STATE OF FLORIDA, APPELLANT,
v.
BRIAN JEAN, APPELLEE

Fla. 4th DCA | 2013-06-05
No. 4D12-1979
GERBER and LEVINE, JJ., concur.
114 So. 3d 451 Florida District Court of Appeal, Fourth District (2013) Positive Treatment
Cited by 6 cases

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Holding

The court held that the trial court erred in withholding adjudication on a third felony drug charge when a statute prohibited it.

Facts & Procedural History

The defendant was charged with possession of cocaine, having previously had adjudication withheld on two prior felony drug offenses. Despite the State…

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Topics
Statutory Prohibition Felony Offense Withheld Adjudication Prior Convictions

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Opinion of the Court
MAY, C.J.

MAY, C.J.

The State appeals the defendant’s sentence where the trial court withheld adjudication on the defendant’s third felony drug charge. The defendant concedes error. We reverse.

The State charged the defendant with possession of cocaine. Prior to this charge, the defendant had been sentenced for possession of cocaine and delivery of cocaine. In each instance, adjudication had been withheld. No one disputes these facts.

At sentencing, the defense again requested the trial court to withhold adjudication because the defendant was successfully participating in drug court, remorseful, and young. The State objected and argued that section 775.08485(l)(c), Florida Statutes (2012), prohibited the trial court from withholding adjudication a third time. The trial court nevertheless withheld adjudication.

Section 775.08435(l)(c) prohibits 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 lengthy prison sentence, the way it was drafted.” Despite the court’s findings, section 775.08435(l)(c) prohibits the trial court from withholding adjudication in this circumstance. We therefore reverse the sentence and remand the case to the trial court to re-sentence the defendant in accord with section 775.08435(l)(c).

Reversed and Remanded.

GERBER and LEVINE, JJ., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Braine v. State, 255 So. 3d 470 (Fla. 2d DCA 2018)
  • State v. LY, 208 So. 3d 330 (Fla. 5th DCA 2017)
    …adjudication for the third-degree felony because Ly had 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 p…
  • State v. Tammara Ester, 264 So. 3d 979 (Fla. 4th DCA 2019)

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