STATE OF FLORIDA, APPELLANT,
v.
MARCUS FREEMAN, APPELLEE
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A no contest plea followed by a withhold of adjudication and completed probation is not a 'conviction' for purposes of the Criminal Punishment Code.
Marcus Freeman objected to scoring prior felonies and misdemeanors for which adjudication was withheld. The trial court excluded these offenses, follo…
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FULMER, Judge.
In this appeal, the State challenges the trial court’s ruling that a no contest plea followed by a withhold of adjudication and completed probation is not a “conviction” under Florida Rule of Criminal Procedure 3.704(d)(6), which defines “conviction,” for purposes of the Criminal Punishment Code,1 as “a determination of guilt that is the result of a plea or trial, regardless of whether adjudication is withheld.” We align ourselves with the First District and affirm the trial court’s ruling. See Batchelor v. State, 729 So. 2d 956 (Fla. 1st DCA 1999).
Marcus Freeman was tried by a jury and found guilty of two felonies. At the sentencing hearing, Freeman objected to the scoring of two prior felonies for which he had entered pleas of no contest and adjudication had been withheld. The trial court properly noted that it was required to follow Batchelor and directed that the two prior felonies be excluded from the scoresheet. Although not mentioned in its written order, the trial court orally ruled that it would exclude not only prior cases without adjudication arising from no contest pleas, but also cases arising from guilty pleas. And, the record reflects that the trial court excluded from the score-sheet three prior misdemeanors for which Freeman had entered guilty pleas and adjudication had been withheld.
The rationale of Batchelor does not support the exclusion of prior cases arising from guilty pleas. See 729 So. 2d at 958. Therefore, the trial court’s exclusion of the misdemeanors from Freeman’s scoresheet was error. Had the trial court included those cases as prior record, however, Freeman’s total scoresheet points would have increased by only .6 and his sentencing range would have remained that of a non-state prison sanction. Thus, we conclude that the error regarding the exclusion of the prior misdemeanors does not require resentencing.
Affirmed.
BLUE, A.C.J., and SALCINES, J., Concur. . See § 921.002, Fla. Slat. (Supp.1998).
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Cited By (12 total)
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Montgomery v. State, 821 So. 2d 464 (Fla. 4th DCA 2002)…. The court premised its holding on Garron v. State, 528 So. 2d 353 (Fla.1988), in which our supreme court came to that conclusion for purposes of sentencing in a death penalty case. Two other courts have agreed with Batchelor. See State v. Freeman, 775 So. 2d 344 (Fla. 2d DCA 2000); Negron v. State, 799 So. 2d 1126 (Fla. 5th DCA 2001). In Hill v. State, 805 So. 2d 61 (Fla. 3d DCA 2002), the third district, in dicta, disagreed with Batchelor. We disagree with Batchelor and those cases which have followed it…
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Cella v. State, 831 So. 2d 716 (Fla. 5th DCA 2002)…n is not a ‘conviction.’ ”) (citing Garron v. State, 528 So. 2d 353 (Fla.1988)); see also United States v. Willis, 106 F. 3d 966 (11th Cir.1997) (interpreting Florida law); St. Lawrence v. State, 785 So. 2d 728 (Fla. 5th DCA 2001); State v. Freeman, 775 So. 2d 344 (Fla. 2d DCA 2000); Batchelor v. State, 729 So. 2d 956 (Fla. 1st DCA 1999). Celia was also advised that his plea and sentence would “show up in a records search.” This, too, is correct. The clerk of the circuit court maintains criminal files and, u…
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Eliezer Negron v. State, 799 So. 2d 1126 (Fla. 5th DCA 2001)…bation successfully completed does not entail a ‘determination of guilt,’ such offenses should not be included as ‘prior record’ under the sentencing guidelines.” This court relied on the above quote from Batchelor. Id. Further, in State v. Freeman, 775 So. 2d 344 (Fla. 2d DCA 2000), the second district aligned itself with Batchelor in this regard. Accordingly, the sentence in this ease is reversed and the cause remanded for re-sentencing in accordance with Batchelor and Lawrence. REVERSED AND REMANDED. PLE…
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- Batchelor v. State, 729 So. 2d 956 (Fla. 1st DCA 1999)