DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GREGORY GUN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-3509
[April 8, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Lisa M. Porter, Judge; L.T. Case No. 12004247CF10A.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
GERBER, J.
The defendant appeals from the circuit court’s order finding that he
violated his community control by possessing synthetic marijuana. The
defendant argues that “synthetic marijuana,” as that term was used in the
violation affidavit, is not included among the controlled substances
proscribed in section 893.03, Florida Statutes (2013), and therefore
testimony that the substance which the defendant possessed was
“synthetic marijuana” could not establish that he violated his community
control.
We affirm. This argument was not raised to the circuit court, and thus
was not preserved. See Filan v. State,
768 So. 2d 1100, 1101 (Fla. 4th
DCA 2000) (“An issue or objection is ‘preserved’ within the meaning of
[section 924.051(1)(b), Florida Statutes,] if it was timely raised and ruled
on by the trial judge and if the objection was ‘sufficiently precise that it
fairly apprised the trial court of the relief sought and the grounds therefor.’”)
(emphasis added; citation omitted). Due to this lack of preservation, we
issue no opinion at this time on whether the defendant’s argument on
appeal has merit.
Further, given that the defendant admitted possessing the substance
at issue and ultimately acknowledged that the substance was illegal, we
conclude that if any technical defect or error existed in the lack of
specificity for which the violation was charged, we do not consider that
error to be fundamental. See Holley v. State,
128 So. 3d 111, 113 (Fla. 4th
DCA 2013) (“Technical defects in a VOP affidavit . . . would not deprive the
trial court of jurisdiction or constitute fundamental error that could be
raised for the first time on direct appeal.”) (citations omitted); Chadwick v.
State,
118 So. 3d 827, 830 (Fla. 2d DCA 2012) (“An affidavit of VOP, like a
criminal information, is ‘fundamentally defective only where it totally omits
an essential element of the crime or is so vague, indistinct or indefinite
that the defendant is misled or exposed to double jeopardy.’”) (citation
omitted). As our supreme court stated in Hines v. State,
358 So. 2d 183
(Fla. 1978):
[A]n affidavit upon which a permanent revocation of probation
is to be based must allege the basic facts concerning the alleged
violation, such as its nature, time, and place of occurrence.
However, an allegation concerning the commission of a crime
need not be set forth with the specificity required in criminal
indictments and informations. The primary goal is notice
comporting with minimal due process rights. If a probationer
needs additional information in order to properly prepare a
defense to the charges, the various methods of discovery under
our rules are available to [the probationer].
Id. at 185 (emphasis added; footnote omitted).
Affirmed.
LEVINE and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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