Florida/Georgia Personal Injury & Workers Compensation

...the trial court may, in its discretion, impose a fine upon him or her and place him or her on probation or into community control as an alternative to imprisonment.”). Both are conditional forms of release subject to revocation. See Fla. Stat. § 948.06....

...y the parole and probation commission or the court." Other pertinent statutory provisions, provide: "949.11 Hearing. — Any person whose parole or probation agreement is revoked pursuant to § 949.10 shall be given a hearing pursuant to § 947.23 or § 948.06. The hearing shall be held within ten days from the date of such arrest, the provisions of § 947.23 or § 948.06 notwithstanding....

...e temporary revocation. "949.12 Immediate temporary revocation; bail not allowed. — A person whose parole or probation has been temporarily revoked pursuant to § 949.10 shall not be admitted to bail prior to the hearing provided for in § 949.11. "948.06 Violation of probation; revocation; modification; continuance....

...Florida law nowhere authorizes a mere arrest without probable cause. Section 949.10, Florida Statutes, F.S.A., read in para materia with Sections 949.11 and 949.12, Florida Statutes, F.S.A, provides that prior to the revocation hearing to be conducted pursuant to the requirements of Section 948.06, Florida Statutes, F.S.A., the probationer who has been arrested on a felony charge shall not be permitted to be admitted to bail....

...tion decision." *500 and determined that a probationer like a parolee is entitled to a preliminary and a final revocation hearing under the conditions specified in Morrissey . The instant proceedings provided pursuant to Sections 949.10, 949.11, and 948.06 clearly accord with the mandates of Morrissey and Gagnon ....

...vidence upon which the revocation is based would be inadmissible upon trial of the accused for a crime, it is competent for the trial court to consider it on the issue of compliance with the conditions under which suspension of sentence was granted. Section 948.06(1) simply provides for an informal hearing whereby the trial court may determine whether the conditions of the probation order have been violated....

...After the decisions in Poore and Wayne, the Fifth District, sitting en banc, reconsidered this issue in Franklin v. State, 526 So.2d 159 (Fla. 5th DCA 1988) (en banc). The en banc court in Franklin receded from dicta in Poore and Wayne suggesting that section 948.06(1), Florida Statutes (1987), [2] violated double jeopardy when applied to violations of probation where either a true split sentence or a probationary split sentence had been imposed....

...Such a resentencing does not violate the prohibition against double jeopardy. Williams, 650 F.2d at 61; State v. Payne, 404 So.2d 1055 (Fla. 1981). Provided there is a relevant new fact not previously considered, the trial court constitutionally is permitted to impose a greater sentence, as authorized by section 948.06....

...period of probation; (4) a Villery sentence, consisting of period of probation preceded by a period of confinement imposed as a special condition; and (5) straight probation. If the defendant violates his probation in alternatives (3), (4) and (5), section 948.06(1) and Pearce permit the sentencing judge to impose any sentence he or she originally might have imposed, with credit for time served and subject to the guidelines recommendation. However, if alternative (2) is used as the original sentence, the sentencing judge in no instance may order new incarceration that exceeds the remaining balance of the withheld or suspended portion of the original sentence. Section 948.06(1) would not apply in this latter instance because no new fact would be available for consideration by the sentencing judge....

...NOTES [1] This conclusion was erroneous. Our decisions, as well as Florida Rule of Criminal Procedure 3.701(d)(14), permit a one-cell upward departure upon a probation violation without requiring a reason for the departure. See State v. Pentaude, 500 So.2d 526, 528 (Fla. 1987). [2] Section 948.06(1), Florida Statutes (1987), provides in pertinent part: If such probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previou...

...to what he [or she] must do or refrain from doing while on probation." 358 So.2d at 185. The due process protection of adequate notice is not only found in the constitution, see art. I, § 9, Fla. Const., but also in the Florida Statutes. See, e.g., § 948.06(1)(a), Fla. Stat. (2005) (setting forth the process for assessment and resolution of probation violations). For instance, section 948.06(1)(a) authorizes the arrest of a probationer and subsequent revocation of probation upon adequate proof if "there are reasonable grounds to believe that a probationer or offender in community control has violated his or her probation or community control in a material respect." Id....

...The statute further expressly authorizes the probation supervisor to arrest a probationer without a warrant and to bring the probationer before the court which entered the probation order whenever there is a reasonable ground to believe the probationer has violated his probation. § 948.06, Fla....

...King, 648 So.2d at 190 (Benton, J., concurring and dissenting). The issue presented here is whether a trial judge, upon revocation of probation, can lawfully impose an habitual felony offender sentence, despite having declined to impose such a sentence at the original sentencing. Based upon section 948.06(1), Florida Statutes (1989), [3] and the fact that King violated his order of probation, the district court concluded that the trial judge properly imposed an habitual offender sentence upon revocation of King's probation....

...delines. The sentence imposed after revocation of probation or community control may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure. [3] Section 948.06(1), Florida Statutes (1989), deals with violation of probation and the consequences thereof. The statute provides, in pertinent part, that upon revocation of probation "the court shall ... impose any sentence which it might have originally imposed before placing the probationer on probation." § 948.06(1), Fla....

...This is a petition for writ of certiorari to review the decision of the Third District Court of Appeal reported at 296 So.2d 519 (Fla.App.3d 1974), upon its certified question. The question involves probation which is preceded by a specified period of jail time and requires a construction of Sections 948.01(4), 948.03, and 948.06, Florida Statutes (1973)....

...STAT., F.S.A.), UPON REVOCATION OF THE PROBATION CAN THE COURT IMPOSE, ON THE ALREADY SENTENCED DEFENDANT, A NEW SENTENCE OF IMPRISONMENT IN THE STATE PENITENTIARY FOR A PERIOD OF YEARS, SUCH AS THE COURT COULD HAVE ORIGINALLY IMPOSED (AS PERMITTED BY § 948.06 FLA....

...probation pursuant to Section 948.01(4), Florida Statutes (1973), who subsequently violates that probation may be sentenced to imprisonment by the trial judge for the same period of years as the court could have originally imposed in accordance with Section 948.06, Florida Statutes (1973), without the necessity of establishing a term of sentence and withholding a part of it at the initial sentencing proceedings....

...laced on four years probation, conditioned on his spending one year in jail. The defendant left the jail without permission, which resulted in the trial court's revoking his probation and sentencing him to three years in the state prison pursuant to Section 948.06, Florida Statutes....

...he initial sentencing proceeding. A similar result was reached in Woodruff v. State, 309 So.2d 55 (Fla.App.2d 1975), and Harrell v. State, 308 So.2d 51 (Fla.App.2d 1975). In Ivey v. State, 308 So.2d 565 (Fla.App.2d 1975), the Second District, citing Section 948.06(2), Florida Statutes, held the time spent in jail pursuant to a split sentence alternative was a valid condition of probation and the defendant was not entitled to credit for the jail time served upon revocation of that probation....

...iately followed by the withholding of a part thereof for use in the event probation is violated. This interpretation is inconsistent with the procedure for straight probation as authorized by Section 948.01(3), Florida Statutes, and in conflict with Section 948.06, Florida Statutes....

...[3] We further hold that a defendant must be given credit for the time spent in jail pursuant to the split sentence probation order whether it is imposed pursuant to Section 948.01(4), Florida Statutes, or as a condition of probation under Section 948.03, Florida Statutes. We construe Section 948.06(2), Florida Statutes, to apply only to time spent under probation supervision without incarceration....

...I therefore respectfully dissent. NOTES [1] Art. V, § 3(b)(1), (3), Fla. Const. [2] See Chapters 921 and 922, Florida Statutes. [3] Our interpretation herein is consistent with the provisions of RCrP 3.790. [4] The order is governed by Sections 948.03 and 948.06, Florida Statutes (1973), and the trial judge is not restricted by the sixty-day provision of RCrP 3.800....

...conditions of probation. See Williams v. State, 578 So.2d 846 (Fla. 4th DCA 1991) (finding that extension of probationary period at subsequent restitution hearing when sentence already imposed at earlier sentencing hearing violated double jeopardy). Section 948.06, Florida Statutes (1987), "provides the sole means by which the court may place additional terms on a previously entered order of probation or community control." Clark v. State, 579 So.2d 109, 110 (Fla. 1991). Before probation may be enhanced, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge. Id. at 110-11; § 948.06(1), Fla....

...We must now determine whether a valid conviction is a condition precedent to the *599 revocation of a probation order grounded upon a violation of so-called "Condition H", which merely requires that the accused "must live and remain at liberty without violating any law." Under Section 948.06 a Florida probationer is entitled to a notice and hearing in any proceeding for the revocation of the probation order....

...d toward the new sentence, i.e., the term of incarceration imposed." 625 So.2d at 878. It should not be read to hold that time previously served on probation may not be credited toward a new probationary term after revocation of probation. Likewise, section 948.06, Florida Statutes (1987), [2] cannot be read to preclude the crediting of time already served on probation in this case. Section 948.06 provides in pertinent part: (1) ......

...or offender on probation or into community control. (2) No part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve. *744 Like our decision in Holmes, section 948.06(2) does not address the question presented here....

...Only after probation is revoked may pronouncement and imposition of a sentence be made upon a defendant. Fla.R.Crim.P. 3.790(b). In such event the court may impose any sentence which it might have originally imposed before placing the defendant on probation. § 948.06(1), Fla....

...ion. If a condition of probation is found to have been violated, the court may modify or continue the probation or may revoke the probation and impose any sentence which it might originally have imposed before placing the defendant on probation. See § 948.06, Fla....

...But she testified that, on January 11, 1995, appellant came to her office and provided an address. [3] She did not testify that she withheld consent for any change of residence. Revocation of probation is appropriate when a probationer violates "his probation... in a material respect." § 948.06(3), Fla.Stat.(1995)....

...(1) whether a trial court, before finding a violation of probation for failure to pay restitution, must inquire into the probationer's ability to pay and determine whether the failure to pay was willful; and (2) whether the burden-shifting scheme of section 948.06(5), Florida Statutes (2011), [1] which places the burden on the probationer to prove his or her inability to pay by clear and convincing evidence, is constitutional....

...Once the State has done so, it is constitutional to then shift the burden to the probationer to prove inability to pay to essentially rebut the State's evidence of willfulness. However, while it is constitutional to place the burden on the probationer to prove inability to pay, the aspect of section 948.06(5) that requires the probationer to prove inability to pay by the heightened standard of clear and convincing evidence is unconstitutional....

...r or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts *1004 legally to acquire the resources to do so.' § 948.06(5), Fla....

...(2011)); (2) when the State or the victim attempts to enforce the restitution order (§ 775.089(5), (6)(b), Fla. Stat.); and (3) if the defendant is placed on probation, when the trial court considers revoking probation based on the defendant's failure to pay restitution as ordered (§§ 948.032, 948.06(5), Fla....

...and financial resources; the willfulness of the defendant's failure to pay; and any other special circumstances that may have a bearing on the defendant's ability to pay." Id. This statute was enacted in 1984, [5] shortly after Bearden was decided. Section 948.06, Florida Statutes, the statute at issue in this case, governs probation revocation proceedings....

...Only if alternate measures are not adequate to meet the state's interests in punishment and deterrence may the court imprison a probationer or offender in community control who has demonstrated sufficient bona fide efforts to pay restitution or the cost of supervision. § 948.06(5), Fla. Stat. (2011). This provision in the statute was added in 1984 as section 948.06(4)....

...rmination with regard to the probationer's ability to pay. See Martin v. State, 937 So.2d 714, 715-16 (Fla. 1st DCA 2006). In fact, the First District has held that the failure of the trial court to make a finding of willfulness is reversible error: Section 948.06(5) does not relieve the trial court of its duty to determine that the violation was willful by proving the probationer's ability to pay....

...In Guardado, 562 So.2d at 696-97, the Third District stated: With regard to the third ground, failure to make payments for the cost of supervision, it is true that there should have been a finding of ability to pay. See Brown v. State, 537 So.2d 180, 181 (Fla. 3d DCA 1989). However, under subsection 948.06(4), Florida Statutes (1989),[ [7] ] inability to pay the cost of supervision is a defense which the probationer must prove by clear and convincing evidence....

...As stated by this Court in Stephens, 630 So.2d at 1091, there must be a determination that the probationer has, or has had, the ability to pay but has willfully refused to do so. Thus, the trial court must inquire into a probationer's ability to pay before determining willfulness. Constitutionality of Section 948.06(5) We next turn to the constitutional validity of the burden-shifting scheme of section 948.06(5). We first address the failure of section 948.06(5) to require the State to establish willfulness; and second, the constitutional validity of the requirement in section 948.06(5) that the probationer prove inability to pay by the heightened standard of clear and convincing evidence....

...at 668, 103 S.Ct. 2064. Accordingly, if the State seeks to revoke probation on the basis of failure to pay, it must introduce evidence on the probationer's ability to pay that would support the trial court's finding of willfulness. The plain text of section 948.06(5), however, does not expressly address this requirement but only requires the State to establish failure to pay before the burden of proof shifts to the defendant to prove inability to pay. The absence of any recognition or mention of the element of willfulness as a first step in section 948.06(5) could alone render the statute unconstitutional. Reading section 948.06(5) without the constitutionally required element would undermine its validity, and, therefore, we have an obligation to give the *1013 statute a constitutional construction where such a construction is possible. See Tyne v. Time Warner Entm't Co., 901 So.2d 802, 810 (Fla.2005). The problem with section 948.06(5) is not what is in the statute, but rather what is not. Section 948.06(5) can be reconciled with Stephens and Bearden by simply reading into the statute the recognized element that there must be evidence presented of willfulness and construing it in pari materia with section 948.032, Florida Statutes (201...

...robationer's employment status, earning ability, financial resources, willfulness of failure to pay, and any other special circumstances that may have a bearing on the probationer's ability to pay. Construing these statutes in pari materia preserves section 948.06(5) and the Legislature's intent to shift the burden of proving inability to pay to the defendant, while at the same time respecting the underpinning of the constitutional requirement of a determination of willfulness as enunciated in Bearden and Stephens....

...d (2) in a civil enforcement action where incarceration is not at stake, the probationer is held only to a preponderance of the evidence standard to demonstrate his or her financial resources. We further consider that the Legislature has not amended section 948.06(5) with respect to placing the burden on the probationer to prove inability to pay by clear and convincing evidence since adding the requirement in 1984—at which time the financial resources of the defendant were a factor that the tri...

...PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur. CANADY, C.J., dissents with an opinion. LEWIS, J., dissents with an opinion, in which POLSTON, J., concurs. CANADY, C.J., dissenting. The central issue presented by this case, in which the petitioner challenges the constitutionality of section 948.06(5), Florida Statutes (2011), is whether in probation revocation proceedings, the burden of showing inability to pay may be placed on a probationer who has failed to make payments ordered as a condition of probation....

...e State "present sufficient evidence" of the probationer's ability to pay before revocation for failure to pay is proper. Majority op. at 1002. Transforming the clear meaning of the statutory text, the majority invokes the avoidance canon and treats section 948.06(5) as merely giving the probationer an opportunity to rebut the State's evidence of ability to pay....

...to pay in probation revocation proceedings where the State seeks revocation on the ground that the probationer has failed to make payments required as a condition of probation. Neither case—nor any other authority—provides any basis for declaring section 948.06(5) unconstitutional or for the majority's use of the avoidance canon to rewrite the statute. Our decision in Stephens does not address the enforcement or constitutionality of section 948.06(5)....

...The statement does not transform probation revocation proceedings from adversarial proceedings in which the judge sits as a neutral arbiter into inquisitorial proceedings in which the judge's role is to investigate matters which are not raised by the probationer. The majority states that section 948.06(5)'s burden-shifting scheme "is constitutionally permissible," majority op....

...at 1013, but then—based on an unwarranted reading of Bearden and Stephens —resorts to "reading into the statute" a requirement that entirely defeats the burden-shifting provision adopted by the Legislature. Majority op. at 1013. This is not coherent. It does violence to section 948.06(5), and it does violence to the avoidance canon....

...The avoidance canon cannot properly justify the rewriting and the evisceration of a statutory provision in the manner accomplished by the majority decision. If the majority's understanding of Bearden was correct—which it is not—the proper course of action would be to declare section 948.06(5) unconstitutional....

...t. The petitioner presented wholly insufficient evidence to establish his inability to pay. Although the petitioner indicated that he had no job, he did not say what efforts he had made to obtain a job. For a probationer to show an inability to pay, section 948.06(5) requires that the probationer establish a lack of resources to pay the amount ordered "despite sufficient bona fide efforts legally to acquire the resources to do so." The petitioner totally failed to show any such "bona fide effort...

...I would disapprove Shepard v. State, 939 So.2d 311 (Fla. 4th DCA 2006), Blackwelder v. State, 902 So.2d 905 (Fla. 2d DCA 2005), and Osta v. State, 880 So.2d 804 (Fla. 5th DCA 2004). LEWIS, J., dissenting. The majority holds that the requirement of section 948.06(5), Florida Statutes (2011), that a defendant must prove inability to pay restitution by clear and convincing evidence to avoid revocation of probation is unjustifiably onerous and unconstitutional. I dissent. The majority has failed to demonstrate that section 948.06(5) is unconstitutional, and has incorrectly elevated the due process rights inherent in a revocation proceeding....

...y of the defendant. See id. If the State proves a willful violation of the restitution order by the defendant, the burden shifts to the defendant to prove inability to pay by clear and convincing evidence if he or she is to avoid revocation. See id. § 948.06(5)....

...ility to pay, and the burden that such a party carries. As a result, the Second, Fourth, and Fifth Districts have all implicitly held that the burden is on the State to prove inability to pay in probation revocation hearings, but none have held that section 948.06(5) is unconstitutional....

...osts or restitution, there must be evidence and a finding that the probationer had the ability to pay.") (citing Warren v. State, 924 So.2d 979, 980-81 (Fla. 2d DCA 2006)); Blackwelder v. State, 902 So.2d 905, 907 n. 1 (Fla. 2d DCA 2005) ("[S]ection 948.06(5), despite its plain language, cannot relieve the State of its burden to prove that the violation was willful by proving the probationer's ability to pay.") (citing Osta v....

..., and in order to prove `willfulness' the State must provide evidence that the probationer has the ability to pay restitution but willfully refuses to do so.") (citing Stephens, 630 So.2d at 1090; Hartzog v. State, 816 So.2d 774 (Fla. 2d DCA 2002)). Section 948.06(5), however, expresses with indisputable clarity the Legislature's intent to shift the burden of proving inability to pay by clear and convincing evidence to a defendant who asserts such a claim. This burden-shifting element of section 948.06(5) is clear and unambiguous and does not require judicial construction....

...efer to the Legislature's clear intention to shift the burden of proving inability to pay by clear and convincing evidence in a probation revocation proceeding to the probationer. Further, because the Second, Fourth, and Fifth Districts did not hold section 948.06(5) to be unconstitutional, they should not supersede the Legislature's indisputably clear intent and the clear language of the statute to place the burden of proving inability to pay by clear and convincing evidence on a probationer. The burden with regard to inability to pay set forth in section 948.06(5) is therefore constitutionally sound and the statute must be applied as written....

...bationer to have his or her probation revoked absent an inquiry into ability to pay or a specific finding of willfulness; (3) disapprove all Second, Fourth, and Fifth District decisions to the extent they disregard the burden-shifting required under section 948.06(5); and (4) approve the approach of the First District in Martin. I dissent. POLSTON, J., concurs. NOTES [1] The 2008 version of section 948.06(5) at issue in this case is identical to the current 2011 version of the statute....

...[4] Sections 985.437 and 985.0301, Florida Statutes (2011), pertain to restitution ordered in the juvenile context. [5] See ch. 84-363, § 5, Laws of Fla. [6] The Legislature has made only minor grammatical changes to the provision since enacting it in 1984. [7] Section 948.06(4), Florida Statutes (1989), is identical to the current section 948.06(5) for purposes of this case....

...ial court added a more onerous condition to his community control without a hearing. The district court concluded that there is no requirement of a judicial proceeding where voluntary modification occurs before the filing of an affidavit pursuant to section 948.06, Florida Statutes (1987), alleging a violation of probation or community control....

...The court terminated his probation and sentenced him to eighteen months' imprisonment. The district court of appeal reversed, accepting Holcombe's argument that the trial court erred in enhancing the conditions of his original probation without complying with section 948.06. The court relied on cases holding that a probationer cannot agree with his probation officer to an extension of probation in lieu of compliance with the procedures of section 948.06....

...State, 516 So.2d 331 (Fla. 1st DCA 1987); Gurganus v. State, 391 So.2d 806 (Fla. 5th DCA 1980); Patrick v. State, 336 So.2d 1253 (Fla. 1st DCA 1976). [2] The trial court erred in this case by enhancing the terms of Clark's community control without notice and hearing. Section 948.06, Florida Statutes (1987), provides the sole means by which the court may place additional terms on a previously entered order of probation or community control....

...[3] Before probation or community control may be enhanced, either by extension of the period or by addition of terms, a violation of probation or community control must be formally charged and the probationer *111 must be brought before the court and advised of the charge following the procedures of section 948.06....

...unity control, the adjudication of guilt, and the sentence of imprisonment be vacated. It is so ordered. SHAW, C.J., and OVERTON, BARKETT, KOGAN and HARDING, JJ., concur. McDONALD, J., dissents: "I would approve the decision under review." NOTES [1] Section 948.06(1), Florida Statutes (1987), provides: (1) Whenever within the period of probation or community control there is reasonable ground to believe that a probationer or offender in community control has violated his probation or community c...

...tory maximum for the underlying offense. 644 So.2d at 587. We agree with the Bragg court's treatment of the issue and adopt its reasoning as our own. This is consistent with our previous decisions in Summers and Roundtree and also is in harmony with section 948.06(1), (2), Florida Statutes (1993)....

...[1] Accordingly, we answer the certified question in the affirmative, quash the decision *334 under review, and remand for further proceedings consistent with this opinion. It is so ordered. GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur. NOTES [1] Section 948.06(1) states that if probation or community control is revoked, the court may "impose any sentence which it might have originally imposed before placing the probationer or offender on probation or community control." Section 948.06(2) provides that "[n]o part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve."

...I can find nothing in the pertinent statutes or Sentencing Guidelines that would authorize the sentencing court in this case to add the mistakenly omitted prior convictions to Roberts' scoresheet. The court obtained its authority to resentence Roberts after revocation of his probation from section 948.06, Florida Statutes (1991), and the Sentencing Guidelines found in the Florida Rules of Criminal Procedure. [1] Section 948.06(1) provides, in pertinent part: If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and...

...ter sentence than the legislature has authorized); Goene, 577 So.2d at 1308 (Double Jeopardy Clause bars punishment in excess of that permitted by law). Under the circumstances present here, Roberts could legitimately expect that, in accordance with section 948.06(1) and the Sentencing Guidelines, his sentence would not be increased more than one cell from the range established on the original scoresheet absent valid reasons for departure....

...It has long been the rule 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 pursuant to Section 948.06, F.S....

...However, it asks us to create an exception that would allow consideration of untimely filed charges contained in an amended affidavit of probation violation when the newly charged violations occur at or near the end of the probationary term. We decline to do so. The pertinent language contained in sections 948.04(2) and 948.06(1), Florida Statutes (1991), is substantially the same as the statutory language upon which the jurisdictional rule was first based....

...3d DCA 1968) (relying on 1967 version of both provisions). Section 948.04(2) provides: Upon the termination of the period of probation, the probationer shall be released from probation and is not liable to sentence for the offense for which probation was allowed. *405 Consistent with this pronouncement, section 948.06(1), which deals with revocation and modification of probation, is triggered when "within the period of probation" there are reasonable grounds to believe that a condition of probation has been violated in a material way. This Court agreed that these provisions are jurisdictional in Carroll v. Cochran, 140 So.2d at 301. Although there have been various amendments to sections 948.06(1) and 948.04(2) throughout the years, [2] there has been no legislative response to our opinion in Carroll or to the subsequent district court opinions holding that a court lacks jurisdiction to consider new allegations contained in an untimely amended affidavit....

...I do not believe that a probationer who commits a probation violation "within the period of probation" may escape any punishment for the violation if the law enforcement authority does not file a probation violation petition or have the probationer arrested within the period of probation. Section 948.06(1), Florida Statutes (1993), provides: Whenever within the period of probation or community control there are reasonable grounds to believe that a probationer or offender in community control has violated his probation or community con...

...been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control. Clearly, the violation must occur during the probationary period, but, as I read section 948.06(1), there is no requirement that the petition setting forth probable cause of a probation violation must be filed within that period....

...thorities were unable to file the petition for violation of probation because they did not know that the offender committed the offense until after the probation period had expired. My interpretation of the phrase "within the period of probation" in section 948.06(1) is that the phrase is intended to allow probation supervisors or law enforcement officers to arrest probationers without a warrant during that period....

...McDONALD, Senior Justice, concurs. NOTES [1] Art. V. § 3(b)(4), Fla. Const. [2] See, e.g., ch. 74-112, § 10; ch. 91-280, § 5, Laws of Fla. (rewrote section 948.04(2)); ch. 89-526, § 38, Laws of Fla. (amended and made nonsubstantive language changes to section 948.06(1)).

...months' probation for grand theft, all of which were to run concurrently. In the 2005 case, Appellant was sentenced to 12 months' probation, to *675 be served concurrently with the other case. In accordance with the terms and conditions set forth in section 948.06, Florida Statutes (2005), the following are among Appellant's 22 general conditions of probation: (1) Each month you will make a full and truthful report to your Probation Officer on the form provided for that purpose....

...Smith v. State, 711 So.2d 100, 102 (Fla. 1st DCA 1998). Condition (2) It is undisputed that Appellant failed to pay the full costs of his supervision before his probation was revoked. Once non-payment is shown, the probationer has the burden under section 948.06(5), Florida Statutes (2005), to prove, by clear and convincing evidence, his or her inability to pay....

...ility to pay but has willfully refused to do so." Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994); see Bryant v. State, 546 So.2d 762 (Fla. 5th DCA 1989). The same principle applies to the requirement to pay the costs of probationary supervision. Section 948.06(5) does not relieve the trial court of its duty to determine that the violation was willful by proving the probationer's ability to pay....

...rpelli was entitled to a preliminary and a final revocation hearing as specified in Morrissey v. Brewer. In Florida there are three separate procedures for arresting and holding a probationer as prelude to a probation revocation hearing. First, F.S. Section 948.06, F.S.A., authorizes any probation supervisor, upon reasonable ground to believe a violation has occurred, to arrest a probationer without a warrant, and forthwith return him to the court granting probation....

...provide for right of bail before determination of guilt by verdict or acceptance of plea of guilty; the logical dividing line is not formal judgment of conviction, see for an analogous problem, State v. Gazda, Fla.S.Ct. 1971, 257 So.2d 242. [5] F.S. Section 948.06(1), F.S.A....

...[9] Because he is not the trial judge and the warrant has been issued by a trial circuit judge without bail endorsed [RCrP Rule 3.130(d)] or because RCrP Rule 3.790 vests bail discretion in the judge granting the probation. See Bernhardt v. State, Fla., 288 So.2d 490, opinion filed January 9, 1974. [10] See F.S. Section 948.06(1), F.S.A....

...[12] A full hearing includes the procedural due process requirements of notice, disclosure, opportunity to be heard and to present witnesses and the limited right of confrontation and cross-examination, contemplated in Morrissey for a final hearing. [13] F.S. Section 948.06(1), F.S.A....

...e based judicially issued warrant or held after a RCrP Rule 3.131 type preliminary hearing or held after a Morrissey style preliminary hearing or after appearing before the judge granting probation who has committed him without bail, under F.S. Sec. 948.06(1), F.S.A., "to await further hearing." [18] This requirement of a final revocation hearing within 10 days would meet the Morrissey requirement for the preliminary hearing to be held "as promptly as convenient after arrest while information is...

...ence for the aggravated assault that exceeded the five year statutory maximum for a third-degree felony. See § 775.082(3)(d), Fla. Stat. (1991). [2] The district court affirmed the sentence. Young, 678 So.2d at 429. The court found that pursuant to section 948.06(1), Florida Statutes (1993), [3] section 948.06(2), Florida Statutes (1993), [4] and this Court's decision in State v....

...fense. Id. at 429. The court questioned whether the legislature and this Court intended such a result and consequently certified the question before us. Id. We agree with the district court that Young's sentence should be affirmed. We have held that section 948.06 is applicable when a defendant violates a probationary split sentence. See Poore v. State, 531 So.2d 161, 164 (Fla.1988). Further, we have held that section 948.06(1), in conjunction with the United States Supreme Court decision in North Carolina v....

...Holmes, 360 So.2d at 383; see also State v. Summers, 642 So.2d 742, 743 (Fla.1994). Likewise, credit cannot be given for time served on community control. See Ogden v. State, 605 So.2d 155, 158 (Fla. 5th DCA 1992), and cases cited therein. [6] This is because section 948.06(2), prohibits a court from crediting probation or community control toward a sentence of incarceration. Specifically, section 948.06(2) provides that no part of the time a defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve....

...[2] Young could not challenge the five-and-a-half year sentence imposed for the armed robbery on a similar basis, because the statutory maximum for a first-degree felony is greater than five and one-half years. § 775.082(3)(a), Fla. Stat. (1991). [3] The pertinent portion of section 948.06(1) reads as follows: If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control. [4] Section 948.06(2) provides: No part of the time that a defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve. [5] The term "sentence" in section 948.06 refers to incarceration....

...First, Sanders argued that the trial court erred in revoking his probation and sentencing him for the third-degree felony offenses because Sanders had completed *867 his probation for those offenses. The Second District agreed. The Second District explained that pursuant to section 948.06, Florida Statutes (1999), the trial court did not have jurisdiction over the offenses for which Sanders had completed his probation....

...efendant was placed on probation" and that the trial court shall "impose any sentence which it might have originally imposed before placing the probationer on probation." Id. at 235 (quoting Adekunle v. State, 916 So.2d 950, 952 (Fla. 4th DCA 2005); § 948.06(1), Fla....

...in scoring. Our holding in Roberts is thus inconsistent with the reasoning employed by the Second District. Next, the Second District determined that the third-degree felonies should be scored exactly as they were at the original sentencing because section 948.06(1), Florida Statutes, provides that in a sentencing proceeding following a violation of probation, the trial court shall "impose any sentence which it might have originally imposed before placing the probationer on probation." Sanders, 16 So.3d at 235 (quoting 948.06(1), Fla....

...The Second District concluded that scoring the third-degree felonies as additional offenses "would be the only possible way to ensure" that Sanders faced the same sentencing possibilities upon the revocation of his probation. Id. We conclude, however, that this broad reading of the relevant provision of section 948.06(1) cannot be reconciled with the plain import of sections 921.0021(1) and 921.0024(1)(b) or with our reasoning in Roberts. In the context of the related statutory provisions, it is more reasonable to understand the provision of 948.06(1) as stating a rule that parallels the provision of rule 3.704(d)(28) that sentences imposed upon revocation of probation "must be imposed according to the sentencing law applicable at the time of the commission of the original offense." Havi...

...nce and Mack *750 was placed on straight probation rather than being sentenced to a guidelines period of incarceration followed by a period of probation as in King. The State contends that because probation is not a sentence, King is inapposite, and section 948.06(1), Florida Statutes (1989), controls....

...use when the probationary portion of Mack's sentence was extended in 1996, his original true split sentence "faded away" and was replaced by the new probationary period; thus, the State argues, the subsequent five-year sentence was permissible under section 948.06(1), Florida Statutes (1989), which provided that upon violation of probation, the sentencing judge may "impose any sentence which it might have originally imposed before placing the probationer or offender on probation." In light of th...

...§ 948.03, F.S.A.). (2) If, during the said five years, it should appear to said court that further supervision would be beneficial to the Appellant or to society, the said court may by order extend the supervision period for two extra years (F.S. §§ 948.04, 948.06 and 800.01, F.S.A.)....

...st be returned to the Circuit Court for a determination of that charge. This may result in revocation, modification or continuance of probation. If it results in revocation, the Circuit Court must adjudge the Appellant guilty and sentence him. (F.S. § 948.06, F.S.A.) It is true the statutes authorize trial courts to enter orders of probation and expressly authorize appeal therefrom the same as if they were final judgments....

...the term of probation imposed "is not a convicted person." Thomas v. State, 356 So.2d 846, 847 (Fla. 4th DCA), cert. denied, 361 So.2d 835 (Fla.1978). However, if probation is revoked, the defendant must be adjudicated guilty of the charged offense. § 948.06(1), Fla....

...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 pursuant to Section 948.06, F.S., F.S.A....

...The latitude of inquiry is such that even though evidence upon which the revocation is based would be inadmissible upon trial of the accused for a crime, it is competent for the trial court to consider it on the issue of compliance with the conditions under which suspension of sentence was granted. Section 948.06(1) simply provides for an informal hearing whereby the trial court may determine whether the conditions of the probation order have been violated....

...harged and proven or admitted, unless the probationer or offender has been previously adjudged guilty of the offense, and impose any sentence which it might have originally imposed before placing the defendant on probation or into community control. § 948.06(1), Fla....

...nally imposed, reinstating the original order of parole, ordering the placement of the parolee into a community control program, or entering such other order as is proper. § 947.23(6)(a)-(b), Fla. Stat. (2003). [7] This law is currently codified as section 948.06(2)(b), Florida Statutes (2007)....

...d upon a youthful offender who violates probation or community control and provides in pertinent part: A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06(1)....

...tion for a youthful offender who violates probation. Prior to 1985, section 958.14 did not specifically delineate a permissible sanction that could be imposed on a youthful offender who violated community control, other than to note, by reference to section 948.06(1), that upon revocation of community control, a trial court could impose any sentence which it might have originally imposed....

...Thus, in our view, it does not truly enhance the State's position. [5] See § 958.14, Fla. Stat. (1983) (pre-1985 version)(providing in full that "[a] violation or alleged violation of the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06(1)."). [6] A violation or alleged violation of the terms of a community control program shall subject the youthful offender of the provisions of s. 948.06(1)....

...After serving his entire prison sentence and part of his community control, he violated the conditions of his community control. Id. The trial court refused to give him credit against his subsequent prison sentence for the time he spent in community control. Id. We upheld that decision, noting that section 948.06(2), Florida Statutes (1993), provided that "[n]o part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve." We interpreted that provision (since renumbered as section 948.06(3), see ch....

...Fraser, we explained, merely "recognized a limited exception to this general rule" for those unusual circumstances "when the original term of community control is revoked as illegal." Id. at 77 n. 6. [1] *390 After Young, three district courts have held that the plain meaning of section 948.06(3) forbids jail-time credit for time spent in community control, with the limited exception adopted in Fraser....

...5th DCA 2001) (holding that "credit cannot be awarded for time served on community control"). Despite this clear statutory directive, Cregan insists he is entitled to credit for the time he spent in a drug rehabilitation facility as a condition of community control. He argues, first, that section 948.06(3) applies only when the revocation of a defendant's community control results in supervised release, as opposed to imprisonment....

...sentencing, would exceed the maximum penalty allowable as provided by s. 775.082. No part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he or she shall be sentenced to serve. § 948.06(3), Fla. Stat. (2003). Cregan claims that the first sentence of section 948.06(3) modifies the last one....

...tion or community control, a court imposes a further term of probation or community control. This argument overlooks the plain language of the last sentence. It also ignores the history of the statute. For more than fifty years, the last sentence of section 948.06(3) stood alone....

...State, 678 So.2d 427 (Fla. 4th DCA 1996), we held that the provision prohibited a court only from applying time spent on probation or community control to a subsequent term of incarceration. See Young, 697 So.2d at 77 n. 5 ("The term `sentence' in section 948.06 refers to incarceration....

...intend that a releasee who violates the terms and conditions of release receive credit for time spent under that failed supervision." Gay, 700 So.2d at 1222 n. 5. Our holding in Young therefore remains valid. Cregan's other argument against applying section 948.06(3) is that time spent in a drug rehabilitation program as a condition of community control is significantly more restrictive than time spent purely on community control, and that an evidentiary hearing is necessary to determine whether his particular program was the functional equivalent of time served in a county jail under section 921.161(1). We disagree. Section 948.06(3) admits of no exceptions: "No part of the time that the defendant is. . . in community control shall be considered as any part of the time that he or she shall be sentenced to serve." § 948.06(3), Fla....

...Given that community control is restrictive by definition, we decline to conclude that treatment in a drug rehabilitation facility is so much more restrictive as to be tantamount to confinement in the county jail. We also decline to read the jail-time credit statute as overriding the plain language of section 948.06(3). The jail-time credit statute requires that a defendant be credited for time "spent in the county jail before sentence." Although we have read that language as extending to analogous settings, such a reading should not frustrate section 948.06(3), which specifically precludes jail-time credit for time spent in community control....

...rea always controls over a statute covering the same and other subjects in more general terms." Stoletz v. State, 875 So.2d 572, 575 (Fla.2004) (quoting McKendry v. State, 641 So.2d 45, 46 (Fla.1994)). Thus, we must respect the specific directive in section 948.06(3). III. CONCLUSION We hold today, as we did in Young, that a defendant who violates the conditions of community control cannot be given credit against a subsequent term of incarceration for the time spent in community control. See § 948.06(3), Fla....

...denied jail-time credit as a matter of law. It is so ordered. *392 PARIENTE, C.J., and WELLS, ANSTEAD, QUINCE, and BELL, JJ., concur. LEWIS, J., concurs in result only. NOTES [1] We are baffled by the parties' failure in their merits briefs to cite section 948.06(3), Fraser, or Young....

...Those authorities directly address whether jail-time credit may be granted for time spent in community control. After we ordered supplemental briefing, the State argued that those authorities control. Cregan attempted to distinguish Fraser and Young by arguing that they "impermissibly extend" the meaning of section 948.06(3), which essentially argues for receding from controlling precedent....

...We find no merit in the appellant's contention that he was not given a proper probation revocation hearing. At a probation revocation hearing, the court must advise the probationer of the charges, and then if admitted, the court may revoke the probation. § 948.06(1), Fla....

...of which are to be served in prison and not more than two years in community control. If the youthful offender violates the terms of his community control, the circuit court has jurisdiction to proceed pursuant to section 958.14, which incorporates section 948.06(1), to revoke the community control and pronounce sentence upon him....

...han thirty years ( See section 775.082(3)(b), Florida Statutes (1979)). However, the State takes the position that, upon a revocation of community control, the court may, under authority of section 958.14, Florida Statutes (1979), which incorporates section 948.06(1), impose whatever sentence it might originally have imposed without regard to the youthful offender act....

...If the answer to the foregoing question is in the positive, may the circuit court, upon revocation of a youthful offender's Community Control Program status, treat the defendant as though it had never placed him in community control and sentence him in accordance with section 948.06(1), Florida Statutes? DOWNEY, LETTS and GLICKSTEIN, JJ., concur.

...a probation violation and is not later permitted to order a period of incarceration to exceed the sentence because to do so would violate double jeopardy. See Poore v. State, 531 So.2d 161, 164-65 (Fla.1988), superseded by statute on other grounds, § 948.06(6), Fla....

...ich existed at the time he was placed on probation, because in placing him on probation the court necessarily had to find that he was not likely again to engage in a criminal course of conduct. See § 948.01(3), Fla. Stat. (1987). On the other hand, section 948.06(1), Florida Statutes (1987), provides that upon revoking a defendant's probation the court is authorized to impose any sentence that it might have originally imposed before placing a defendant on probation....

...The warrant was served on petitioner on June 7, 1961. On June 30, 1961 the court entered its order of revocation of probation. It then entered its judgment and sentence, said sentence being confinement in the state prison for a term of two years. The sentence was excessive. Under Sec. 948.06, F.S.A....

...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 pursuant to Section 948.06, F.S., F.S.A....

...We find this action to further support our conclusion that the legislature does not intend that a releasee who violates the terms and conditions of release receive credit for time spent under that failed supervision. See ch. 97-78, § 21, Laws of Fla. (amending § 948.06, Fla....

...If a defendant violates terms and conditions of supervision, the court can revoke the defendant's probation or community control. In such event, the court may "impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control." § 948.06(1), Fla....

...Sullivan, appellant and counsel, along with several witnesses, appeared before the court. After this inquiry the court instructed the appellant to return on April 15, 1965, at which time an order would be entered. The subject of this appeal requires us to consider the construction of Florida Statute 948.06(1), F.S.A., which provides as follows: "948.06 — Violation of probation; revocation; modification; continuance....

...robation." Appellant submits the following question for determination: Did the court err by failing to give the appellant probationer an opportunity to be fully heard before revoking probation under the above statute? Appellant apparently interprets § 948.06 (1) to mean the first appearance before the judge in a revocation hearing should be similar to an arraignment procedure, on a separate day, as in a full scale criminal trial....

...ect, as there was no authority or necessity to impose a second sentence. Instead, the court held that the defendant should have been recommitted to serve the remainder of the suspended sentence. In addition, in dictum in Poore, the court stated that section 948.06(1), Florida Statutes (1987), which allows a court upon revoking probation, to impose any sentence which it might have originally imposed, applied only to cases where a defendant was originally placed on straight probation without any incarceration....

...inuing the five years probation. The Jones court held that a trial judge is not required to impose a total sentence and then immediately withhold a portion for use in the event that probation is violated, since such a requirement would conflict with section 948.06, Florida Statutes, authorizing a trial judge to impose any sentence he might have originally imposed after revoking probation....

...[8] This court, in Johnson v. State, 482 So.2d 398 (Fla. 5th DCA 1985) specifically held that a defendant originally sentenced as a youthful offender may, upon violation of a term of probation or community control, be resentenced in accordance with section 948.06(1), Florida Statutes, without reference to the youthful offender provisions....

...a violation of probation for a period longer than six years or the statutory maximum, whichever is less, [9] the amendment does not require a court to reclassify a defendant as a youthful offender after a violation. See Crosby, supra . Accordingly, section 948.06 may still be applied when the court determines that the defendant should no longer be classified as a youthful offender, allowing the court to sentence a defendant after revocation to any term which could have been originally imposed without reference to the act....

...convicted person.'" State v. Gloster, 703 So.2d 1174, 1176 (Fla. 1st DCA 1997) (quoting Thomas v. State, 356 So.2d 846, 847 (Fla. 4th DCA 1978)). However, if probation is revoked, the defendant must be adjudicated guilty of the charged offense. See § 948.06(1), Fla....

...Instead, once the court revokes probation or community control, the court resentences the offender on the original charge, and may "impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control." § 948.06(1), Fla....

...ree and nine. As a result, the trial court revoked appellant's probation and imposed two years in prison for each offense to run concurrently. A trial court may revoke probation if a probationer violates his or her probation "in a material respect." § 948.06(3), Fla....

...period of probation; (4) a Villery sentence, consisting of period of probation preceded by a period of confinement imposed as a special condition; and (5) straight probation. If the defendant violates his probation in alternatives (3), (4) and (5), section 948.06(1) and Pearce permit the sentencing judge to impose any sentence he or she originally might have imposed, with credit for time served and subject to the guidelines recommendation....

...er section 92.525, Florida Statutes (2003), but not sworn to before a person authorized to administer oaths. In Jackson v. State, 881 So.2d 666 (Fla. 5th DCA 2004), we held that an affidavit to secure a warrant for violation of probation pursuant to section 948.06(1), Florida Statutes (2002), must be sworn to before a person authorized to administer oaths and that verification under section 92.525 is not appropriate....

...the filing of the affidavit. To explain our views, we begin with a discussion of the oath requirement of the affidavit under Florida and federal law. An Arrest Affidavit Must Be Sworn To Before A Person Authorized To Administer Oaths A. Florida Law Section 948.06(1), Florida Statutes *1018 (2003), [1] governs violation of probation proceedings and provides that "[a]ny committing magistrate may issue a warrant, upon the facts being made known to him or her by affidavit of one having knowledge of such facts ... [and] ... [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, the probationary period is tolled until the court enters a ruling on the violation." § 948.06(1), Fla. Stat. (2003) (emphasis added). Because section 901.02, Florida Statutes, specifically governs the issuance of arrest warrants, section 948.06(1) requires an affidavit to establish probable cause for the issuance of an arrest warrant for the probation violator....

...r oaths. § 92.525(4)(c), Fla. Stat. (2003); Mieles v. South Miami Hosp., 659 So.2d 1265 (Fla. 3d DCA 1995); State, Dep't of Highway *1019 Safety & Motor Vehicles v. Padilla, 629 So.2d 180 (Fla. 3d DCA 1993), review denied, 639 So.2d 980 (Fla.1994). Section 948.06(1), on the other hand, does not provide for verification; it specifically requires an affidavit....

...k, or deputy clerk of any court of record within this state, including federal courts, or before any United States commissioner or any notary public within this state. § 92.50(1), Fla. Stat. (2003). Hence, in order to secure an arrest warrant under section 948.06(1), the affidavit must be sworn to before a person authorized to administer oaths....

...Nevertheless, the good faith exception clearly applies and the trial judge should not have dismissed the warrant. While we agree with the decision in Jackson that section 92.525 should not apply to affidavits executed to secure an arrest warrant pursuant to section 948.06, the remedy of dismissal applied in Jackson is inappropriate in instances where the good faith exception applies....

...GRIFFIN, J., concurs and concurs specially, with opinion, in which SAWAYA and PALMER, JJ., concur. TORPY, J., concurs in result only, with opinion, in which PLEUS, C.J., ORFINGER and MONACO, JJ., concur. GRIFFIN, J., concurring and concurring specially. Everyone agrees that section 948.06(1), Florida Statutes, requires an "affidavit" to obtain an arrest warrant for a violation of probation....

...The issue as framed by Petitioner here, therefore, is whether the lower court has jurisdiction to proceed on the amended affidavit. The majority implicitly concludes that, because the amended affidavit was filed too late to invoke the statutory tolling provisions of section 948.06(1) (2005), Florida Statutes, the amended affidavit was of no effect. I agree with this conclusion. Section 948.04(2), Florida Statutes (2005), provides that a probationer is entitled to be released from probation upon expiration of his or her term. This period may be extended under the tolling provision of section 948.06(1), "upon the filing of an affidavit alleging a violation of probation......

...iginal affidavit and warrant were legally sufficient. To answer this question it is necessary to determine whether a verified document, in affidavit form, given under penalty of perjury, is a statutorily authorized equivalent of an "affidavit" under section 948.06(1)....

..., written confirmation of facts as true) of a "document," (which by definition includes "affidavits") is required by law or rule, it may be accomplished either by execution before a notary or by signing the statutorily specified declaration. Because section 948.06 requires an "affidavit," which is a "verified document," the alternative verification procedure authorized by section *1030 92.525(1)(b), is a permitted substitute for execution before a notary....

...ore a notary or, in some jurisdictions, without the need for a notary). [6] Here, the requisite declaration was included in the "affidavit;" therefore, the lack of notarization had no affect on its validity. Accord Goines (applying section 92.525 to section 948.06); see also Shearer (Rule 3.987 form of oath requiring notary satisfied by section 92.525 verification); State Dep't of Highway Safety & Motor Vehicles v....

...Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987); Grubbs v. State, 373 So.2d 905 (Fla.1979). From a constitutional perspective, a warrant was not required to arrest petitioner. Grubbs, 373 So.2d at 908 (acknowledging constitutional propriety of section 948.06, which authorizes warrantless arrest of probationers for probation violations)....

...ome into play. Here, however, Petitioner does not seek to exclude evidence under the exclusionary rule; therefore, the exception has no place. The issue in this case is simply whether the state properly invoked the tolling provision contained within section 948.06(1), Florida Statutes (2005), by filing an "affidavit." See Stambaugh, 891 So.2d at 1139 (for tolling provisions to apply, state must both file an affidavit and obtain a warrant)....

...ce but to conclude that, because Petitioner's probation expired before an amended affidavit was filed, the lower court lost jurisdiction to proceed. Id. PLEUS, C.J., ORFINGER and MONACO, JJ., concur. NOTES [1] Citation is made to the 2003 version of section 948.06, Florida Statutes, because at the time the warrant was signed in early 2004, the changes to section 948.06 appearing in the 2004 bound volume of Florida Statutes had not yet taken effect....

...upervision or public service may not be longer than the sentence that could have been imposed if the offender had been committed for the offense or a period not to exceed two years, whichever is less. [Emphasis added.] However, the state argues that section 948.06(1), Florida Statutes (1991) authorizes the sentence imposed. Section 948.06(1) provides that if a violation of probation or community control is admitted or proven, the court may revoke, modify, or continue the probation or community control or place the probationer on community control....

...wo years in any one sentencing, it is not prohibited from imposing a new two-year term of community control upon revoking a defendant's previous term of community control. *157 We recognized in Ramey v. State, 546 So.2d 1156 (Fla. 5th DCA 1989) that section 948.06(1) authorizes a court upon revocation of probation to impose any sentence it might have originally imposed....

...State, 531 So.2d 161 (Fla. 1988), the Florida Supreme Court discussed the five possible sentencing alternatives and held that when a defendant was sentenced to a probationary split sentence, a Villery sentence or straight probation and violated probation, section 948.06 permitted a sentencing judge to impose any sentence that might have originally been imposed, with credit for time served and subject to the guidelines. However, none of these cases interpreting section 948.06 involve terms of community control in excess of 2 years, but instead involve revocation of probation and resentencing to incarceration....

...ieu of being sentenced. See State v. Kendrick, 596 So.2d 1153, 1154 (Fla. 5th DCA 1992). See also §§ 948.01(1), (3), and (4), Fla. Stat. (1991). In the other situation the defendant, following revocation, is finally sentenced to incarceration, and section 948.06(1) then permits the court to impose "any sentence which it might have originally imposed." We have considered the state's argument concerning the effect of section 948.06(2), Florida Statutes (1991) on this issue. Section 948.06(2), provides that "No part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve." Generally, a defendant is not entitled to credit for ti...

...However, as we have pointed out, this general rule has now been modified by Fraser v. State , which held that a defendant is entitled to credit for time served on community control when the defendant's sentence of community control has been revoked as illegal and not due to any fault of the defendant. Further, section 948.06(2) and the applicable case law governing credit for time served deal with the question of whether a defendant is entitled to credit for time served while on community control on any term of incarceration subsequently imposed and not wi...

...It is analogous to probation, in that a defendant is not sentenced to probation or community control, but placed on probation or community control in lieu of being sentenced. See State v. Kendrick, supra, at 1154 and §§ 948.01(1), (3) and (4), Fla. Stat. (1991). Thus, we conclude that section 948.06(2) and the case law governing credit for time served are inapplicable....

...astillo’s house. In their affidavit, they swore that Castillo unlawfully possessed firearms “in violation of the laws of the State of Florida, to-wit: The laws prohibiting the possession of firearms in violation of terms of probation contrary to section 948.06.” They also stated the details of Kurtz’s search and that the pretrial intervention agreement prohibited Castillo from having a firearm....

...4th DCA 2002); see also Edison v. State, 848 So.2d 498 (Fla. 2d DCA 2003); May v. State, 713 So.2d 1087 (Fla. 2d DCA 1998). But see Render v. State, 742 So.2d 503 (Fla. 3d DCA 1999). We acknowledge that revocation of probation requires adjudication of guilt. See § 948.06(1), Fla....

...State, 630 So.2d 1090 (Fla.1994). The holding in Willis would not control á plea of nolo contendere followed with an adjudication of guilt, a procedure also permitted the trial court under Florida law. See Parker v. State, 500 So.2d 721 (Fla.2d D.C.A.1987); Fla. Stat. § 948.06 (1)....

...s nolo contendere plea in the two eases argued. The report does show that in both eases, however, he violated probation, probation was revoked, and he was sentenced to two years imprisonment in one case, and fifteen months imprisonment in the other. Section 948.06, Florida Statutes, directs that upon the revocation of probation, the state court must adjudge the defendant guilty of the underlying offense....

...[1] There was no discussion of credit for time served during the plea colloquy. However, the sentencing order grants 504 days credit for time served. [2] On his return to the Department of Corrections, the Department caused the forfeiture of the gain time that the defendant had earned during his prior incarceration. See § 948.06(7), Fla....

...Section 947.146(9) provided that if there were reasonable grounds to believe a releasee had violated the terms and conditions of release, the releasee would be subject to section 947.141; both section 947.146(9) and section 947.141 provided for gain time forfeiture where the release was revoked. Sections 944.28(1) and 948.06(6) were also amended to provide for the forfeiture of gain time upon revocation of Control Release....

...(1989); see also Fla.Admin.Code R. 23-22.013. By the time inmates were offered this conditional benefit, the gain time statutes had been amended to make clear that a revocation of Control Release would result in a forfeiture of basic and incentive gain time. §§ 944.28(1), 948.06(6), 947.146(9), 947.141, Fla.Stat....

...NOTES [1] Although we find that Bowles waived his ex post facto argument, we note that at the time of Bowles' offenses in November 1989, all the post-prison supervision programs in effect provided for forfeiture of incentive and basic gain time upon revocation. See §§ 944.28(1), 948.06(6), 944.598(5), Fla....

...ch escape or his release under such clemency, conditional release, probation, community control, provisional release, control release, or parole. (Emphasis added). See § 944.28(1)(note 1), Fla. Stat. (1989). As amended by chapter 89-526, section 8, section 948.06(6) provided, in pertinent part: Any provision of law to the contrary notwithstanding, whenever probation, community control, or control release, including the probationary, community control portion of a split sentence, is violated and...

...ation, community control, or control release. This subsection does not deprive the prisoner of his right to gain-time or commutation of time for good conduct, as provided by law, from the date on which he is returned to prison. (Emphasis added). See § 948.06(6)(note 2), Fla....

...t was committed on May 19, 1978, after Jess's term of probation had already expired on December 12, 1977. Curry v. State, 362 So.2d 36 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 471 (Fla. 1979); Demchak v. State, 351 So.2d 1053 (Fla. 4th DCA 1977); § 948.06(1), Fla....

...conditions of probation. See Williams v. State, 578 So.2d 846 (Fla. 4th DCA 1991) (finding that extension of probationary period at subsequent restitution hearing when sentence already imposed at earlier sentencing hearing violated double jeopardy). Section 948.06, Florida Statutes (1987), "provides the sole means by which the court may place additional terms on a previously entered order of probation or community control." Clark v....

...e date, for that particular sentence. See § 944.275(3)(a), Fla. Stat. (1999). If the trial court finds that the inmate violated his or her probation or community control and that it should be revoked, the inmate is returned to prison. See generally § 948.06, Fla....

...After Poore was issued, the legislature provided for a number of additional types of split sentences, including the probationary split sentence. In this type of sentence, if the defendant violates probation, the trial court may impose any sentence it might have originally imposed. See § 948.06(1), Fla. Stat. (1999). [2] Control Release was added effective September 1, 1990. See ch. 89-526, § 6, at 2662; § 52, at 2690, Laws of Fla. [3] Similar statutory authority is provided for in section 948.06(7), Florida Statutes (1999).

...ws relating to credit for unforfeited gain time and by the inadequacy of the disparate sentencing forms used by the sentencing courts throughout the state. In 1989, the legislature enacted two statutes bearing on this subject which remain in effect. Section 948.06(6), Florida Statutes (1989), provided that whenever probation was revoked, an offender "may be deemed to have forfeited" all gain time earned up to the date of his release on probation....

...dit for time served on case/count _____________________________________. (Offenses committed between October 1, 1989, and December 31, 1993) _______ The Court deems the unforfeited gain time previously awarded on the above case/count forfeited under section 948.06(6)....

...In 1989, the legislature eliminated the credit for gain time. The confusion which spawned the controversy in this case was because the legislature in 1989 enacted two laws on the subject in the same session. Chapter 89-531, Laws of Florida, added subsection (6) to section 948.06, Florida Statutes (1987), to read as follows: (6) Notwithstanding any provision of law to the contrary, whenever probation or community control, including the probationary of community control portion of a split sentence, is violated a...

...This subsection does not deprive the prisoner of his right to gain-time or commutation of time for good conduct, as provided by law, from the date on which he is returned to prison. This amendment became effective on October 1, 1989. Chapter 89-526, Laws of Florida, also added a subsection (6) to section 948.06 which contained almost identical wording except that in addition to violations of probation and community control it also referred to the violation of control release....

...time. In another section of chapter 89-531 the legislature did amend section 944.28, Florida Statutes (1987), to authorize the department to declare a forfeiture of probation or community control upon probation revocation. However, the amendment to section 948.06 contained in both chapters 89-526 and 89-531 clearly authorizes the trial court to forfeit gain time....

...NOTES [1] Control release is a mechanism whereby prisoners are released under supervision to control prison population. Because control release was also established in chapter 89-526 and did not become effective until September 1, 1990, it made sense that the amendment to section 948.06(6) pertaining to control release also be made effective on September 1, 1990. [2] In Thomas v. State , the court held that State v. Green controlled its decision because the legislature's enactment of section 948.06(6) did not become effective until September 1, 1990....

...5th DCA 1993), the court made similar statements by referring to chapter 89-526, but there, too, it made no difference because in each instance the original crimes occurred before October 1, 1989. Even this Court made the observation that as of September 1, 1990, the legislature had amended sections 944.28 and 948.06 to add revocation of probation to the list of circumstances suggesting forfeiture of gain time....

...Chapter 958 of the Florida Statutes governs youthful offenders. Specifically, section 958.14 discusses a youthful offender's violation of probation. A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06....

...antive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated. § 958.14, Fla. Stat. (2010). Section 948.06 states, in regards to violations of probation, that "the court may revoke, modify, or continue the probation or community control or place the probationer into community control." § 948.06(2)(e), Fla....

...'s counsel argued that the State failed to prove that he had the ability to pay these costs. Defense counsel also argued that since Shepard was in custody from June to October 2004, his violation was not substantial or willful. The trial court cited section 948.06(5), Florida Statutes, for the rule that in any hearing in which there is an allegation of failure to pay the costs of supervision, it is incumbent upon the probationer to prove by clear and convincing evidence he does not have the resources....

...See Blackshear v. State, 771 So. 2d 1199, 1200 (Fla. 4th DCA 2000). This case demonstrates the tension between the State's burden to show that the probationer willfully, substantially, and deliberately violated a condition of his probation, and the requirement of section 948.06(5), Florida Statutes, that a probationer asserting inability to pay must prove such inability by clear and convincing evidence....

...bationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so. § 948.06(5), Fla....

...f the trial judge revoking appellant's probation should be reversed. Appellant pleaded guilty to violations of conditions (a) and (b) of his probation. Such violations are sufficient standing alone to justify revocation of probation under Fla. Stat. § 948.06(1), 1967, F.S.A., which reads in part as follows: "The court, upon the probationer being brought before it, shall advise him of such charge of violation and if such charge is admitted to be true may forthwith revoke, modify or continue prob...

...arrant based upon an affidavit alleging a VOP. See Howard v. State, 883 So.2d 879, 880 (Fla. 4th DCA 2004). [1] "The filing of the affidavit and issuance of the warrant toll the probationary period `until the court enters a ruling on the violation.' § 948.06(1), Fla. Stat. (2002)." Id.; see also State v. Boyd, 717 So.2d 524, 526 (Fla.1998). For the February, 2003 VOP violation, an affidavit alleging a VOP violation was filed and an arrest warrant issued, thereby tolling the probationary period under section 948.06(1)....

...However, no warrant issued for the January, 2004 violations. Central to this case is the legal effect of the state's withdrawal or dismissal of the February, 2003 VOP charge for battery on the continued prosecution of the January, 2004 violations. Section 948.06(2)(g), Florida Statutes (2004), provides that if the court dismisses a VOP affidavit, the offender's probation "shall continue as previously imposed, and the offender shall receive credit for all tolled time against his or her term of...

...ion. If a condition of probation is found to have been violated, the court may modify or continue the probation or may revoke the probation and impose any sentence which it might originally have imposed before placing the defendant on probation. See § 948.06, Fla....

...erefore be challenged for the first time on direct appeal.’ ” State v. Calvert, 15 So.3d 946, 949 (Fla. 4th DCA 2009) (citations omitted). The trial court erred by sentencing appellee to a sentence below the minimum mandatory in contravention of section 948.06(2)(b), Florida Statutes....

...Upon violation of a youthful offender’s supervision, the statute in effect at the time Blacker’s community control was revoked provided as follows: A violation or alleged violation of probation or the terms of a community con *788 trol program shall subject the youthful offender to the provisions of s. 948.06(1)....

...tive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated. § 958.14, Fla. Stat. (2003). 3 Section 948.06(1), Florida Statutes (2003), sets out the manner in which a violation of probation or community control must be charged and proven, and among many things, contains language that allows the court, if it revokes supervision, to “impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control.” Nothing in section 948.06 or 958.14 indicates that youthful offender status is revoked upon revocation of probation or community control....

...If the answer to the foregoing question is in the positive, may the circuit court, upon revocation of a youthful offender's community control program status, treat the defendant as though it had never placed him in community control and sentence him in accordance with section 948.06(1), Florida Statutes? We have jurisdiction, article V, section 3(b)(4), Florida Constitution, and we answer both questions in the affirmative....

...[1] At the probation revocation hearing in February 1984, petitioner argued that the Parole and Probation Commission had exclusive jurisdiction over him, pursuant to section 958.10. [2] The circuit court rejected petitioner's argument and found that it had jurisdiction pursuant to sections 958.14 and 948.06(1)....

...proceeding or application for revocation of probation for a violation which occurred during the term of probation unless in the meantime, the processes of the court have been set in motion for revocation or modification of the probation pursuant to Section 948.06, Florida Statutes (1975)....

...icipating in the April 12 hearing on the amended affidavit because, upon the termination of the March 29 hearing in favor of Carpenter, the trial court became divested of jurisdiction and was powerless to entertain the amended April 7 affidavit. See Section 948.06, Florida Statutes (1977) and Coleman v....

...State, 566 So.2d 299, 301 (Fla. 1st DCA 1990)). However, if the reasons for departure existed when the judge initially sentenced the defendant, then the trial court may depart from the presumptive guidelines range and impose a sentence within the statutory limit. Id.; § 948.06(1), Fla. Stat. (1989). Subsection 948.06(1), Florida Statutes (1989), provides that if probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previously been adjudged g...

...revoking or modifying probation or community control." While there is no corresponding provision for state appeals, Rule 9.140(c)(1)(K) allows the state to appeal orders "imposing a sentence outside the range permitted by the sentencing guidelines." Section 948.06(1), Florida Statutes (2002), states, in pertinent part: The court, upon the probationer or offender being brought before it, shall advise him or her of such charge of violation and, if such charge is admitted to be true, may forthwith...

...ence of the accused at trial, or assure the integrity of the judicial process. Even if Mr. Woods had been charged with a violation of probation rather than or in addition to a new offense, detention without bail or other conditions is not automatic. Section 948.06(2)(c), Florida Statutes (2006), and rule 3.790(b) provide courts with the discretionary power to grant or deny bail to individuals who are charged with violating their probation....

...Thornton, 370 So.2d 856 (Fla. 4th DCA 1979). In Glosson v. Solomon, 490 So.2d 94, 95 (Fla. 3d DCA 1986), the Third District specifically held that a trial judge's announced policy of never setting bail on a probation violation charge is in derogation of section 948.06 and therefore error....

...0 control, provisional release, control release, or parole. (Emphasis supplied.) [5] Section 944.28(1) is one of two provisions that authorized forfeiture of gain time upon revocation of probation at the time of the offenses in this case. The other, section 948.06(6), Florida Statutes (1993), provided: Any provision of law to the contrary notwithstanding, whenever probation, community control, or control release, including the probationary [or] community control portion of a split sentence, is v...

...tion of probation for a crime that was originally included in the same guidelines scoresheet as the offense on which the gain time was accrued. Section 944.28(1) does not specify whether the forfeiture penalty applies to split sentences. Its analog, section 948.06(6) (now section 948.06(7), Florida Statutes (2003)), specifies that the forfeiture penalty applies to the revocation of probation or community control imposed as part of a split sentence....

...modified by court order to eliminate the term of incarceration. (b) If the offender does not meet the terms and conditions of probation or community control, the court may revoke, modify, or continue the probation or community control as provided in s. 948.06....

...That is, that the defendant is reincarcerated and must actually serve the previously suspended term of years in prison.... In [the probationary split] sentence, if the defendant violates probation, the trial court may impose any sentence it might have originally imposed. 760 So.2d at 889 n. 1; see also § 948.06(1)....

...single offense, both the trial court and the DOC have the authority to forfeit gain time. See id. at 892. We had previously explained, in Forbes v. Singletary, 684 So.2d 173, 174 (Fla.1996), that the trial court's authority derives from language in section 948.06(6) providing that upon revocation of the probationary or community control portion of a split sentence, the offender may be deemed to have forfeited all gain time earned up to the date of his release....

...ctually served and for gain time must be granted against a sentence imposed upon revocation of the probationary portion of a split sentence. See id. at 927. The present version is essentially unchanged from the 1993 version applicable to Gibson. [6] Section 948.06(6) was enacted in chapter 89-531, section 13, at 2720, Laws of Florida. [7] Effective May 30, 1997, forfeiture of gain time is mandatory under this provision, which was redesignated section 948.06(7)....

...to revoke or modify probation.’ ” Shenfeld v. State, 14 So.3d 1021, 1023 (Fla. 4th DCA 2009) (alteration in original) (quoting Clark v. State, 402 So.2d 43, 44 (Fla. 4th DCA 1981)). The State argues that, in this case, the tolling provisions of section 948.06(l)(f), Florida Statutes (2012), were effectuated and, therefore, the exception described in Shenfeld is applicable to this case....

...“Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s. 901.02, a warrantless arrest under this section, or a notice to appear under this section, the probationary period is tolled until the court enters a ruling on the violation.” § 948.06(l)(f), Fla....

...avit of violation and the issuance of an arrest warrant are required to toll the probationary period.” Sepulveda v. State, 909 So.2d 568, 570 (Fla. 2d DCA 2005). The statute is very specific on the warrant required: “a warrant under s.901.02.” § 948.06(l)(f) (emphasis added)....

...The warrants clearly list Appellant’s previous crimes only in a descriptive manner, and order that the Sheriffs of Florida arrest Appellant only for the alleged failure-to-pay violations. Those violations, as already noted, were not “crimes.” Section 948.06(l)(f) is clear that a warrant under section 901.02 is required in order for the probationary period to be tolled (except when one of the other two alternatives are applicable, as is not the case here)....

...iolation points are assessed for the violation, and for each successive community sanction violation involving a new felony conviction. 2. If the community sanction violation is committed by a violent felony offender of special concern as defined in s. 948.06: a....

...r community control where the violation includes a new felony conviction. § 921.0024(1)(b), Fla. Stat. (2008) (emphasis added). A "violent felony offender of special concern" is defined as follows: (b) For purposes of this section and ss. 903.0351, 948.064, and 921.0024, the term "violent felony offender of special concern" means a person who is on: 1....

...predator under s. 775.21 and has committed a qualifying offense on or after the effective date of this act. (c) For purposes of this section, the term "qualifying offense" means any of the following: . . . . 14. Aggravated assault under s. 784.021. § 948.06(8)(b), (c), Fla....

...Further, Cherington did not qualify as a "violent felony offender of special concern." While Cherington's underlying conviction was for aggravated assault, which is a qualifying offense under the statute, that underlying offense occurred in 2005, before the effective date of the amended section 948.06(8) on October 1, 2007....

...a sentence pursuant to an order of probation is deferred, the court has power to impose sentence for violation of the probation after the probation period has expired, even though the violation took place during said period. The governing statute is Section 948.06, Florida Statutes, F.S.A., as follows: "Whenever within the period of probation there is reasonable ground to believe that a probationer has violated his probation in a material respect, any parole or probation officer may arrest such...

...In other words, the person is not actually sentenced for a violation of probation. Rather, the probation is revoked either in whole or in part and the discretionary one-cell bump-up can be added on based upon the earlier scoresheet. This procedure is the only one authorized by Florida statutes. See § 948.06, Fla....

...The amended version of § 958.14, Fla. Stat., provides: 958.14 Violation of probation or community control program. — A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06(1)....

...ncarcerated. The prior version of § 958.14, Fla. Stat. provided: 958.14 Violation of community control program. — A violation or alleged violation of the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06(1). Section 948.06, Fla....

...To assume that the legislature did not intend a change in the law would be to assume it intended to enact a nullity. The language of § 958.14, as amended, relating specifically to resentencing of youthful offenders after violation of probation or community control, should prevail over the preexisting general provisions of § 948.06(1) relating to any violation of probation or community control by anyone....

...The events which ensued to prevent his departure were not within his control. Where a defendant makes reasonable efforts to comply with the conditions of probation, his failure to so comply may not be wilful. Id. at 41. REVERSED AND REMANDED. SCHEB, A.C.J., and THREADGILL, J., concur. NOTES [1] Section 948.06, Florida Statutes (1984) does not envision a no contest plea to a violation of probation or community control....

...ion. If a condition of probation is found to have been violated, the court may modify or continue the probation or may revoke the probation and impose any sentence which it might originally have imposed before placing the defendant on probation. See § 948.06, Fla....

...e them as ordered by the court. Based upon these findings, probation was revoked and appellant was sentenced to serve one year in county jail, with credit for time served. Provisions dealing with the monetary conditions of probation are set forth in section 948.06(4), Florida Statutes (1991), which provides in part: In any hearing in which the failure of a probationer......

...While it is undisputed that during the first five months of his probation, appellant failed to pay any of the monetary conditions of his probation, the record demonstrates that he made bona fide efforts to acquire the resources to do so. Therefore, pursuant to section 948.06(4), it was incumbent upon the trial court to consider a sanction other than imprisonment, with respect to appellant's failure to comply with the monetary conditions of his probation....

...See also: Fogarty v. State, 465 So.2d 625 (Fla. 2d DCA 1985); Gordon v. State, 448 So.2d 76 (Fla. 4th DCA 1984); Pope v. State, 444 So.2d 1161 (Fla. 3rd DCA 1984); Murphy v. State, 442 So.2d 1047 (Fla. 4th DCA 1983); Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979). Section 948.06(4), Florida Statute (Supp....

...By the same token, Bass made no affirmative showing of an inability to make payments during the time he was employed at the Waffle House. This period of employment, from June 8, 1984, until July 23, 1984, coincided with and continued after the June 24, 1984, effective date of Section 948.06(4), which section requires a probationer to demonstrate that he has an inability to make the required payments....

...and imposed the same sentence solely on this ground. Therefore, we remand this cause with directions to the trial court to determine whether Bass has met his burden of an affirmative showing of an inability to make the required payments pursuant to Section 948.06(4), Florida Statutes (Supp....

...If the trial court determines that Bass has shown an inability to pay, there should then be a determination as to whether his probation should be revoked based upon his failure to work at a lawful occupation. Reversed and remanded with directions. ERVIN and SHIVERS, JJ., concur. NOTES [1] § 948.06(4), Fla....

Thus the motion was timely filed. Analysis Section 948.06(1), Florida Statutes (2003), provides for retention

condition imposed contrary to the dictates of Section 948.06, Florida Statutes (1987), in finding a violation

community control without notice and hearing. Section 948.06, Florida Statutes (1987), provides the sole

probation. (c) Contains the procedural aspects of section 948.06(1), Florida Statutes. 1972 Amendment. (a) of

State, 290 So.2d 116 (Fla. 4th DCA 1974); see also § 948.06, Fla. Stat. (1981). Yet, where the revocation

requirements for such a hearing are set forth in § 948.06, Fla. Stat., F.S.A. An examination of the statute

of Fla. See also ch. 89-531, § 13 (codified at § 948.06(6), Fla. Stat. (1989)). As a result, a defendant

sanction was unlawful. It based its reasoning on section 948.06(1), Florida Statutes (1989), also the controlling

State, 420 So.2d 380 (Fla. 3d DCA 1982). 4. That F.S. 948.06 authorizes modification of terms and conditions

offender on probation or into community control. See § 948.06(1), Fla. Sta. (1987). Accordingly, the trial court

whether to revoke, modify, or continue it. See § 948.06(2)(a, e), Fla. Stat. (2011); Nadzo v. State, 24

prior to ... his release." (Emphasis added.)[4] Section 948.06(6) states that "whenever probation ... is revoked

3, Laws of Florida. It is codified in *1204 section 948.06(4), Florida Statutes (1985), and provides:

placed on probation. Fla. R.Crim. P. 3.670. Section 948.06(1), Florida Statutes (1995), addresses the

exercise its discretion to change the sentence. § 948.06, Fla. Stat. REVERSING order and REMANDING for

youthful offender is subject to the provisions of section 948.06(1) when he or she violates probation or community

See Young v. State, 697 So.2d 75 (Fla.1997); § 948.06(3), Fla. Stat. (1997). Second Violation of Community

defendant to prove such financial inability. Section 948.06(4), Florida Statutes; Bass v. State, 473 So

appellee's probation for good cause pursuant to F.S. Section 948.06, F.S.A., provided the minimum due process safeguards

WALLACE, JJ., Concur. NOTES [1] The State cites section 948.06(5), Florida Statutes (2004), McQuitter v. State

State met that burden and, therefore, affirm. Section 948.06(5) of the Florida Statutes provides as follows:

Neither party addresses the applicability of section 948.06(6) which provides that whenever probation is

This concept and language was lifted from section 948.06(1) which originally related to the court's

district court of appeal affirmed and referred to section 948.06(1), Florida Statutes (1975), which provides

First, whether the retroactive application of section 948.06(1)(d) Florida Statutes (2007) violates the

See Young v. State, 697 So.2d 75 (Fla.1997) (section 948.06(2), Florida Statutes, prohibits court from

probation violation charge[3] is in derogation of Section 948.06(1), Florida Statutes (1985), which permits

The court granted the motion and, pursuant to section 948.06(1)(g), Florida Statutes (2005), continued Scott

awarded on the above case/count forfeited under section 948.06(67). ____ The Court allows unforfeited gain

revocation of his probation is set forth in Fla.Stat. § 948.06(1): *154 The court, upon the probationer being

Justice Kogan's dissenting opinion reasoned that section 948.06, Florida Statutes (1987), requires that when

"until the court enters a ruling on the violation." § 948.06(1), Fla. Stat. (2002). A violation of probation

666 (Fla. 5th DCA 2004), this Court held that section 948.06(1)(b), Florida Statutes, requires that an affidavit

defendant posed a danger to the community. See § 948.06(8)(e)l, Fla. Stat. (2011) (“If the court, after

has violated a condition of his probation, section 948.06(1), Florida Statutes, provides that the court

that, upon revocation of community control, section 948.06, Florida Statutes, authorized the entry of

impose a sentence within the statutory limit. Id.; § 948.06(1), Fla. Stat. (1989). Subsection 948.06(1), Florida

was free to resentence the defendants under section 948.06(1) to any sentence that the court might have

a result of the violation. Id. In addition, section 948.06(2), Florida Statutes (1993) provides that "[n]o

affidavit and arrest warrant requirements of section 948.06(1), Florida Statutes (2003), to toll the probationary

community control." Cregan, 908 So.2d at 391. See § 948.06(3), Fla. Stat. (2003) (prohibiting the crediting

State, 35 So.3d 864, 869 (Fla.2010); see also § 948.06(2)(b), Fla. Stat. (“If probation or community

offender on probation or into community control. See § 948.06(1), Fla. Stat. (1987). Accordingly, the trial

this case on the body of law emanating from Section 948.06, Florida Statutes (1975), which provides in

until the court enters a ruling on the violation.” § 948.06(1)(f), Fla. Stat. In a situation where there is

probation or community control pursuant to section 948.06(1), Florida Statutes. However, in 1985 the

sentence on a subsequent violation of probation." Section 948.06(1), Florida Statutes (1997), provides that

options available to the trial court under section 948.06, Florida Statutes (1985). While Florida Rule

probation be revoked only for material violations. § 948.06(1), Fla. Stat. (1977). We see no need to require

adjudicated guilty of the charged offense. See § 948.06(1), Fla. Stat. (2001). Moreover, Florida courts

convicted occurred prior to the effective date of section 948.06(6), Florida Statutes, he is entitled to credit

arrest warrant for violation of probation. See section 948.06, Fla. Stat.; cf. McNeill v. State, 287 So.2d

CONTROL AND SENTENCE HIM IN ACCORDANCE WITH SECTION 948.06(1), FLORIDA STATUTES? SMITH, ZEHMER and BARFIELD

or modification of the probation pursuant to Section 948.06, F.S." At the time Ard was written, "the processes

L.Ed.2d 274 (1969), Judge Grimes explained: Section 948.06, Florida Statutes, F.S.A., states that at a

to pay restitution or the cost of supervision. § 948.06(4), Fla. Stat. (1991). The statutory language

either court costs or the "cost of supervision." § 948.06(5), Fla. Stat. (2001). Instead, the learned trial

jail as a condition of his probation. Fla. Stat. § 948.06(2) provides: "No part of the time that the defendant

provision was deleted by the 1974 legislature. Section 948.06, Florida Statutes (1975), is the only authority

early release from state prison, pursuant to section 948.06(6), Florida Statutes (Supp. 1990). However

violation. This requirement is set forth in section 948.06(1), Florida Statutes (2002), which states:

786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Section 948.06, Florida Statutes (2001), implements these

violating the proscription against double jeopardy. § 948.06(1), Fla. Stat (2002); Lippman v. State, 633 So

a guilty or nolo contendere plea; however, section 948.06(2), Florida Statutes (2006), requires that

before placing the probationer on probation." § 948.06(1), Fla. Stat. (1997) (emphasis added). The 1998

the denial of the motion to withdraw pleas. See § 948.06(1), Fla. Stat. (1987); Williams v. State, 629

[2] For cases prior to the effective date of section 948.06(6), Florida Statutes (1989), there appear to

post-revocation sentence of incarceration. See § 948.06(3), Fla. Stat. (2001); Young v. State, 697 So

earned up to the date of his release on probation. § 948.06(6), Fla. Stat. (1989); Ch. 89-531, §§ 13 and 20

custody was lawful because it was authorized by section 948.06(1), Florida Statutes (1999), and Florida Rule

before placing the defendant on probation. See § 948.06(1) Fla. Stat. (1983). Here, the trial court was

imposed" before placing Dupree on community control. § 948.06(1), Fla. Stat. (1991). Instead of appealing those

in motion" a revocation of probation). See also § 948.06(1)(d), Fla. Stat. (2004)("Upon filing of an affidavit

youthful offender to the general provisions of section 948.06(1) beyond the normal six-year cap for such

credited against any prison sentence imposed, § 948.06, Fla. Stat. (1975); State v. Holmes, supra, or

probation in 2000. Effective July 1, 2001, section 948.06(1), Florida Statutes, was amended to provide

Brill v. State, 159 Fla. 682, 32 So.2d 607. Section 948.06(1), F.S.A., provides: "Whenever within the

Phillips v. State, Fla.App. 1964, 165 So.2d 246; § 948.06, Fla. Stat., F.S.A.], and the mere fact that subsequent

state's position also gains some support from section 948.06(1), Florida Statutes (1983), which provides

evidence upon which the revocation was predicated. Section 948.06, Florida Statutes Annotated, provides as follows:

While we agree with the trial court that under Section 948.06, Florida Statutes *432 (1977), a defendant

opinion, this standard is not superseded by Section 948.06, Florida Statutes, which, upon breach of probation

supreme court found support in its decision from section 948.06, Florida Statutes (1987), which provides the

involving the revocation of probation. We disagree. Section 948.06, Florida Statutes, F.S.A., states that at a

with section 944.28(1); it is consistent with section 948.06(6); it is consistent with the statewide sentencing

this case has been eliminated by revisions to section 948.06(6). The current statutes provide that gain