STATE OF FLORIDA, APPELLANT,
v.
VERNON COOK, APPELLEE
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Florida appeals a trial court's decision to withhold adjudication and place a defendant on probation for cocaine possession despite the defendant having previously received a withhold of adjudication for another felony. The court held that Florida Statute 775.08435(1)(c) prohibits a second withhold of adjudication for a third-degree felony unless the prosecutor requests it in writing or the court makes written findings justifying the withhold.
A trial court may not withhold adjudication for a third-degree felony offense if the defendant has a prior withholding of adjudication for a felony that did not arise from the same transaction, unless either the prosecutor requests the withhold in writing or the court makes written findings that withholding is reasonably justified based on circumstances set forth in Florida Statute 921.0026. The chronological order of the offenses is irrelevant to this prohibition.
[1] A court may not withhold adjudication of guilt for a third-degree felony offense if the defendant has a prior withholding of adjudication for a felony offense that did no…
[2] The statutory exceptions allowing withholding of adjudication despite a prior withhold require either a written request from the prosecutor or written findings by the cou…
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Join FLexlaw to unlock all legal intelligence“A "court may not withhold adjudication of guilt upon the defendant for ... [a] third degree felony offense 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." § 775.08435(1)(c), Fla. Stat. (2007).”
Establishes the core statutory prohibition against multiple withholds of adjudication for unrelated felonies.
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Join FLexlaw to unlock all legal intelligenceThe defendant was charged with cocaine possession, a third-degree felony. His prior record included a previous cocaine possession offense. Before tria…
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The State appeals a judgment withholding adjudication and placing the defendant on probation for possession of cocaine. It argues the trial court erred in refusing to adjudicate the defendant guilty, pursuant to section 775.08435(1)(c), Florida Statutes (2007). We agree and reverse.
*1156The State charged the defendant with possession of cocaine (Case No. 07-4462CF10A). The defendant’s scoresheet listed a possession of cocaine offense, a third degree felony, in his prior record. At the plea hearing, the prosecutor advised the court that the defendant had entered a plea in another case (Case No. 07-6980CF10A) before a different judge and had received a withhold of adjudication even though that charge arose after the present charge. The prosecutor then offered the defendant an adjudication and eighteen months probation.
The trial court noted that the present case had an older case number and involved an earlier arrest. The court therefore concluded it was the defendant’s first offense. The prosecutor argued that the defendant was ineligible for a second withhold of adjudication. Defense counsel acknowledged that the defendant had received a prior withhold and 18 months probation on the second charge, but argued he was still entitled to have the adjudication withheld because the present case was actually the first offense. The trial court told the defendant that if he pled open to the court, the court would consider withholding adjudication. The defendant entered an open no contest plea.
The trial court then withheld adjudication and sentenced the defendant to 15 months probation because it was his first offense and had occurred prior to the other charge. The State objected to the sentence, and filed this appeal.
The law is straightforward on this issue. A “court may not withhold adjudication of guilt upon the defendant for ... [a] third degree felony offense 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.” § 775.08435(1)(c), Fla. Stat. (2007). The only exceptions to this rule are when the prosecutor requests “in writing that adjudication be withheld” or if the “court makes written findings that the withholding of adjudication 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 transaction” and neither exception applies. We therefore reverse and remand the case to the trial court for either re-sentencing or for legally sufficient written reasons to withhold adjudication in accordance with section 921.0026, Florida Statutes.
Reversed and Remanded.
STEVENSON and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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State v. Jean, 114 So. 3d 451 (Fla. 4th DCA 2013)…s a court from withholding adjudication on a third-degree felony offense if the defendant has two or more prior withholds for a felony that did not arise from the same transaction as the current charge. We enforced that restriction in State v. Cook, 14 So. 3d 1155, 1156 (Fla. 4th DCA 2009). Here, the trial court withheld adjudication because the defendant “has strong family support. He’s a young man. He’s done good work. He’s suffered enough. And, let’s see. It’s the Court’s opinion it doesn’t require a leng…
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Braine v. State, 255 So. 3d 470 (Fla. 2d DCA 2018)…om withholding adjudication in this - 5 - circumstance." Id. The Fourth District relied on the plain language of the statute and determined that the two prior withholds barred the defendant from receiving a third. Id. See also State v. Cook, 14 So. 3d 1155, 1156 (Fla. 4th DCA 2009) ("[O]nce 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 transaction' . . . ."). Mr. Bra…
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State v. LY, 208 So. 3d 330 (Fla. 5th DCA 2017)…two or more prior withholdings of adjudication for felonies that did not arise from the same transaction as the current felony offense. See § 775.08435(1)(c)2, Fla. Stat. (2015); State v. Jean, 114 So. 3d 451, 452 (Fla. 4th DCA 2013); State v. Cook, 14 So. 3d 1155, 1156 (Fla. 4th DCA 2009). Accordingly, we reverse that portion of the judgment and sentence withholding adjudication for the third-degree felony and remand for resentencing. AFFIRMED, in part; REVERSED, in part; and REMANDED. TORPY, EVANDER a…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Fulmore, 2 So. 3d 365 (Fla. 4th DCA 2008)