STATE OF FLORIDA, APPELLANT,
v.
EDDIE GREEN, APPELLEE
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PER CURIAM.
Appellee pled guilty to purchasing marijuana after spending eight days in jail. The trial court withheld adjudication and sentenced appellee to time already served in prison. We reverse based on State v. Seward, 543 So. 2d 398 (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 can be withheld if the defendant is put on probation, but not if the defendant is incarcerated. See State v. Scarantino, 543 So. 2d 399 (Fla. 4th DCA 1989). We remand to the trial court to reconsider whether to adjudicate appellant guilty or to withhold adjudication and place appellant on probation with a special condition of jail time already served.
HERSEY and WARNER, JJ„ concur. ANSTEAD, J., dissents with opinion.
ANSTEAD, Judge,
dissenting.
I do not see anything illegal or improper in the judge’s disposition of this case, and find it difficult to reconcile a remand for resentencing with our need to efficiently utilize judicial resources.
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State v. Oates, 610 So. 2d 522 (Fla. 2d DCA 1992)…this is not what the trial court intended to do, this was the practical effect of the orders sentencing Oates. As such, the sentencing was improper. As a general rule, adjudication cannot be withheld if a defendant is incarcerated. State v. Green, 581 So. 2d 1008 (Fla. 4th DCA1991); State v. Scarantino, 543 So. 2d 399 (Fla. 4th DCA1989); State v. Seward, 543 So. 2d 398 (Fla. 4th DCA1989); Thomas v. State, 356 So. 2d 846 (Fla. 4th DCA), cert. denied, 361 So. 2d 835 (Fla.1978); Fla.R.Crim.P. 3.670. However, ad…
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Melvee Wanel Tucker v. State, 78 So. 3d 36 (Fla. 3d DCA 2012)…o imposing a term of incarceration. See Fla. R.Crim. P. 3.670; McClellan v. State, 819 So. 2d 946 (Fla. 2d DCA 2002). This is true even if the court is sentencing the defendant to time he has already served in jail prior to the plea. State v. Green, 581 So. 2d 1008 (Fla. 4th DCA 1991). However, the court can withhold adjudication, place a defendant on probation, and impose a period of incarceration as a special condition of that probation, so long as the period of incarceration is less than one year. Id.…
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McCLELLAN v. State, 819 So. 2d 946 (Fla. 2d DCA 2002)…The trial court made no further comment regarding this alleged error. Generally a trial court cannot withhold adjudication of guilt if a defendant is given a term of incarceration. State v. Oates, 610 So. 2d 522 (Fla. 2d DCA 1992); State v. Green, 581 So. 2d 1008 (Fla. 4th DCA 1991); State v. Scarantino, 543 So. 2d 399 (Fla. 4th DCA 1989); Fla. R.Crim. P. 3.670. Since the trial court did not make a complete review of the record, we remand for the trial court to review all sentencing [*947] documents and the…
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- Thomas v. State, 356 So. 2d 846 (Fla. 4th DCA 1978)
- State v. Scarantino, 543 So. 2d 399 (Fla. 4th DCA 1989)
- State v. Seward, 543 So. 2d 398 (Fla. 4th DCA 1989)