147 So. 3d 678
Fla. Dist. Ct. App.2014Background
- Osteen was placed on community control/probation in September 2011 in three underlying cases.
- Probation was revoked in November 2013, prompting a timely appeal.
- Counsel filed an Anders brief after a Causey order; the court reviewed the issues and reversed to remand.
- In May 2013 a VOP affidavit included a new charge: soliciting a prostitute.
- At the November 2013 VOP hearing, the State sought to orally amend to drop prostitution and add five new violations (burglary of unoccupied dwelling, possession of a controlled substance, burglary tools, drug paraphernalia, petit theft).
- The trial court heard testimony, then apparently accepted the amendment and found a preponderance of evidence for the five new violations, revoking probation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether oral amendment of VOP affidavit violated due process | Osteen argues amendment added new charges, prejudicing rights. | State contends amendment was permissible if no prejudice to substantial rights. | Amendment prejudiced substantive rights; revocation reversed and remanded. |
Key Cases Cited
- Perkins v. State, 842 So. 2d 275 (Fla. 1st DCA 2003) (probation revocation cannot be based on uncharged conduct)
- N.L. v. State, 825 So. 2d 509 (Fla. 1st DCA 2002) (due process concerns with uncharged conduct)
- Parminter v. State, 762 So. 2d 966 (Fla. 2d DCA 2000) (limits on amendment of probation violations)
- Rosser v. State, 658 So. 2d 175 (Fla. 3d DCA 1995) (prejudice analysis for amendments to charging document)
- State v. Causey, 503 So. 2d 321 (Fla. 1987) (Causey as Causey order related to Anders procedure)