Glenn Ryan Carlson v. State of Florida , 2015 Fla. App. LEXIS 9585 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GLENN RYAN CARLSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-345
[June 24, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Paul Backman, Judge; L.T. Case No. 11-16490 CF10A.
Carey Haughwout, Public Defender, and Jonathan Dodson, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla,
Assistant Attorney General, West Palm Beach, for appellee.
DAMOORGIAN, C.J.
Glenn Carlson (“Appellant”) appeals his conviction and sentence for one
count of resisting arrest without violence. Appellant argues that the trial
court erred when it allowed the state to amend the information mid-trial.
We agree and reverse.
During a law enforcement encounter, Appellant came in contact with
Officers Persails and Mendez. Appellant was arrested and ultimately
charged by information with resisting arrest without violence and battery
on a law enforcement officer as to Officer Mendez. At trial, both Officer
Persails and Mendez testified as to the events surrounding Appellant’s
arrest. After the state rested and the officers were released by the court,
the state moved to amend the information to add Officer Persails as an
alternative victim under the resisting without violence charge. Over
objection, the trial court allowed the mid-trial amendment. The jury found
Appellant guilty of one count of resisting without violence and one count
of battery on a law enforcement officer.1 This appeal follows.
Appellant contends that the trial court reversibly erred in allowing the
state to amend the information mid-trial. Specifically, Appellant argues
that by adding Officer Persails as an alternative victim, the state did not
truly amend the information but rather filed an entirely new charge against
Appellant. This, Appellant argues, unduly prejudiced him and deprived
him of his right to due process. The State counters that the trial court did
not abuse its discretion in allowing the amendment as it merely served to
clarify a small detail of the existing charge.
“[T]he state may substantively amend an information during trial, even
over the objection of the defendant, unless there is a showing of prejudice
to the substantial rights of the defendant.” Green v. State, 728 So. 2d 779,
780 (Fla. 4th DCA 1999). Generally, “amendment is permissible when it
merely clarifies some detail of the existing charge and could not reasonably
have caused the defendant any prejudice.” Id. at 781.
Our decision in Hutchinson v. State, 738 So. 2d 473 (Fla. 4th DCA
1999), is instructive to this case. In Hutchinson, the defendant was
charged with, among other things, resisting an officer without violence. Id.
at 473. Because no evidence was introduced at trial to prove that the
defendant resisted the particular officer listed in the information, the state
amended the information mid-trial to add a different officer to the charge.
Id. Concluding that the amendment was improper, we held:
[T]his was not simply an amendment which merely
clarified or corrected a simple misnomer, nor was it a case
of simply correcting the name of the victim where only a
single officer was involved and no one, including the
defendant, reasonably could have been misled as to the
identity of the victim. We agree with [the defendant] that
permitting the amendment was harmful error.
Id. at 474; see also Green, 728 So. 2d at 781.
Likewise, the mid-trial amendment in the instant case was not a mere
clarification of some detail in an existing charge. Rather, under the
specific facts of this case, the amendment was tantamount to adding a
new charge against Appellant. Hutchinson, 738 So. 2d at 473-74.
Accordingly, we reverse Appellant’s judgment and sentence for resisting
1 Appellant does not appeal his battery on a law enforcement officer
conviction.
2
arrest without violence.
Reversed.
TAYLOR and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3