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.
2

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.