occurred because the revocation proceeding

began at the October 27 hearing, prior to the termination date.

              On January 27, 2017, T.A.K. filed a motion to dismiss the petition due to

the expiration of jurisdiction. Following a February 2, 2017, hearing, the trial court



                                            -2-
(Judge Moore) granted the motion, despite Judge Coleman's earlier ruling to extend

jurisdiction.

                                      State's Argument

                The State raises two arguments. First, the State contends that it properly

filed the petition and that revocation proceedings were initiated before the October 28

expiration of probation. Thus, according to the State, the trial court retained jurisdiction.

Second, the State argues that the trial court impermissibly considered T.A.K.'s motion to

dismiss, as it was in actuality an untimely motion for rehearing. See Fla. R. Juv. P.

8.130(b)(1) (requiring a motion for rehearing "be made within 10 days of the entry of the

order being challenged"). We reject the second argument without further comment. We

reject the first argument, too; however, we write to explain why tolling did not apply. In

doing so, we address the manner in which the State purported to initiate probation

revocation proceedings against T.A.K.

                                           Analysis

                There is no tolling provision applicable to juvenile probation violation

proceedings. See T.L.H. v. State, 93 So. 3d 396, 398 (Fla. 2d DCA 2012) ("We agree

with the decision of the Fifth District that there is no provision in either the statutes or

the rules governing juvenile delinquency proceedings that allows for tolling of probation

upon the filing of an affidavit and the issuance of a warrant." (citing K.L.T. v. State, 65

So. 3d 102 (Fla. 5th DCA 2011))); see also X.G. v. State, 106 So. 3d 90, 91 n.1 (Fla. 2d

DCA 2013) ("X.G.'s probation was set to expire . . . on August 11, 2011, and even

though the affidavit/petition was filed in July 2011, there is no tolling provision applicable

to juvenile probation proceedings." (first citing R.H. v. State, 93 So. 3d 1166, 1167 (Fla.



                                              -3-
2d DCA 2012); then citing T.L.H., 93 So. 3d at 398-99)). Consequently, whether the

probation violation proceedings were initiated prior to the expiration of T.A.K.'s probation

is of no moment. And, of course, we cannot rewrite the juvenile rules or statutes to suit

the State.1 See Fla. Dep't of Revenue v. Fla. Mun. Power Agency, 789 So. 2d 320, 324

(Fla. 2001) ("Under fundamental principles of separation of powers, courts cannot

judicially alter the wording of statutes where the Legislature clearly has not done so.").

              We now address the process by which the State pursued T.A.K.'s alleged

probation violations. Upon a probation violation, "the [Department of Juvenile Justice]

or the state attorney may bring the child before the court on a petition alleging a

violation of the program." § 985.439(1)(b), Fla. Stat. (2016). We have not hesitated to

reverse orders revoking a juvenile's probation absent a filed petition. See R.H., 93 So.

3d at 1167 ("Because section 985.439(1)(b) and [Florida Rule of Juvenile Procedure]

8.120(a)(3) both require either the State or the DJJ to file a petition alleging a violation

of juvenile probation before revocation proceedings can occur and because no petition

was filed in this case, we conclude that R.H.'s probation expired prior to the revocation

hearing."); T.L.H., 93 So. 3d at 398-99 (holding that, in the absence of a violation

petition, the complaint filed by the arresting officer was insufficient to initiate revocation

proceedings). Here, the state attorney filed a petition.

              However, that is not the end. Rule 8.120(a)(2) provides in pertinent part

as follows: "Any proceeding alleging a violation shall be initiated by the filing of a sworn




              1Interestingly,  in early January 2017, T.A.K.'s juvenile probation officer
filed a written recommendation "to withdraw[] the contempt of court" because
"jurisdiction was lost for the battery case." Apparently, the State did not heed this
advice.
                                             -4-
affidavit of the material facts supporting the allegation(s). The affidavit shall be

executed by the child’s juvenile probation officer or other person having actual

knowledge of the facts." See also T.L.H., 93 So. 3d at 398 ("Florida Rule of Juvenile

Procedure 8.120, dealing with revocation of juvenile probation, provides that a

proceeding alleging a violation of probation shall be initiated by the filing of a sworn

affidavit executed by the child's juvenile probation officer 'or other person having the

actual knowledge of the facts.' " (quoting Fla. R. Juv. P. 8.120(a)(2))); M.T. v. State, 805

So. 2d 898, 899 (Fla. 2d DCA 2001) ("With regard to juveniles, any proceeding alleging

a violation of probation shall be initiated by the filing of a sworn affidavit of the material

facts supporting the allegations." (citing Fla. R. Juv. P. 8.120(a)(2))). Rule 8.120 also

specifies that "[w]hen revocation proceedings are sought by the state attorney . . . the

proceedings shall be initiated by the filing of a petition alleging violation of juvenile

probation. The petition shall incorporate and reference the affidavit described in

subdivision (a)(2)." Fla. R. Juv. P. 8.120(a)(3) (emphasis added).

              The State's petition neither incorporated nor referenced the required

affidavit. And for good reason. Our record reflects that no such affidavit was ever filed.

Accordingly, the State's effort to initiate revocation proceedings against T.A.K. never

really started, despite its seeming knowledge for more than a month that T.A.K. was

allegedly in violation of probation. Cf. T.L.H. 93 So. 3d at 399 ("Both the DJJ and the

State had over thirty days in which to file a petition, attach the complaint filed by the

deputy sheriff, and have it served on the child (whose location was known), before the

expiration of his probation. Neither took that action and . . . none of the statutory and

rule requirements governing juvenile violation of probation proceedings had been met.").



                                             -5-
              T.A.K.'s case is analogous to D.T.M. v. State, 46 So. 3d 623 (Fla. 5th DCA

2010). In D.T.M., the Fifth District granted the juvenile's habeas petition and ordered

that the juvenile be released from commitment and reinstated to probation.2 Id. at 624.

The court reasoned that "[t]he plain language of rule 8.120 requires a sworn affidavit";

and because none had been filed, the trial court improperly found that he was in

violation of his probation. Id. at 623-24.

              Similar to D.T.M., we see no affidavit in our record. We are faced with an

unsworn notice and an unsworn petition. As noted earlier, the affidavit must be

executed by either "the child’s juvenile probation officer or other person having actual

knowledge of the facts." Fla. R. Juv. P. 8.120(a)(2). That did not happen.

              Further, the State's contention that its initiation of the probation revocation

proceedings on October 27 tolled expiration of T.A.K.'s probation bears closer scrutiny.

The State insists that tolling occurred because it had "filed a violation of probation

petition on October 26th and was ready to proceed on the petition at the revocation

hearing scheduled for October 27th."

              Be that as it may, as noted earlier, there is no tolling applicable here.

Moreover, we emphasize that the State failed to file an accompanying affidavit. "Among

the minimal requirements of due process in a revocation proceeding is written notice of

the alleged violation." M.T., 805 So. 2d at 899 (citing Burton v. State, 651 So. 2d 793

(Fla. 1st DCA 1995)). In M.T., this court reversed the order revoking the juvenile's




              2The   D.T.M. court stated that "[t]his order is without prejudice to the
initiation of a proper revocation hearing." Id. at 624. The juvenile's probation had not
yet expired at the time the D.T.M. opinion issued. In contrast, T.A.K.'s probation
termination date expired prior to entry of the order now on appeal.
                                             -6-
probation, concluding that in the absence of a properly filed affidavit under rule

8.120(a)(2), "the appellant did not receive proper notice of the claimed violation that was

to serve as the basis for the revocation of his community control, he was not afforded

due process." Id. (citing State v. Spratling, 336 So. 2d 361 (Fla. 1976)). Similarly, due

to the State's failure to file an affidavit, T.A.K. lacked adequate notice of the claimed

violations. We will not, in this case, sacrifice due process for the sake of equitable

tolling in favor of the State. Cf. Major League Baseball v. Morsani, 790 So. 2d 1071,

1076 n.11 (Fla. 2001) ("Equitable tolling, which involves no misconduct on the part of

the defendant, may delay the running of the limitations period based on the plaintiff's

blameless ignorance and the lack of prejudice to the defendant." (citing Machules v.

Dep't of Admin., 523 So. 2d 1132 (Fla. 1988))).

                                        Conclusion

              Because the State failed to follow the mandated process through which

T.A.K. could be brought before the trial court to answer for the alleged probation

violations, T.A.K.'s probationary term expired on October 28. Therefore, the trial court

properly dismissed the State's petition for violation of probation.

              Affirmed.



KHOUZAM and CRENSHAW, JJ., Concur.




                                            -7-
