RAYMOND ASHLEY OSTEEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Raymond Ashley Osteen's probation revocation was reversed because the trial court improperly allowed the State to substantially amend the affidavit of violation of probation during the revocation hearing by dropping one charge and adding five new charges, violating due process protections.
The probation revocation must be reversed and remanded because the amendment was substantive rather than technical and prejudiced the appellant's rights. While the State can amend charging documents during a hearing if there is no prejudice to the defendant's substantial rights, amendments that replace the entire substance of alleged violations violate due process protections.
[1] A probation revocation based upon a violation not alleged in the charging document violates due process.
[2] A trial court cannot revoke probation for conduct not charged in the affidavit of violation.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A trial court is not permitted to revoke probation on conduct not charged in the affidavit.”
Establishes the fundamental due process principle that probation revocation requires charges that were properly alleged
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Join FLexlaw to unlock all legal intelligenceOsteen was placed on community control/probation in September 2011 in three cases. In May 2013, an affidavit of violation of probation was filed charg…
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The Appellant, Raymond Ashley Osteen, was placed on community control/probation in September 2011 in three underlying cases. His probation was subsequently revoked in November 2013. Following a timely appeal, the Appellant’s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and In re Anders Briefs, 581 So.2d 149 (Fla.1991). After reviewing briefs submitted by the State and the Appellant’s counsel following issuance of a Causey1 order, we find that the probation revocation and sentence must be reversed and remanded.
*679In May 2013, an affidavit of violation of probation (VOP) was filed, which included the new law violation of soliciting a prostitute. In November 2013, the trial court held a hearing on the VOP. At the hearing, the State sought to orally amend the affidavit of VOP to drop the prostitution charge and substitute five new law violations including: (1) burglary of an unoccupied dwelling, (2) possession of a controlled substance, (3) possession of burglary tools, (4) possession of drug paraphernalia, and (5) petit theft. The trial court decided to hear testimony before orally amending the affidavit of VOP. After hearing testimony, the trial court seemingly accepted the amendment and found there was a preponderance of the evidence to show that the Appellant committed the five new law violations and revoked the Appellant’s probation.
It is well settled that the revocation of probation based upon a violation not alleged in the charging document is a deprivation of the right to due process of law. See Perkins v. State, 842 So.2d 275, 276 (Fla. 1st DCA 2003) (“A trial court is not permitted to revoke probation on conduct not charged in the affidavit.”); N.L. v. State, 825 So.2d 509, 510 (Fla. 1st DCA 2002); Parminter v. State, 762 So.2d 966, 967 (Fla. 2d DCA 2000). Here, the State sought to prevent a due process violation by orally amending the affidavit of VOP during the revocation hearing. However, the State can only amend its charging document during trial or hearing if there is no showing of prejudice to the substantial rights of the defendant. Rosser v. State, 658 So.2d 175, 176 (Fla. 3d DCA 1995). Technical amendments that do not affect the substantive allegations in the affidavit of probation violation are generally permitted. Id. (finding there was no error when the trial court permitted the State to amend the affidavit to reflect the correct date that appellant was placed on probation); see also State v. Garcia, 692 So.2d 984, 985 (Fla. 3d DCA 1997) (finding no prejudice where the State sought to amend the information to reflect the correct date of the charge).
Here, the amendment affected the substantive allegations in the affidavit of VOP. The State dropped the new law violation of prostitution and substituted new law violations for burglary, possession of burglary tools, possession of drug paraphernalia, petit theft, and possession of a controlled substance. This was not a technical amendment akin to changing the date of the alleged 'violation. The addition of this amendment prejudiced the substantive rights of the Appellant. As such, this Court reverses the trial court’s revocation of the Appellant’s probation without prejudice as to the right of the State to refile an appropriate affidavit in this case. See Perkins, 842 So.2d at 276.
REVERSED and REMANDED with instructions.
ROBERTS, RAY, and SWANSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Terence Keith Gray v. State, 170 So. 3d 890 (Fla. 3d DCA 2015)…bation based on that additional ground. See Thomas v. State, 159 So. 3d 937 (Fla. 3d DCA 2015) (holding that it was error to revoke probation when the basis for the violation was not alleged in the violation of probation affidavit); Osteen v. State, 147 So. 3d 678, 679 (Fla. 1st DCA 2014) (“It is well settled that the revocation of probation based upon a violation not alleged in the charging document is a deprivation of the right to due process of law.”). Nonetheless, we affirm the revocation of probation ba…
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Jabare Edwards v. State, 243 So. 3d 520 (Fla. 1st DCA 2018)…felony fleeing and eluding and grand theft motor vehicle, this court has held that it is a violation of due process and fundamental error to revoke a defendant's probation based on grounds not alleged in the charging affidavit. See Osteen v. State , 147 So. 3d 678, 679 (Fla. 1st DCA 2014) ; Bonner v. State , 138 So. 3d 1101, 1102 (Fla. 1st DCA 2014) ; Perkins v. State , 842 So. 2d 275, 277 (Fla. 1st DCA 2003) ; N.L. v. State , 825 So. 2d 509, 510 (Fla. 1st DCA 2002). However, in this case, the error does not…
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Jabare Edwards v. State (Fla. 1st DCA 2018)
Authorities Cited (11 total)
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- State v. Causey, 503 So. 2d 321 (Fla. 1987)
- In re App. Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991)
- Gillis Watson v. State, 842 So. 2d 275 (Fla. 1st DCA 2003)
- Perkins v. State, 842 So. 2d 275 (Fla. 1st DCA 2003)
- Parminter v. State, 762 So. 2d 966 (Fla. 2d DCA 2000)
- N.L. v. State, 825 So. 2d 509 (Fla. 1st DCA 2002)
- Capehart v. State, 692 So. 2d 984 (Fla. 2d DCA 1997)
- State v. Garcia, 692 So. 2d 984 (Fla. 3d DCA 1997)
- Clerico v. State, 658 So. 2d 175 (Fla. 2d DCA 1995)