STATE OF FLORIDA, APPELLANT,
v.
ERIC FULMORE, APPELLEE
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The State appealed a trial court's decision to withhold adjudication of guilt for a defendant convicted of possession of cocaine, a third-degree felony. The appellate court reversed and remanded because the trial court failed to provide written findings as required by Florida Statute § 775.08435(1)(c) when a defendant had a prior withholding of adjudication for a different felony offense.
The trial court violated Florida Statute § 775.08435(1)(c) by withholding adjudication without providing written justification. Because the defendant had a prior withholding of adjudication for a felony offense not arising from the same transaction, the trial court was statutorily required to either obtain written State consent or make written findings justifying the withholding before granting it.
[1] A trial court may not withhold adjudication of guilt for a third-degree felony if the defendant has a prior withholding of adjudication for a felony offense from a differ…
[2] A trial court's failure to provide written justification for withholding adjudication, when required by statute due to a prior felony withholding, necessitates a remand f…
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Join FLexlaw to unlock all legal intelligence“Section 775.08435(l)(c), Florida Statutes, provides that a trial court may not withhold adjudication of guilt upon the defendant for a third degree felony if "the defendant has a prior withholding of adjudication for a felony offense that did not arise from the same transaction as the current felony offense" unless either the State requests such a withholding in writing or the trial court makes written findings that the withholding of adjudication is justified given the circumstances of the case.”
Establishes the statutory requirement that triggered the reversal
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Join FLexlaw to unlock all legal intelligenceEric Fulmore was charged with possession of cocaine, a third-degree felony, and entered a plea of nolo contendere. At sentencing, the State presented …
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Appellant, the State of Florida, appeals the trial court’s order withholding adjudication and sentencing Appellee, Eric Ful-more, to eighteen months probation. This court has jurisdiction. Fla. RApp. P. 9.140(b)(1)(C).
Appellee, Eric Fulmore, was charged with possession of cocaine, a third degree felony. Fulmore pled nolo contendere, and the trial court held a sentencing hearing. The State summarized Fulmore’s criminal record for the court explaining that in 2000 Fulmore had been charged with shooting a deadly missile, a second degree felony, and in 1991 he had been charged with civil theft, a misdemeanor. The State explained that adjudication had initially been withheld in Fulmore’s 2000 case and asked the court to adjudicate Fulmore guilty on the present charge and sentence him to eighteen months probation. Defense counsel asked that the court withhold adjudication. Fulmore addressed the court himself and again asked the judge to withhold adjudication explaining that he drove a garbage truck for a living and was the head of his household. The trial judge withheld adjudication and sentenced Fulmore to eighteen months probation.
The state now timely appeals and argues that the trial court erred in withholding adjudication because it was prohibited from doing so under the applicable Florida statute. Section 775.08435(l)(c), Florida Statutes, provides that a trial court may not withhold adjudication of guilt upon the defendant for a third degree felony if “the defendant has a prior withholding of adjudication for a felony offense that did not arise from the same transaction as the current felony offense” unless either the State requests such a withholding in writing or the trial court makes written findings that the withholding of adjudication is justified given the circumstances of the case.
Because Fulmore had benefitted from a withholding of adjudication in a prior felony case, in order to withhold adjudication of guilt in the present case, the trial court was required by section 775.08435(l)(c), Florida Statutes, to provide written justification. Thus, we remand in order for the trial court to revisit its sentencing determination, and to provide legally sufficient written reasons if it is still inclined to withhold adjudication.
Reversed and remanded.
KLEIN and STEVENSON, JJ., concur.
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State v. Tabias Calvert, 15 So. 3d 946 (Fla. 4th DCA 2009)…ition of a downward departure sentence without providing written reason» or engaging in the proper analysis. We affirm the sentence because the state failed to preserve the issue in the trial court.”). We recognize our decision in State v. Fulmore, 2 So. 3d 365 (Fla. 4th DCA 2008), but find it distinguishable. In Fulmore, the error involved section 775.08435(l)(e), Fla. Stat., which prohibits a trial court from withholding adjudication (without written findings) when there has been a prior unrelated withho…
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State v. Cook, 14 So. 3d 1155 (Fla. 4th DCA 2009)…tion is reasonably justified based on circumstances or factors in accordance with those set forth in s. 921.0026.” § 775.08435(1)(c)1. & 2. Thus, the statute limits the amount of felonies for which adjudication can be withheld. See State v. Fulmore, 2 So. 3d 365 (Fla. 4th DCA 2008). Regardless of which crime occurred first, once a defendant has been graced with a withhold of adjudication, section 775.08435(1)(c) prohibits a second withhold of adjudication if the felony offense did not “arise from the same…