                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

RAYMOND ASHLEY OSTEEN,               NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D13-6007

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed October 1, 2014.

An appeal from the Circuit Court for Escambia County.
Linda L. Nobles, Judge.

Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.




PER CURIAM

      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 (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.

        In 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

1
    State v. Causey, 503 So. 2d 321 (Fla. 1987).

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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

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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.




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