STANLEY WYKRETOWICZ
v.
STATE OF FLORIDA
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Florida appellate court affirmed conviction for culpable negligence but noted in concurrence that the trial court improperly withheld adjudication while imposing jail time, though the issue was not preserved for review because the State did not challenge the sentence.
A conviction for culpable negligence as a lesser-included offense of neglect of a child causing great bodily harm is affirmed where no reversible error is shown.
[1] Adjudication of guilt cannot be withheld when a jail term is imposed; incarceration must instead be imposed as a special condition of probation if adjudication is to be w…
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Join FLexlaw to unlock all legal intelligenceStanley Wykretowicz was convicted after trial of culpable negligence, a lesser-included offense of the charged crime of neglect of a child causing gre…
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PER CURIAM.
AFFIRMED.
EVANDER, C.J., and EISNAUGLE, J., concur. LAMBERT, J., concurring specially with opinion.
LAMBERT, J., concurring specially with opinion. 5D18-316
Stanley Wykretowicz was convicted after trial of culpable negligence, a lesser-included offense of the charged crime of neglect of a child causing great bodily harm. Because Wykretowicz has not shown reversible error here, I agree with the affirmance of his conviction.
I briefly write to address the sentence imposed. The trial court withheld an adjudication of guilt and sentenced Wykretowicz to serve sixty days in the county jail with sixty days of jail credit. This was improper. See State v. Scarantino, 543 So. 2d 399, 399 (Fla. 4th DCA 1989) (“Under Florida Rule of Criminal Procedure 3.670 and Thomas v. State, 356 So. 2d 846 (Fla. 4th DCA 1978), adjudication cannot be withheld if a jail term is imposed.”). Based upon the trial court’s intent to withhold an adjudication of guilt here, it should have placed Wykretowicz on probation, withheld the adjudication of guilt, and imposed the sixty days of incarceration as a special condition of the probation. See Tucker v. State, 78 So. 3d 36, 37 n.3 (Fla. 3d DCA 2012) (citing State v. Green, 581 So. 2d 1008, 1009 (Fla. 4th DCA 1991)). However, because the State has not challenged the sentence in this direct appeal, this issue has not been preserved for our present review.
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Citator
Cited By
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Larkins v. State (Fla. 5th DCA 2019)
Authorities Cited
- Thomas v. State, 356 So. 2d 846 (Fla. 4th DCA 1978)
- State v. Scarantino, 543 So. 2d 399 (Fla. 4th DCA 1989)
- Melvee Wanel Tucker v. State, 78 So. 3d 36 (Fla. 3d DCA 2012)
- Tyler v. State, 581 So. 2d 1008 (Fla. 3d DCA 1991)
- State v. Green, 581 So. 2d 1008 (Fla. 4th DCA 1991)