Supreme Court of Florida

____________

No. SC20-1656

____________

NGOC C. THACH,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

June 30, 2022

GROSSHANS, J.

In this case, we consider whether midtrial amendments to a 

charging document that alter the elements of a criminal offense are

per se prejudicial. For the reasons explained below, we hold that 

any such amendments should be assessed on a case-by-case basis 

to determine, based on the totality of the circumstances, if they

prejudice the substantial rights of the defendant. Consistent with 

our holding, we approve the First District Court of Appeal’s decision

in Thach v. State, 304 So. 3d 387, 388 (Fla. 1st DCA 2020), and 

disapprove the Fourth District Court of Appeal’s decisions in 
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Viladoine v. State, 268 So. 3d 804 (Fla. 4th DCA 2019), and Simbert 

v. State, 226 So. 3d 883 (Fla. 4th DCA 2017), to the extent that they 

apply a per se prejudice rule to midtrial amendments.1

I. Background

Through a second amended information, the State charged 

Ngoc C. Thach with three counts of capital sexual battery, nine

counts of sexual battery, and three counts of lewd or lascivious 

molestation. As charged, these crimes were committed against his 

three stepdaughters. Relevant to this case are two counts of capital 

sexual battery and two counts of sexual battery. We refer to all four 

as sexual battery counts.

At trial, the three stepdaughters testified for the State,

detailing Thach’s multiple sexual encounters with them. However, 

they did not give any testimony establishing one element of sexual 

battery (penetration or union with the victim’s body part) for the 

four sexual battery counts. As a result, the evidence as to those 

charges was insufficient to prove an essential element of the 

offenses as charged. See § 794.011(1)(h), Fla. Stat. (2017).

1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
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Noting the lack of evidence of penetration or union, Thach

sought a judgment of acquittal as to those four sexual battery 

charges. After expressing agreement with Thach’s insufficiency 

argument, the State moved to amend the four counts so that each 

alleged the crime of lewd or lascivious molestation. Defense counsel 

objected, describing the prejudice to Thach as follows:

Well, Judge, I guess the only thing is that the lewd and 

lascivious molestation would require evidence of lewd or 

lascivious touching. And so the State is alleging that the 

union satisfies that and potentially I could have crossexamined the witness more in that sense, had I known 

the State might proceed on that charge. And I 

understand that, you know, I had the opportunity to 

cross-examine the witness, but to that extent that’s the 

only thing I can suggest to the court would create a 

prejudice.

Rejecting Thach’s argument on prejudice, the trial court 

allowed the amendment. Ultimately, the jury found Thach guilty on 

the four amended counts and others. The court entered judgment 

in accordance with the verdicts and imposed lengthy prison 

sentences.

Thach appealed, arguing that the trial court erred in allowing

the midtrial amendment. The First District disagreed. At the 

outset, the court articulated the following legal standard governing 
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amendments: “[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.’ ” Thach, 304 So. 3d at 388 (quoting State v. Anderson, 

537 So. 2d 1373, 1375 (Fla. 1989)). Applying that standard, the 

court held that the amendment did not prejudice Thach. This was 

so, the First District reasoned, because the four sexual batteries 

were charged in such a way “that the amended lewd or lascivious 

molestation charges could not help but have been proven if the . . . 

[sexual battery] allegations were proven.” Id. at 388. Judge Bilbrey 

dissented. He would have reversed, reasoning that because the 

amendment altered the elements of the charged offense it violated 

due process and was per se prejudicial. Id. at 391 (Bilbrey, J. 

dissenting).

Thach then sought discretionary review of the First District’s 

decision on the basis that it expressly and directly conflicts with the 

Fourth District’s case law on the application of a per se prejudice
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rule for substantive midtrial amendments. We granted 

discretionary review to resolve the conflict.2

II. Legal Standard

Our well-established standard for amending an information 

midtrial was first adopted in Lackos v. State, 339 So. 2d 217, 219 

(Fla. 1976). In that case, we abandoned a strict formalistic

approach and adopted a more flexible standard which required the 

trial court to consider the prejudice to the accused to determine if 

the amendment was permissible. We noted that the emphasis on 

prejudice, rather than technical irregularities, was consistent with 

rule 3.140(o) of the Florida Rules of Criminal Procedure.3

2. Because the conflict issue here requires us to determine 

the proper rule of law governing substantive midtrial amendments, 

the standard of review is de novo. See Khianthalat v. State, 974 So. 

2d 359, 360 (Fla. 2008).

3. Today’s version of the rule is nearly identical to the prior 

version we considered in Lackos and provides as follows:

No indictment or information, or any count thereof, shall 

be dismissed or judgment arrested, or new trial granted 

on account of any defect in the form of the indictment or 

information or of misjoinder of offenses or for any cause 

whatsoever, unless the court shall be of the opinion that 

the indictment or information is so vague, indistinct, and 

indefinite as to mislead the accused and embarrass him 

or her in the preparation of a defense or expose the 
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In the forty-five years since Lackos was decided, we have 

reaffirmed our commitment to the prejudice standard as governing 

the permissibility of midtrial amendments. See Anderson, 537 So. 

2d at 1375 (“Lackos stands for the proposition that the 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.”); State v. Clements, 903 So.

2d 919, 921 (Fla. 2005) (Holding that the state may substantively 

amend an information midtrial unless it prejudices the defendant’s 

substantial rights).

Our case law has never recognized a per se prejudice rule. 

Rather, the origin of this rule appears to trace back to the Fourth 

District’s decision in Green v. State, 728 So. 2d 779 (Fla. 4th DCA 

1999). In applying the prejudice standard, the Fourth District

considered a midtrial amendment that changed the identity of the 

battery victim. Consistent with our case law, the Fourth District 

accused after conviction or acquittal to substantial 

danger of a new prosecution for the same offense.

Fla. R. Crim. P. 3.140(o).
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held that this amendment prejudiced the substantial rights of the 

defendant by significantly impairing the preparation of his defense. 

However, one sentence in Green’s analysis appears to have laid the 

groundwork for what would later be understood as the per se 

prejudice rule. The Green court reasoned that an “amendment is 

permissible when it merely clarifies some detail of the existing 

charge.” Id. at 781.

The First District expanded upon this reasoning in Wright v. 

State, 41 So. 3d 924, 926 (Fla. 1st DCA 2010). Holding that a

substantive midtrial change to the elements of the crime charged is 

per se prejudicial, the district court reasoned:

While a trial court’s ruling on a motion to amend the 

information is reviewed for an abuse of discretion, it is 

well settled that the State may not amend an information 

during trial if the amendment prejudices the defendant. 

It is likewise clear the changing or adding of an offense in 

an information is a substantive change evoking prejudice 

and requiring a continuance. Further, an amendment 

that substantively alters the elements of the crime charged 

is per se prejudicial.

Id. at 926 (emphasis added) (citations omitted).

Since Wright, the per se prejudice rule has been applied in 

only a handful of cases—namely, the two conflict cases.
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In Simbert, the Fourth District reversed the defendant’s 

conviction for lewd or lascivious battery after the State’s midtrial 

amendment changed an element of the charge from oral to digital 

penetration. 226 So. 3d at 885. The court, relying on Green and

Wright, held that the amendment was per se prejudicial because it 

did not merely clarify the charge but instead changed an essential 

element of the crime. Id. at 885-86.

Similarly, in Viladoine, the Fourth District reversed a sexual 

battery conviction where the mode of unlawful contact was 

amended midtrial, reasoning that the amendment altered the 

elements of the charged crime and was thus per se prejudicial. 268 

So. 3d at 805-06.

Having reviewed our case law, we now conclude that this per 

se prejudice rule is an unwarranted expansion of Lackos, Anderson, 

and Clements—which do not hold or suggest that one factor will

always be dispositive of the prejudice analysis. And neither Thach 

nor the dissent provide any persuasive reason to extend Lackos, 

Anderson, and Clements in this regard. Accordingly, we reaffirm 

that the proper standard is an individualized showing of prejudice 
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to the substantial rights4 of the defendant. Prejudice, in this 

context, depends not on any one factor, but on the totality of the 

circumstances at the time of the amendment. Contrary to the 

dissent’s unfounded assertion, we are not creating a new standard

today. The standard we now adhere to has been our rule for fortyfive years.5

Nor do we share Thach’s or the dissent’s concerns that this

standard is too difficult for Florida courts to apply uniformly. In 

comparable circumstances, we have found this type of 

individualized fact-specific analysis workable. For example, when 

the State commits a discovery violation in a criminal case, it does 

4. In this context, a defendant’s substantial rights encompass 

the right to a fair trial. 38 Fla. Jur. 2d New Trial § 12 (2022)

(equating substantial rights with entitlement to a fair trial); cf. 

Carlson v. State, 166 So. 3d 957, 959 (Fla. 4th DCA 2015); 

Hutchinson v. State, 738 So. 2d 473 (Fla. 4th DCA 1999); Peevey v. 

State, 820 So. 2d 422 (Fla. 4th DCA 2002). 

5. We acknowledge that today is the first time we have used 

the phrase “totality of the circumstances” in discussing the 

prejudice analysis. However, it is clear from our case law that the 

prejudice determination depends on the facts and circumstances of 

the case being reviewed. Thus, we break no new ground by saying 

that the prejudice analysis requires consideration of the totality of 

the circumstances.
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not result in an automatic mistrial. Instead, the trial court 

conducts a Richardson6 analysis to determine whether the discovery 

violation warrants a mistrial or some other remedy. See Landry v. 

State, 931 So. 2d 1063, 1065 (Fla. 4th DCA 2006). Carrying out 

this analysis requires courts to look to the specific facts and 

circumstances of each case and determine whether the defendant 

was prejudiced by the discovery violation. See McDuffie v. State, 

970 So. 2d 312, 321 (Fla. 2007). And like the individualized 

prejudice analysis for midtrial amendments, it safeguards 

defendants’ rights while ensuring the prompt and efficient 

administration of justice.7

6. Richardson v. State, 246 So. 2d 771 (Fla. 1971).

7. To the extent the dissent expresses concern that a totality

of the circumstances test is insufficient to protect the constitutional 

interest at stake, that concern is misplaced. Courts routinely 

analyze due process claims by assessing the totality of the 

circumstances. See Moore v. State, 289 So. 3d 943, 945 (Fla. 4th 

DCA 2020) (voluntariness of confession); State v. Laing, 182 So. 3d 

812, 816 (Fla. 4th DCA 2016) (objective entrapment); Rolle v. State, 

112 So. 3d 729, 730 (Fla. 3d DCA 2013) (suggestiveness of out-ofcourt eyewitness identification); Wilson v. State, 845 So. 2d 142, 

156 (Fla. 2003) (imposition of increased sentence “after 

unsuccessful plea discussions in which the trial judge 

participated”); Luckes v. Cnty. of Hennepin, 415 F.3d 936, 939 (8th 

Cir. 2005) (extended detention following arrest authorized by lawful 

warrant); Norris v. Engles, 494 F.3d 634, 638 (8th Cir. 2007) 
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Finally, we categorically reject the dissent’s assertion that our

decision will lead to “trials by ambush.” In no way do we suggest 

that the State has unfettered discretion to amend the information at 

any time or for any reason. Where, under the facts and 

circumstances of the individual case, an amendment prejudices a 

defendant’s substantial rights, that amendment would be improper.

See, e.g., Davis v. State, 313 So. 3d 835 (Fla. 2d DCA 2021); Davis 

v. State, 740 So. 2d 86 (Fla. 1st DCA 1999); Johnson v. State, 439 

So. 2d 342 (Fla. 2d DCA 1983); Turner v. State, 376 So. 2d 429, 430 

(Fla. 1st DCA 1979). However, we decline to adopt a blanket rule 

that requires a finding of prejudice when a midtrial amendment 

alters the elements of a charged offense.

D. Application

Having determined the applicable law, we return to the facts

before us. The First District applied the correct rule of law by using 

the prejudice standard and engaging in a fact-specific individualized

inquiry. It considered the allegations in the information compared 

(conscience-shocking conduct by government officer); Hale v. Boyle 

Cnty., 18 F.4th 845, 852 (6th Cir. 2021) (excessive force on 

detained individuals).
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to the amended charges and the defendant’s theory of the case. As 

to the latter point, the court stressed:

The State charged and convicted Appellant on other 

counts of lewd or lascivious molestation against the same 

victims. And Appellant’s trial tactics on these counts 

never suggested that the stepdaughters misinterpreted 

Appellant’s touching, or that he did not conduct these 

acts in a sensual manner. Appellant cross-examined 

each victim, knowing that he was charged with multiple 

counts, including other lewd or lascivious acts, without 

questioning how he touched them. Instead, Appellant’s 

defensive posture was that his victims’ allegations were 

all fabricated.

Thach, 304 So. 3d at 389 (citing Holland, 210 So. 3d 238, 240 

(Fla. 1st DCA 2017)).

We further note that the amended charges alleged sexually 

motivated touching against the same victims and stemming from 

the same incidents as the original charges.

The dissent seems to suggest that Thach was prejudiced 

because he was unaware of the amended charges before trial and 

thus relied on the original charges in his jury selection, opening 

statements, and cross-examination of the witnesses. See dissenting

op. at 18. However, the dissent overlooks facts supporting a finding 

of no prejudice. Besides the points noted above, had the amended 

charges prejudiced Thach, we would have expected him to request 
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that the court recall witnesses for additional cross-examination so 

that he “could have cross-examined the witness[es] more in that 

sense.” But Thach did not. Nor did he request a continuance. 

Instead, he chose to proceed on the charges as amended and gave a 

closing argument that repeated the same themes discussed in 

opening statements.

Accordingly, based on our review of the record, we agree that 

Thach was not prejudiced by the midtrial amendment. Thus, the 

amendment was permissible.

E. Conclusion

Because the First District applied the correct prejudice 

standard and its analysis is supported by the record, we approve

the decision below. We disapprove of Simbert, Viladoine, and Wright

to the extent they apply the per se prejudice rule and are 

inconsistent with this opinion.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, and 

COURIEL, JJ., concur.

LABARGA, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION 

AND, IF FILED, DETERMINED.
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LABARGA, J., dissenting.

At the time this case proceeded to trial by jury, Ngoc Thach 

was charged with three counts of capital sexual battery, eight 

counts of sexual battery, and three counts of lewd or lascivious 

molestation. The charged offenses stemmed from incidents 

involving Thach’s three stepdaughters. Because the victims failed 

to give testimony establishing penetration or union with respect to 

four of the sexual battery counts, Thach sought a judgment of 

acquittal after the conclusion of the State’s case-in-chief. Over 

Thach’s prejudice objections, the trial court permitted the State to 

amend—or replace—these four counts so that each instead charged 

the crime of lewd or lascivious molestation. Thach did not testify 

nor present any witnesses; thus, the evidentiary phase of this jury 

trial formally ended immediately after the State was permitted to 

replace the four sexual battery counts with four counts of lewd or 

lascivious molestation.8

8. In fact, for all practical purposes, the presentation of 

evidence ended even before the charges were amended. After the 

State rested its case and the trial court excused the jury to address 

Thach’s motion for judgment of acquittal—which led to the State
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Consequently, defense counsel delivered his closing argument 

without having an opportunity to cross-examine the victims 

specifically about the amended charges. Because Thach was clearly 

prejudiced by these amendments at the very end of the evidentiary 

phase of his trial, his unequivocal right to due process of law was 

violated.

The events leading up to the motion for judgment of acquittal 

and the trial court’s ruling are well described in Judge Bilbrey’s 

dissent:

After the State rested its case-in-chief, Appellant moved 

for a judgment of acquittal as to counts 2 and 3, each of 

which alleged sexual battery by a person age 18 or older 

upon a child under the age of 12 years, a crime known as 

capital sexual battery. The prosecutor initially agreed 

that a JOA was warranted as to counts 2 and 3. The 

prosecutor also agreed that a JOA was warranted as to 

count 8, which alleged sexual battery by a person in 

familial or custodial authority of a child between the age 

of 12 and 18 years. Further, the prosecutor conceded 

that the evidence did not establish capital sexual battery 

as alleged in count 1.

As for counts 12 and 13, the prosecutor argued that 

those counts of sexual battery by a person in familial or 

custodial authority of a child between the age of 12 and 

18 years, should be “JOAed down to a lesser included 

being allowed to amend the charges—the defense rested without 

presenting any witnesses.
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offense[s] of molestation.” Defense counsel reminded the 

trial court that lewd and lascivious molestation is not a 

lesser included offense of sexual battery by a person in 

familial or custodial authority. The trial court agreed to 

give the parties some time to consider the appropriate 

dispositions.

After a break, the prosecutor announced that she 

did not think, after all, the charges could be reduced by 

“JOA-ing . . . down,” and therefore, she orally moved to 

amend count 1 from capital sexual battery to lewd or 

lascivious molestation. The defense objected. When 

asked what prejudice the defense would suffer, defense 

counsel replied that his cross-examination would have 

been different, and he would have cross-examined the 

victim regarding the evidence to support lewd and 

lascivious touching. The objection was overruled. The 

State was also permitted to orally amend counts 2, 12, 

and 13 to allege lewd and lascivious molestation rather 

than sexual battery, over the objection of the defense. A 

judgment of acquittal was entered as to counts 3 (capital 

sexual battery) and 8 (sexual battery by a person in 

familial or custodial authority on a child between the age 

of 12 and 18 years).

Thach v. State, 304 So. 3d 387, 390 (Fla. 1st DCA 2020) (Bilbrey, J., 

dissenting) (citations omitted) (emphasis added).

The First District agreed with the trial court’s conclusion, 

holding that amending the four counts did not prejudice Thach. Id. 

at 388. The court noted, “While the two crimes are different, the 

manner that these four sexual battery counts were charged in the 

second amended information were such that the amended lewd or 
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lascivious molestation charges could not help but have been proven 

if the greater offense allegations were proven.” Id.

As emphasized by Judge Bilbrey’s dissent, “[a]lthough the 

conduct constituting capital sexual battery will as a practical 

matter ordinarily—if not always—also constitute lewd or lascivious 

molestation, the formal elements of these two crimes are quite 

different.” Id. at 391 (quoting Roughton v. State, 185 So. 3d 1207, 

1210 (Fla. 2016)). Section 794.011(1)(h), Florida Statutes (2016), 

defines “sexual battery” as the “oral, anal, or vaginal penetration by, 

or union with, the sexual organ of another or the anal or vaginal 

penetration of another by any other object,” while section 

800.04(5)(a) defines lewd or lascivious molestation as when a 

perpetrator “intentionally touches in a lewd or lascivious manner 

the breasts, genitals, genital area, or buttocks, or the clothing 

covering them, of a person less than 16 years of age, or forces or 

entices a person under 16 years of age to so touch the perpetrator.”

Notably, the crime of “[l]ewd or lascivious battery is a 

permissive lesser included offense of sexual battery, Williams v. 

State, 957 So. 2d 595, 599 (Fla. 2007), and thus an ‘acquittal down’ 

could not have been granted reducing the charges to lewd or 
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lascivious battery either.” Thach, 304 So. 3d at 391 n.2 (Bilbrey, J., 

dissenting) (citing State v. Green, 149 So. 3d 1146, 1148 (Fla. 2d 

DCA 2014) (explaining that only a necessarily lesser included 

offense of the charged offense may be the subject of an “acquittal 

down”)). Thus, the State’s only option was to substantively amend 

the four charges, leaving defense counsel with the prospect of 

delivering his closing argument without having had the opportunity 

to cross-examine the victims specifically about the amended 

charges.

It is axiomatic that due process of law affords a person 

charged with having committed a crime with the right to know what 

the charge is before proceeding to trial. Here, after the defense 

proceeded throughout the State’s entire case-in-chief in reliance on 

the original charges, the State was permitted to substantively 

amend four charges. Defense counsel participated in jury selection, 

presented an opening statement, and conducted cross-examination 

of state witnesses, all under the umbrella of the original charges. 

Naturally then, once the State moved to amend the charges, defense 

counsel objected to the amendments and addressed the issue of 

prejudice. He stated: “I guess the only thing is that the lewd and 
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lascivious molestation would require evidence of lewd or lascivious 

touching. And so the State is alleging that the union satisfies that 

and potentially I could have cross-examined the witness more in 

that sense, had I known the State might proceed on that charge. 

And I understand that, you know, I had the opportunity to crossexamine the witness, but to that extent that’s the only thing I can 

suggest to the court would create a prejudice.”

Contrary to the First District’s curious suggestion that it 

“cannot imagine what other questions that Appellant would have 

asked the witnesses about the manner of his touches,” as noted by 

defense counsel at the time, he “could have cross-examined the 

witness more in that sense” had he known that the original charges 

would later be replaced with substantively different charges. Id.

Accordingly, I disagree with the majority’s conclusion that 

Thach was not prejudiced by these late amendments.

I also disagree with the majority’s decision to disapprove of the 

long-established per se prejudicial rule, which the majority notes, 

see majority op. at 6, traces back to 1999. See majority op. at 1-2 

(“We . . . disapprove the Fourth District Court of Appeal’s decisions 

in Viladoine v. State, 268 So. 3d 804 (Fla. 4th DCA 2019), and 
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Simbert v. State, 226 So. 3d 883 (Fla. 4th DCA 2017), to the extent 

that they apply a per se prejudice rule to midtrial amendments.”). 

In its place, the majority created a new standard for determining 

whether charges may be changed at any time during a trial: 

“Prejudice, in this context, depends not on one factor, but on the 

totality of the circumstances at the time of the amendment.” 

Majority op. at 9. Comparing this new standard to a Richardson

inquiry, the majority contends that the new standard will not be 

difficult for Florida courts to apply uniformly.9 See majority op. at 

9. This standard, however, casts such a wide net of factors and 

circumstances to consider that it is unlikely any defendant will ever 

be able to prove prejudice, regardless of how obvious the prejudicial 

effect of an amendment may be.

Moreover, the majority’s new standard ignores the import of 

the notice of charges aspect of due process of law: the accused 

must know the charges before trial. I agree with Judge Bilbrey that 

“[w]hen the State is permitted to amend a charge in midtrial, not 

merely to correct a scrivener’s error, but instead to change an

9. Richardson v. State, 246 So. 2d 771 (Fla. 1971).
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element of the offense, a defendant is thus subjected to be found 

‘guilty of a charge for which he was not on trial’ and such is a 

violation of due process.” Thach, 304 So. 3d at 391 (Bilbrey, J., 

dissenting).10

For more than two decades, the per se prejudicial rule has 

guarded the right to due process in cases where the State seeks, 

during trial, to substantively change a charged offense. This sound 

rule should have been applied here. It makes absolutely no sense, 

after not only the conclusion of the State’s case, but what turned 

out to be the presentation of all the evidence, to allow the State to 

amend four charges to allege crimes that require proof of different 

elements. For the majority to permit such a clear violation of due 

process will, in no small measure, facilitate the very thing that 

Florida laws, including Florida’s extensive rules of criminal 

procedure, are intended to prevent—trials by ambush.

10. Judge Bilbrey and the majority have noted that the 

amendments in this case occurred in midtrial. However, because 

Thach exercised his right not to present a defense case, the 

amendments actually occurred at the end of the evidentiary phase 

of the trial, with only closing argument and the jury charge left.
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The implications of the majority’s decision to reject the per se 

prejudicial rule cannot be understated. As a result of the majority’s 

disapproval of this decades-long safeguard, citizens will be required 

to proceed to trial without certainty of what the ultimate charges 

against them will be.

Because I cannot agree to such a diminution of our valued 

constitutional right to due process of law, I cannot agree with the 

majority’s decision.

I respectfully dissent.

Application for Review of the Decision of the District Court of Appeal

Direct Conflict of Decisions

First District – Case No. 1D19-3660

(Leon County)

Jessica J. Yeary, Public Defender, and A. Victoria Wiggins, 

Assistant Public Defender, Second Judicial Circuit, Tallahassee, 

Florida,

for Petitioner

Ashley Moody, Attorney General, Trisha Meggs Pate, Bureau Chief, 

and Virginia Chester Harris, Assistant Attorney General, 

Tallahassee, Florida

for Respondent