Summary
In Jean, we held that a defendant who had received two prior withholds from a previous transaction was not permitted to receive a third because of the statute's prohibiting language.
Summary of this case from State v. CharltonOpinion
No. 4D12–1979.
2013-06-5
STATE of Florida, Appellant, v. Brian JEAN, Appellee.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Timothy McCarthy, Judge; L.T. Case No. 10–21164CF10A. Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellant. Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellee.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Timothy McCarthy, Judge; L.T. Case No. 10–21164CF10A.
Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellant. Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellee.
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 775.08435(1)(c), Florida Statutes (2012), prohibited the trial court from withholding adjudication a third time. The trial court nevertheless withheld adjudication.
Section 775.08435(1)(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(1)(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(1)(c).
Reversed and Remanded.