SHATELL MACKEY
v.
STATE OF FLORIDA
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A trial court's withholding of adjudication of guilt when a jail sentence is imposed is improper under Florida law, but the error is not reviewable when not preserved for appeal.
[1] Under Florida Rule of Criminal Procedure 3.670, adjudication of guilt cannot be withheld when a jail sentence is imposed, but may be withheld when the defendant is placed…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“adjudication cannot be withheld if a jail term is imposed. However, adjudication can be withheld if the defendant is put on probation rather than incarcerated.”
Judge Lambert citing State v. Seward, explaining the rule that adjudication cannot be withheld with jail sentences but can be withheld with probation.
Mackey pleaded nolo contendere to burglary of an occupied conveyance and battery. The trial court placed her on community control followed by probatio…
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
SHATELL MACKEY,
Appellant,
v. Case No. 5D21-4
STATE OF FLORIDA,
Appellee. ________________________________/
Decision filed May 14, 2021
Appeal from the Circuit Court for Volusia County, Dawn D. Nichols, Judge.
Matthew J. Metz, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Roberts
J.
Bradford, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
AFFIRMED.
HARRIS and NARDELLA, JJ., concur.
LAMBERT, J., concurs specially with opinion.
2
LAMBERT, J., concurring specially.
5D21-4
Shatell Mackey pleaded nolo contendere to charges of burglary of an occupied conveyance and battery. Consistently with Mackey’s plea agreement with the State, the trial court placed her on a term of community control to be followed by probation for the burglary charge and sentenced Mackey to serve two days in jail, with an award of two days of jail credit, for the battery. The court withheld an adjudication of guilt on each count. I write briefly to comment on the jail sentence.
It is improper to withhold an adjudication of guilt when only a jail sentence is imposed. In State v. Seward, our sister court explained: Under Florida Rule of Criminal Procedure 3.670 and Thomas v. State, 356 So. 2d 846 (Fla. 4th DCA 1978), adjudication cannot be withheld if a jail term is imposed. However, adjudication can be withheld if the defendant is put on probation rather than incarcerated. See State v. Scarantino, 543 So. 2d 399 (Fla. 4th DCA 1989).
Since both the defendant and the State were satisfied with the withholding of adjudication, we remand to the trial court with instructions to impose probation with a condition that the defendant serve two days in jail, with credit for the two days which she has already served.
543 So. 2d 398, 399 (Fla. 4th DCA 1989).
In the instant case, because the propriety of the trial court withholding an adjudication of guilt when it imposed a jail sentence on the battery charge
3 has not been challenged or otherwise preserved for review, I agree with the affirmance.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Thomas v. State, 356 So. 2d 846 (Fla. 4th DCA 1978)
- State v. Seward, 543 So. 2d 398 (Fla. 4th DCA 1989)