No Violation Of Probation If The Improper Conduct Is Not In The VOP Affidavit
The defendant was placed on probation for drug possession. The defendant was charged with violating probation for purchasing/possessing pseudoephedrine. The defendant filed a motion to dismiss the violation of probation because the rules of the defendant’s probation said the defendant could not take any over counter medication containing pseudoephedrine and the violation of probation affidavit alleged that the defendant “purchased/possessed” pseudoephedrine. The probation rules prohibited the defendant from taking any over the counter medication containing pseudoephedrine but the defendant was charged with violating his probation by purchasing/possessing pseudoephedrine. Therefore, according to the probation rules the defendant could purchase over the counter medication containing pseudoephedrine and could possess over the counter medication containing pseudoephedrine the defendant just could not “take” any over the counter medication with pseudoephedrine. The motion to dismiss was denied by the trial court. After a violation of probation hearing the trial court found the defendant in violation of probation and sentenced the defendant. The defendant appealed.
The appeals court stated that an affidavit for violation of probation must allege the basic facts concerning the alleged violation such as its nature, time and place of occurrence. According to the appeals court because the violation of probation affidavit alleged that the defendant “purchased/possessed pseudoephedrine and only “taking” any over the counter medication containing pseudoephedrine was prohibited by the defendant’s probation rules the defendant was improperly found to be in violation of probation by the trial court. The appeals court stated that the trial court improperly based the violation of probation on a charge that was not alleged in the violation of probation affidavit.
See Little v. State, 143 So.3d 465 (Fla. 5th DCA 2014)