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

                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT

JOEL CANCHOLA,                     )
                                   )
           Appellant,              )
                                   )
v.                                 )                      Case No. 2D16-5109
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed September 7, 2018.

Appeal from the Circuit Court for Manatee
County; Hunter W. Carroll, Judge.

Howard L. Dimmig, II, Public Defender,
and Matthew D. Bernstein, Assistant
Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Cornelius C. Demps,
Assistant Attorney General, Tampa, for
Appellee.



BADALAMENTI, Judge.


             Joel Canchola appeals from the trial court's final order revoking his

probation and imposing a six-month jail sentence. He argues that the trial court lacked

subject matter jurisdiction to revoke his probation because the amended violation of

probation (VOP) affidavit alleging that, among other technical violations, he had
absconded from supervision was not filed until a week after the scheduled expiration of

his probationary sentence. After de novo review, we affirm. Although filed one week

after the expiration of the original probationary term, the amended VOP affidavit was

timely because Canchola's probationary term was automatically tolled when he

absconded from supervision and remained tolled for the many months that lapsed until

he was once again placed under the probationary supervision of our state.

              Canchola was placed on one year of probation after pleading guilty to

possession of a controlled substance and resisting an officer without violence. That

probationary term was set to expire on September 2, 2015. Throughout the

probationary term, Canchola neglected to comply with various conditions of his

probation. Canchola's probation officer met with him on July 2, 2015. During that

meeting, the probation officer advised Canchola to report to the probation office

between August 3 and August 7, 2015. Canchola failed to report as instructed. On

August 18, 2015, the probation officer filed a VOP affidavit asserting three technical

violations of the terms of his probation, including Canchola's failure to undergo drug and

alcohol treatment and his failure to pay both supervision and court costs. The trial court

thereafter issued a no-bond arrest warrant for these technical violations. In the interim,

the probation officer made repeated, unsuccessful attempts to contact Canchola. This

culminated with the probation officer's visit on August 26, 2015, to Canchola's last

known home address. While there, Canchola's former roommate advised the probation

officer that Canchola moved out on June 26, 2015, and that he was unaware of his

current whereabouts.




                                           -2-
              Subsequent to that unsuccessful home visit, the probation officer, on

September 9, 2015, filed an amended VOP affidavit.1 The amended VOP affidavit

added a new charge that Canchola violated condition three of the terms of his

probation, which required that he not change his residence or leave the county of his

residence without first procuring the consent of his probation officer. The addendum

violation report filed with the amended VOP affidavit alleged that "on or about

06/26/2015, [Canchola] did move from his last known place of residence" and "[d]ue to

the offender absconding, the whereabouts of [Canchola] is [sic] currently unknown."

The amended affidavit further noted: "Warrant for Arrest Previously Requested." This

VOP case sat silent until Canchola's 2016 arrest pursuant to the outstanding VOP arrest

warrant issued by the trial court on August 13, 2015.

              Canchola thereafter filed a motion to dismiss violation of probation for lack

of subject matter jurisdiction, relying on section 948.06(1)(f), Florida Statutes (2015),

and Mobley v. State, 197 So. 3d 572 (Fla. 4th DCA 2016). At the hearing on Canchola's

motion to dismiss, Canchola argued that the filing of the August VOP affidavit did not toll

his probationary term because it failed to comply with the tolling requirements set forth

in section 948.06(1)(f). Absent tolling of his probationary term, Canchola argued, the

trial court was without subject matter jurisdiction over the amended VOP affidavit

because his probationary period had expired before the amended affidavit was filed.

The State asserted that even if the August VOP affidavit did not toll the probationary




              1Although the amended violation of probation affidavit is dated August 26,
2015, it was not stamped as "FILED FOR RECORD" until September 9, 2015, a week
after Canchola's term of probation was set to expire.



                                            -3-
period under section 948.06(1)(f), the probationary period was nevertheless tolled

because the amended VOP affidavit added a charge that Canchola had absconded

from supervision during his probationary period.

              The trial court first acknowledged that "if we were riding under [s]ection

948.06, . . . the statute requires under subsection (1)(f) certain activities that have to

happen for the purposes of tolling the statute." The trial court continued: "But the

absconsion tolling doesn't ride under section 948.06. It rides under the existing case

law . . . that was developed prior to [s]ection 948.06 being amended as it has been over

the last few years . . . ." Thus, the trial court denied Canchola's motion to dismiss. It

ruled that it retained subject matter jurisdiction over the amended VOP affidavit, even

though it was filed a week after the expiration of the probationary term, because

Canchola's probationary sentence was tolled under the common law once Canchola

absconded prior to the expiration of the probationary term. Canchola ultimately

admitted to the violations set forth in the amended VOP affidavit, and entered into a

plea agreement wherein the court revoked his probation and sentenced him to six

months' incarceration in county jail with credit for time served. He reserved his right to

appeal the court's order denying his motion to dismiss.

              On appeal, Canchola argues that the amended VOP affidavit was untimely

because it was filed after his probationary term had expired, leaving the trial court

without subject matter jurisdiction over the amended VOP affidavit. He contends that

because the amended VOP affidavit undisputedly did not fall within any of the limited

circumstances set forth in section 948.06(1)(f)'s tolling provision, the trial court erred by

denying his motion to dismiss.




                                             -4-
              As an initial matter, a probationer absconds when he removes himself

from "the controlling arm of the state" by changing his residence without consent and

leaving his probation officer without knowledge of his current whereabouts. See

Francois v. State, 695 So. 2d 695, 697 (Fla. 1997). We review a trial court's

determination of its subject matter jurisdiction de novo. Mobley, 197 So. 3d at 574

(citing Sanchez v. Fernandez, 915 So. 2d 192, 192 (Fla. 4th DCA 2005)). A trial court

retains jurisdiction over a defendant's probationary sentence. See § 948.01(1) ("Any

state court having original jurisdiction of criminal actions may . . . hear and determine

the question of the probation of a defendant in a criminal case . . . ."). But it does not

retain subject matter jurisdiction over a probationer beyond the expiration of the

probationary term. See State ex rel. Ard v. Shelby, 97 So. 2d 631, 632 (Fla. 1st DCA

1957) ("It is clear that upon expiration of the probationary period the court is divested of

all jurisdiction over the person of the probationer unless in the meantime the processes

of the court have been set in motion for revocation or modification of the

probation . . . ."); see also Kolovrat v. State, 574 So. 2d 294, 297 (Fla. 5th DCA 1991)

("[P]robation is not normally suspended or tolled retroactively unless the probationer

absconds from supervision."). Thus, absent a statutory or common law basis to toll the

probationary period, the trial court loses subject matter jurisdiction upon the expiration

of the probationary sentence. See § 948.06(1)(f) (listing three circumstances where

tolling is permitted under the statute); Williams v. State, 202 So. 3d 917, 921 (Fla. 4th

DCA 2016) (recognizing common law's independent basis to toll probationary period

when a probationer absconds from supervision and holding that "the probationary




                                            -5-
period is tolled until the probationer is once more placed under probationary

supervision").

              Although a trial court imposes a term of probation with a predictable

termination date, there are limited situations which extend the trial court's subject matter

jurisdiction over a probationer beyond the expiration of the originally imposed

probationary term. First, the legislature has set forth three situations where a

probationary term may be tolled until the trial court enters a ruling on the violation.

See § 948.06(1)(f). All three situations require the filing of a VOP affidavit. That VOP

affidavit is followed by (1) the "issuance of a warrant under s.901.02," (2) "a warrantless

arrest under [section 948.06]," or (3) "a notice to appear under this section." See

§ 948.06(1)(f).2

              Next, our common law recognizes that a probationer's absconsion from

supervision during his probationary term, apart from section 948.06(1)(f)'s tolling

provision, automatically tolls his term. See Williams, 202 So. 3d at 921; see also

Badger v. State, 23 So. 3d 813, 817 (Fla. 2d DCA 2009) (explaining the long existence




              2We    note that section 948.06(1)(f) has been amended since the 2015
version applicable here, but the three avenues to toll a probationary term have not
changed. Ch. 2017-115, § 9, at 8, Laws of Fla. Instead, only the arrest warrant
requirement has changed. That is, under the 2015 version of the statute, a warrant
must have been issued under a probable cause standard set forth in section 901.02,
whereas the 2018 version omits the reference to section 901.02. Compare § 948.06,
Fla. Stat. (2015) (permitting the tolling of the probationary term "[u]pon the filing of an
affidavit alleging a violation of probation or community control and following issuance of
a warrant under s. 901. 02" (emphasis added)), with § 948.06(1)(f), Fla. Stat. (2018)
(permitting tolling "[u]pon the filing of an affidavit alleging a violation of probation or
community control and following issuance of a warrant for such violation" (emphasis
added)). Because we decide that our case law permits tolling for VOP affidavits
alleging absconsion, we need not address Canchola's argument relating to the
application of the tolling provision in the 2015 statute.


                                            -6-
in the case law of "authority for the proposition that probation is automatically tolled

during a period when the probationer has absconded"); Williams v. State, 529 So. 2d

366, 367 (Fla. 2d DCA 1988) (recognizing that a probationary period is tolled when a

probationer absconds from supervision); Kimball v. State, 890 So. 2d 495, 496 (Fla. 5th

DCA 2004) (explaining that "when a probationer absconds from supervision, the

probationary period is tolled until the probationer is returned to supervision" (citing Ware

v. State, 474 So. 2d 332, 334 (Fla. 1st DCA 1985))); Ware, 474 So. 2d at 333 (Fla. 1st

DCA 1985) ("[W]henever a probationer absconds from supervision his probationary

term is tolled.").

               In Francois, our supreme court explained an important distinction between

absconding from probation and other violations of probation in the milieu of tolling the

probationary period. It explained that when a defendant violates the terms of his

probation through an act other than absconding, "a probationer remains under

supervisory restraint after an affidavit of violation is filed and an affidavit can be

amended to include subsequent violation allegations." Francois, 695 So. 2d at 697

(emphasis added). Stated differently, a probationer who violates a term of his probation

but remains under the supervisory restraint of the state after a VOP affidavit is filed

must continuously bear the associated restraints on his liberty, including the possibility

of being charged with subsequent violations of conditions of his probation. Id.

Contrastingly, one who absconds from his probationary supervision leaves those

restraints all together and bears no risk of subsequent violation allegations unless he

returns to the supervisory restraint of the state. See id. ("One who absconds from

supervision is no longer under the controlling arm of the state."). It thus is logical that a




                                             -7-
probationary sentence is automatically tolled until such time an absconder again is

returned to supervision and subject to those restraints on his liberty. As will be

discussed, our court and sister courts of appeal have recognized the automatic tolling of

a probationary term for a probationer who absconds during his probationary term.

              In Williams, we addressed the automatic tolling of a probationary sentence

when a probationer absconds from supervision. There, the probationer was originally

charged with violation of probation by an affidavit dated July 8, 1985, well within the

probationary term set to expire on July 8, 1986. 529 So. 2d at 367. The probationer,

however, absconded from supervision and did not report her whereabouts until after the

probationary term had already expired. Id. Approximately one week after the

probationer reported her whereabouts, the State filed an amended VOP affidavit,

alleging the "unauthorized change of residence." Id. Notwithstanding the State's filing

of the amended VOP affidavit after the probationer's probationary term had expired, our

court reasoned that when a probationer absconds from supervision, "the probationary

term is tolled until the probationer is once more placed under probationary supervision."

Id. (citing Ware, 474 So. 2d at 333).

              Here, like Williams, the probation officer filed a VOP affidavit prior to the

expiration of Canchola's probationary term. Also like Williams, the probation officer

amended that VOP affidavit, charging that Canchola had made an unauthorized change

of residence. Critically, also like Williams, the amended VOP affidavit charging that

Canchola absconded was filed after the scheduled expiration of the original

probationary term. That the amended VOP affidavit alleging that Canchola absconded

during the probationary term was filed after that term was set to expire is of no




                                            -8-
consequence. This is because Canchola's probationary term automatically tolled from

the moment he absconded until he was "once more placed under probationary

supervision." Id.; cf. Kimball, 890 So. 2d at 496 ("[W]hen a probationer absconds from

supervision, the probationary period is tolled until the probationer is returned to

supervision." (citing Ware, 474 So. 2d at 334)); see also Badger, 23 So. 3d at 817

(explaining the long existence in the case law of "authority for the proposition that

probation is automatically tolled during a period when the probationer has absconded"

(emphasis added)).

              Thus, a trial court retains subject matter jurisdiction over a VOP affidavit

alleging that the probationer absconded prior to the expiration of the original

probationary term for which the trial court would have otherwise had subject matter

jurisdiction. This is because the probationer's conduct of absconding from his

supervision automatically tolled that probationary term until he was once more placed

under probationary supervision. Williams, 529 So. 2d at 367. We find our Williams

decision both controlling and indistinguishable in any meaningful way to the facts here.

              As for Canchola's reliance on Mobley, the Fourth District recently clarified

that its Mobley decision did "not overrule the case law recognizing that when a

probationer absconds from supervision, the probationary period is tolled until the

probationer is once more placed under probationary supervision." Williams, 202 So. 3d

at 921. There, the Fourth District reasoned that unlike Mobley, the VOP affidavit in

Williams alleged that the probationer absconded during his term of probation, which is

an independent basis for tolling his probationary term. Id. It explained that its Mobley

decision involved the applicability of the statutory tolling provision set forth in section




                                             -9-
948.06(1)(f), which is distinct from the tolling of a probationary sentence under Florida's

common law. Id. at 920. Its Mobley decision, the Fourth District explained, turned on

the State's failure to satisfy the requirements for tolling set forth in section 948.06(1)(f);

namely, it failed to issue the proper arrest warrant under the statute. Id. Without that

statutory tolling mechanism, the Fourth District explained, the trial court in Mobley

lacked jurisdiction over a VOP affidavit that did not allege that a probationer absconded.

Id.

              Turning to the facts before it, the Fourth District in Williams thus held that

if a VOP affidavit ultimately charges that the probationer absconded during the

probationary period, the trial court maintains jurisdiction over the probationer because

the probationary period automatically tolls upon the probationer leaving "the controlling

arm of the state" and remains tolled until the probationer "is once more placed under

probationary supervision." Id. at 921. We agree with both the holding and reasoning

set forth in the Fourth District's Williams opinion, including its refusal to apply Mobley to

circumstances where, as here, a probationer is alleged to have violated the terms of his

probation by absconding during the probationary period.

              We reaffirm that a probationary term is automatically tolled when a

probationer absconds from his supervision. The probationary period remains tolled until

such time that the probationer again is under supervision by the arm of our state. See

Williams, 529 So. 2d at 367; see also Badger, 23 So. 3d at 817; Williams, 202 So. 3d at

921; Kimball, 890 So. 2d at 496; Ware, 474 So. 2d at 333. Here, the amended VOP

affidavit ultimately culminating with an allegation that Canchola absconded during his

probationary period was filed only one week after the expiration of Canchola’s original




                                             - 10 -
probationary term. Accounting for the many months Canchola's probationary period

remained tolled after he absconded from supervision, the amended VOP affidavit was

timely filed.

                We thus affirm the trial court's denial of Canchola's motion to dismiss for

lack of subject matter jurisdiction. In so doing, we caution the State to act both diligently

and in good faith in its filing of any VOP affidavit alleging that a probationer absconded

prior to the expiration of the original probationary term.

                Affirmed.



LaROSE, C.J., and BLACK, J., Concur.




                                             - 11 -
